SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) September 1, 1998
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HEMAGEN DIAGNOSTICS, INC.
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(Exact name of Registrant as Specified in Charter)
Delaware 1-11700 04-2869857
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
34-40 Bear Hill Road, Waltham, MA 02451
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (781) 890-3766
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Item 2. Acquisition or Disposition of Assets.
On August 14, 1998, Hemagen Diagnostics, Inc. (the "Company")
entered into an Asset Purchase Agreement (the "Agreement") with
Dade Behring Inc. ("Dade"), for the purchase of certain assets
related to a product line sold under the tradename Analyst(R).
The transaction closed on September 1, 1998. The Analyst(R)
product line consists primarily of the Analyst bench top clinical
chemistry system and the related consumables which are used for
both human and veterinary medical diagnostic testing. The assets
included accounts receivable, inventory, equipment, and certain
intellectual property. The Company agreed to assume certain of
Dade's liabilities including accounts payable, service contracts
and warranty obligations. Pursuant to the Agreement and the
related documents executed by the parties, Dade will continue to
manufacture the products under a separate manufacturing agreement
for a period of up to thirty-six months while the Company
transitions the manufacturing operations to its facility located
in Columbia, Maryland. The Company intends to have the
instruments manufactured by Dade or some other suitable third
party for the foreseeable future.
Under the Agreement, at the closing of the transaction, the
Company paid $3,500,000 in cash and issued a non-interest bearing
promissory note to Dade (the "Note") in the amount of $1,250,000.
Under the terms of the Note, the Company agrees to pay Dade in
full on or before September 1, 2000. The Note is subject to
adjustment due to changes in the net current asset values of the
transferred assets. The Company has also agreed to pay Dade a
royalty on the sale of certain consumables for use with the
Analyst Instrument.
The Company financed the acquisition using $3,500,000 in proceeds
from a $5,000,000 revolving credit line from Bank Boston, N.A.,
which is secured by all the assets of the Company and its
subsidiaries.
All other information required by Item 2 is set forth in the
Asset Purchase Agreement filed as Exhibit 2.1 hereto, the
Amendment to the Asset Purchase Agreement filed as Exhibit 2.2
hereto and the registrant's press release filed as Exhibit 20.1
hereto, respectively, and is incorporated herein by this
reference.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(a) Financial Statements of Businesses Acquired.
The financial statements required by this subsection will be
filed by amendment within 60 days after the date that this
Current Report on Form 8-K must be filed.
(b) Pro Forma Financial Information.
The pro forma financial information required by this subsection
will be filed by amendment within 60 days after the date that
this Current Report on Form 8-K must be filed.
(c) Exhibits.
2.1 Asset Purchase Agreement, dated as of August 14, 1998, between Dade
Behring Inc. and Hemagen Diagnostics, Inc. The schedules and exhibits
are omitted. The schedules and exhibits are listed in the table of
contents to the Asset Purchase Agreement and the table briefly
identifies the contents of all such omitted schedules and exhibits.
The Company agrees to furnish supplementally a copy of any omitted
schedule to the Commission upon request.
2.2 Amendment to Asset Purchase Agreement
20.1 Press Release of Hemagen Diagnostics, Inc., dated September 2, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto authorized.
HEMAGEN DIAGNOSTICS, INC.
Dated September 15, 1998 By /s/ Carl Franzblau
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Carl Franzblau, Ph.D.
President and Chairman
of the Board of Directors
EXHIBIT INDEX
Exhibit No. Description
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2.1 Asset Purchase Agreement, dated as of August 14, 1998, between Dade
Behring Inc. and Hemagen Diagnostics, Inc.
2.2 Amendment to Asset Purchase Agreement, dated as of August 31, 1998,
between Dade Behring Inc. and Hemagen Diagnostics, Inc.
20.1 Press Release of Hemagen Diagnostics, Inc., dated September 2, 1998.
EXHBIT 2.01
ASSET PURCHASE AGREEMENT
(ANALYST DIVISION)
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by and between
DADE BEHRING INC., as Seller,
and
HEMAGEN DIAGNOSTICS, INC., as Purchaser
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Dated as of August 14, 1998
SCHEDULES
Schedule 1.1.1 Equipment; Other Personalty
Schedule 1.1.3 Inventory
Schedule 1.1.4 Receivables
Schedule 1.1.6 Business Records
Schedule 1.3.4 Payables
Schedule 4.1.4 Financial Statement
Schedule 4.1.5 Litigation
Schedule 4.1.6 Proprietary Rights
Schedule 4.1.7 Compliance with Laws; Governmental Approvals
Schedule 4.1.8 Assets
Schedule 4.1.9 Contracts
EXHIBITS
Exhibit A Promissory Note
Exhibit B Manufacturing Agreement
Exhibit C Proprietary Rights Agreement
Exhibit D Transition Services Agreement
Exhibit E Opinion of Counsel to the Seller
Exhibit F Opinion of Counsel to the Purchaser
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (including all exhibits, schedules, and
other attachments hereto, this "Agreement") dated as of as of August 14,
1998 is by and between Hemagen Diagnostics, Inc., a Delaware corporation
(the "Purchaser"), and Dade Behring Inc., a Delaware corporation (the
"Seller"). The Purchaser and the Seller are sometimes referred to herein as
the "Parties."
Unless otherwise indicated, capitalized terms used but not defined
prior to the first usage herein are defined in Section 9.1.
WHEREAS, the Seller owns and operates the Analyst Business;
WHEREAS, the Purchaser desires to purchase from the Seller and the
Seller desires to sell to the Purchaser certain assets of the Analyst
Business, and the Seller desires to transfer to the Purchaser and the
Purchaser desires to assume from the Seller certain liabilities of the
Purchaser, in each case upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements made herein, and of the mutual benefit derived hereby, the
Parties, intending to be legally bound, agree and act as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
I.1 Purchased Assets. On and subject to the terms and conditions set
forth in this Agreement, at the closing the Seller shall sell, assign,
transfer and deliver to the Purchaser, and the Purchaser shall purchase from
the Seller all of the Seller's right, title, and interest in and to the
following (collectively, the "Purchased Assets"):
I.1.1 Machinery and Equipment. The machinery and equipment
set forth on Schedule 1.1.1 hereto (the "Equipment").
I.1.2 Other Personal Property. The other personal property
set forth on Schedule 1.1.1 hereto (the "Other Personalty").
I.1.3 Inventory. The gross inventories of raw materials,
work in process, finished goods and packaging materials set forth on
Schedule 1.1.3 (the "Inventory").
I.1.4 Receivables. The gross trade accounts receivables, if
any, set forth on Schedule 1.1.4 (the "Receivables").
I.1.5 Contracts. All sales orders, purchase orders,
contracts, distribution agreements, development agreements, consulting
agreements, OEM agreements, and the like (to the extent transferable
or assignable) which relate exclusively to the Analyst Business. All
material written agreements relating exclusively to the Analyst
Business are set forth on Schedule 4.1.9, to the extent they have not
been terminated on or before the Closing in the ordinary course of
business (the "Contracts").
I.1.6 Business Records. All of Seller's records or files,
regardless of whether proprietary, confidential or otherwise (subject
to third party confidentiality restrictions or legally required
consents), to the extent such records relate exclusively to the
Analyst Business (or the Continued Employees), including data to
decision-tree software, all available laboratory notebooks and
prosecution files relating to the owned Proprietary Rights to be
assigned to the Purchaser pursuant to the Proprietary Rights
Agreement, market information, sales aids, customer and supplier
lists, manufacturing procedures and records, protocols and the like
including without limitation the materials set forth on Schedule
1.1.6, but excluding the Technical Information (as defined in the
Proprietary Rights Agreement) which is transferred to Purchaser
pursuant to the Proprietary Rights Agreements. The Seller hereby
reserves the right to retain a copy of such Business Records for its
use.
I.1.7 Proprietary Rights. The proprietary rights transferred
pursuant to the Proprietary Rights Agreement.
I.2 Excluded Assets. Notwithstanding anything express or implied to
the contrary contained in this Agreement, the Purchased Assets do not
include any assets of the Seller or its Affiliates other than the specific
assets expressly identified in Section 1.1 (the "Excluded Assets"). Without
limiting the generality of the foregoing, the Excluded Assets shall include,
without limitation, cash, notes receivable, all prepaid taxes (except
personal property tax on Equipment owned by Seller placed at customer sites
(the "Seed Equipment") expenses or allowances, interests in insurance
policies, real properties, facilities, computer systems (including voice
mail, freight related systems, software and order entry systems), choses of
action (other than the right to sue for and recover damages in respect of
any past infringements of Schedule 1.01 Patent transferred to the Purchaser
pursuant to the Proprietary Rights Agreement), and the use of the "Dade" or
"DuPont" name, except as expressly set forth in the Transition Services
Agreement.
I.3 Assumption of Certain Liabilities On and subject to the terms
and conditions set forth herein, at the Closing the Purchaser shall assume
and will be liable for the following obligations of the Seller (the "Assumed
Liabilities"):
I.3.1 Warranty Obligations. All liabilities and obligations
of the Seller arising under the terms of product warranties for
service, repair, replacement, or refund of the purchase price of
products of the Analyst Business sold prior to the Closing that are
returned by customers under warranty after the Closing Date, but not
any other liabilities or obligations relating to such products,
including without limitation any liabilities or obligations related to
or arising, directly or indirectly, out of or in connection with any
actual or alleged personal injury, death, and/or property damage
caused or alleged to be caused by such products, provided that such
actual or alleged personal injury, death, and/or property damage is
not caused directly or indirectly by the actions or inactions of
Purchaser.
I.3.2 Post-Closing Obligations. All liabilities and
obligations of the Seller to the extent they arise out of or relate
to the ownership, use or operation of the Analyst Business or the
Purchased Assets after the Closing Date, including, but not limited to
obligations to sell products.
I.3.3 Infringement Claims. All liabilities and obligations
which arise out of or relate to any claim or action arising out of the
operation or ownership of the Analyst Business after the Closing Date
alleging, with respect to the Proprietary Rights to be transferred
pursuant to the Proprietary Rights Agreement, infringement,
misappropriation or other conflict with the Proprietary Rights of any
third party.
I.3.4 Payables. All trade accounts payable listed in the
attached Schedule I.3.4.
I.3.6 Contracts. All liabilities and obligations under the
Contracts to the extent they arise out of or relate to the ownership,
use or operation of the Analyst Business or the Purchased Assets after
the Closing Date including without limitation the deferred service
liabilities associated with the Service Contracts and the royalty
obligations pursuant to the License Agreements.
I.4 Excluded Liabilities. Other than as set forth in Section 1.3
above, the Purchaser shall not assume or become liable for (and, thus
"Assumed Liabilities" shall not include) any other liabilities of the Seller
(the "Excluded Liabilities").
I.5 Third Party Consents.
(a) The Seller makes no warranty with regard to the
assignability of rights or delegation of duties under the Contracts.
Subject to confidentiality restrictions, the Purchaser shall form its
own opinion with regard to the enforceability of the commitments by
any party thereto therein contained, compliance by the other parties
thereto with their undertakings thereunder, assignability and
delegation thereof, and ongoing obligations of the Purchaser to such
other parties after the Purchaser's assumption of such obligations as
set forth herein. For any Contracts that are not transferable by the
Seller without the consent of another party, it shall be the
Purchaser's responsibility to obtain the necessary consent to succeed
to the Seller's rights and duties thereunder, the cost of which is to
be borne by the Purchaser. The Seller shall provide reasonable
assistance to the Purchaser in the Purchaser's efforts to obtain such
consents.
(b) If any consent or waiver of a third party or governmental
agency necessary for the transfer and assignment of any Contract or
other agreement to the Purchaser hereunder is not obtained or if such
assignment is not permitted irrespective of consent and the Closing
hereunder is consummated, the Seller shall continue to cooperate with
the Purchaser to obtain such consents and waivers and shall cooperate
with the Purchaser in a mutually agreeable arrangement designed to
provide the Purchaser with the rights and benefits (subject to the
obligations) under such Contracts and other agreements.
ARTICLE II
THE PURCHASE PRICE
II.1 The Purchase Price. Subject to the adjustment pursuant to
Section II.2, the "Purchase Price" for the Purchased Assets, and for the
covenants set forth in Section VI, and for all other rights and obligations
contemplated hereunder (including, without limitation, the Purchaser's
assumption of liabilities as provided in Section 1.3) shall be equal to Four
Million, Seven Hundred Fifty Thousand and 00/100 U.S. Dollars
($4,750,000.00). At Closing:
(a) the Purchaser will pay Three Million, Five Hundred Thousand
and 00/100 U.S. Dollars ($3,500,000.00) to the Seller by wire
transfer ; and
(b) the Purchaser will execute and deliver to the Seller a non-
negotiable, non-interest bearing (up to the due date of two (2) years
from the date hereof [the "Due Date") promissory note in the form set
forth in the attached Exhibit A and in the original principal amount
of One Million, Two Hundred Fifty Thousand and 00/100 U.S. Dollars
($1,250,000.00) shall be payable in full by the Due Date. Any
mutually agreed upon adjustments to the Purchase Price permitted
pursuant to Section 2.2 shall be off set against the promissory note
but in no event shall the promissory note be reduced to less than 25%
of the Purchase Price.
II.2 Purchase Price Adjustment.
II.2.1 (a) The Purchase Price will be adjusted as set forth in
this Section II.2. No later than the seventy-fifth (75) day following
the Closing Date, Seller shall furnish to Purchaser a statement
setting forth (a) the Net Working Capital of Seller as of the close of
business on the Closing Date (the "Final Net Working Capital") and (b)
the fixed assets set forth on Schedule 1.1 (collectively the "Closing
Balance Sheet"). The Closing Balance Sheet may be audited by an
accounting firm as chosen by Purchaser and shall be prepared in
accordance with GAAP. Any and all fees charged by such accounting firm
for such audit will be paid by Purchaser. For purposes of this
Agreement, "Net Working Capital" shall mean the difference between (a)
the Inventory and Receivables of Seller and (b) the sum of all
accounts payable, deferred revenue accounts and accrued royalties. The
Closing Balance Sheet shall not reflect any cash, marketable
securities or indebtedness for borrowed money, and such excluded
indebtedness shall be the sole responsibility of Seller. Seller shall
give Purchaser access to its books and records relating to the
Business to the extent reasonably requested by Purchaser for purposes
of reviewing the Closing Balance Sheet. Seller shall make available
to Purchaser copies of all work papers (including, but not limited to,
Seller's accountants' work papers), and shall provide access to any of
Seller's books and records supporting the Final Net Working Capital.
Unless Purchaser notifies Seller that it disagrees with the Final Net
Working Capital of the Closing Balance Sheet within sixty (60) days
after receipt thereof by written notice ("Purchaser's Notice") setting
forth all items of disagreement (each an "Item of Dispute"), the
Closing Balance Sheet shall be conclusive and binding upon Seller and
Purchaser. If Purchaser delivers to Seller a Purchaser's Notice
within such sixty (60) day period, then Seller and Purchaser shall use
reasonable efforts to resolve their differences with respect thereto
for at least fifteen (15) days following receipt of the Purchaser's
Notice by Seller. If any Item of Dispute is not resolved by Seller
and Purchaser within such fifteen (15) day period, either Party may
elect to have such Item of Dispute referred to KPMG Peat Marwick (the
"Firm") for resolution, by notice to the other Party. The Firm shall
make a determination on each Item of Dispute so submitted, as well as
such modifications, if any, to the Final Net Working Capital as
reflect such determination, and the same shall be conclusive and
binding upon the parties. The fees and expenses of the Firm shall be
allocated between (and borne by) Purchaser and Seller in inverse
proportion to the amount that a Party's claim bears to the award
actually awarded.
(b) No later than the thirtieth (30th) day following the
engagement of the Firm (as evidenced by its written acceptance, by
facsimile or otherwise, to both Parties), the Parties shall submit
briefs to the Firm (with a copy to the other Party) setting forth
their respective positions regarding the Items of Dispute, and not
later than the sixtieth (60th) day following such engagement the
Parties shall submit reply briefs (with a copy to the other Party).
The Firm shall be requested to render its decision resolving the Items
of Dispute within thirty (30) days after submittal of the reply
briefs. If additional briefing, hearing, or other information is
required by the Firm, the Firm shall give notice thereof to the
Parties as soon as practicable, and the Parties shall promptly respond
with a view to minimizing any delay in the decision date.
II.2.2 The Purchase Price will be adjusted, and such adjustment
shall be payable as follows:
(a) If the Final Net Working Capital is less than
$2,611,550.00 Seller shall pay to Purchaser an amount equal to
the difference between $2,749,000.00 and the Final Net Working
Capital.
(b) If the Final Net Working Capital is more than
$2,886,450.00, Purchaser shall pay to Seller an amount equal to
the difference between the Final Net Working Capital and
$2,749,000.00.
II.2.3 Except as adjusted pursuant to Section 2.1 (b), all
adjustments to the Purchase Price shall be paid by a wire transfer of
immediately available funds in United States currency made to an
account designated by the Party to receive such payment. Any amount
not in dispute under this Section shall be due and payable
immediately. Any amount in dispute shall be due and payable within
ten (10) days after the resolution of the dispute pursuant to this
Section. Any amount due because the Final Net Working Capital exceed
$3,100,000.00 will be due and payable on the second anniversary of the
date hereof.
ARTICLE III
THE CLOSING
III.1 The Closing. The closing of the transaction contemplated by
this Agreement (the "Closing") shall take place at the offices of Epstein,
Becker & Green, P.C. at 75 State Street, Boston, MA 02109, counsel to
BankBoston N.A., the Purchaser's lender, at 10:00 AM on August 31, 1998 or
at such other place or on such other date as may be mutually agreeable to
the Seller and the Purchaser. The time and date of the Closing are referred
to herein as the "Closing Date."
At the Closing:
(a) Each of the Seller and the Purchaser will execute and deliver to
the other a Contract Manufacturing Agreement in the form attached hereto as
Exhibit B (the "Manufacturing Agreement").
(b) Each of the Seller and the Purchaser will execute and deliver to
the other a Proprietary Rights Agreement in the form attached hereto as
Exhibit C (the "Proprietary Rights Agreement".
(c) Each of the Seller and the Purchaser will execute and deliver to
the other a Transition Services Agreement in the form attached hereto as
Exhibit D (the "Transition Services Agreement," and together with this
Agreement, the Manufacturing Agreement, and the Proprietary Rights
Agreement, the "Transactional Documents").
(d) Each of the Seller and the Purchaser will execute and deliver to
the other a certificate of its Secretary certifying (i) attached copies of
its Certificate of Incorporation and by-laws, (ii) copies of the resolutions
of its Board of Directors and (if required) stockholders, respectively,
authorizing this Agreement and the other Transactional Documents and the
transactions contemplated hereby and thereby, and (iii) the incumbency and
signatures of its officers executing any agreement, instrument, certificate,
or other document in connection with the Closing.
(e) The Purchaser will deliver to the Seller a written legal opinion
of the Purchaser's in-house legal counsel, addressed to the Seller, dated as
of the Closing Date, and substantially in the form attached hereto as
Exhibit E.
(f) The Seller will deliver to the Purchaser a written legal opinion
of the Seller's in-house legal counsel, addressed to the Purchaser and its
senior lender, BankBoston, N.A., dated as of the Closing Date, and
substantially in the form attached hereto as Exhibit F.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
IV.1 Representations and Warranties of the Seller. The Seller
represents and warrants to the Purchaser as of the date hereof and except to
the extent a representation and warranty relates to a specified date, as of
the Closing Date as follows:
IV.1.1 Corporate Status. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and has all requisite corporate power and authority
to own or lease and operate its properties and to carry on its
business as now being conducted.
IV.1.2 Authorization. The Seller has all requisite power and
full legal right and authority to execute and deliver the
Transactional Documents to which it is a party, to perform fully its
obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery by the Seller of the Transactional Documents to which it is a
party, and the consummation of the transactions contemplated hereby
and thereby, have been duly authorized by all requisite corporate
action of the Seller. The Seller has duly executed and delivered this
Agreement, and each of the other Transactional Documents to which it
is a party, when delivered by the Seller pursuant to the terms hereof,
will have been duly executed and delivered by the Seller. This
Agreement is a legal, valid and binding obligation of the Seller, and
each of the other Transactional Documents to which it is a party, when
executed and delivered pursuant to the terms hereof, will constitute a
legal and binding obligation of the Seller, in each case enforceable
against it in accordance with its terms, except as such enforceability
may be limited by (a) applicable insolvency, bankruptcy,
reorganization, moratorium or other similar Laws affecting creditors'
rights generally and (b) applicable equitable principles (whether
considered in a proceeding at Law or in equity).
IV.1.3 No Conflicts. The execution, delivery and performance
by the Seller of the Transactional Documents, and the consummation of
the transactions contemplated hereby and thereby, do not and will not
conflict with or result in a violation of or a default under (with or
without the giving of notice or the lapse of time or both) (a) any
Applicable Law applicable to the Seller or (b) the certificate of
incorporation or by-laws or other organizational documents of the
Seller, other than any Applicable Law with respect to which a
conflict, violation or default would not have a Material Adverse
Effect.
IV.1.4 Financial Statement. Schedule 4.1.4 attached hereto
consists of copies of the audited, compiled statement of net assets to
be sold of the Analyst Business as of December 31, 1996, December 31,
1997, and March 31, 1998, respectively, and the related audited,
compiled statements of income and cash flows, respectively, of the
Analyst Business, for the calendar years 1996 and 1997, and the three
months ended March 31, 1998, respectively certified by Price
WaterhouseCoopers LLP, independent public accountants. In addition
Schedule 4.1.4 consists of an unaudited, compiled P & L statement of
the Analyst Business as of June 30, 1998. Each of such financial
statements has been prepared in accordance with GAAP, consistently
applied; each of such statements of net assets to be sold fairly
presents the financial condition of the Analyst Business as of its
respective date; and each of such statements of income and cash flows,
respectively, fairly presents the results of operations or cash flows,
as the case may be, of the Analyst Business for the period covered
thereby.
IV.1.5. Litigation. Except as set forth on Schedule 4.1.5
attached hereto, there is no litigation, arbitration, action, claim,
suit, proceeding, investigation, judgment, injunction, order or decree
(whether conducted by any judicial or regulatory body, arbitrator, or
other person excepting U.S. and corresponding foreign patent offices)
pending, or, to the Seller's Knowledge, threatened, against the Seller
which relates (i) to the Seller's knowledge, to the Analyst Business,
which if determined adversely to the Seller would have a Material
Adverse Effect, or (ii) to the transactions contemplated by this
Agreement.
IV.1.6 Proprietary Rights.
(a) Schedule 4.1.6(a) attached hereto lists all of the material
Proprietary Rights which the Seller currently possesses in the conduct
of the Analyst Business.
(b) Except as indicated in Schedule 4.1.6(b), the Seller owns and
possesses rights, title and interest in and to all of the intellectual
property to be transferred to the Purchaser pursuant to the
Proprietary Rights Agreement, which have been effectively so
transferred to the Purchaser pursuant to that agreement. The Seller
owns or is licensed to use, and in any event has the full and
unrestricted right to license to the Purchaser, the intellectual
properties and proprietary rights to be licensed to the Purchaser
pursuant to the Proprietary Rights Agreement.
(c) Schedule 4.1.6(c) lists the royalties paid to third parties by Seller
in the operation of the Analyst Business.
(d) Except as set forth in Schedule 4.1.6(d), the Seller has not received
with respect to the Analyst Business any written notices of
invalidity, infringement or misappropriation from any third party
relating to the Proprietary Rights which are listed in Schedule
4.1.6(a) within the past three (3) years.
(e) Except as set forth in Schedule 4.1.6(e), no litigation (or other
proceedings in or before any court or other governmental,
adjudicatory, arbitral, or administrative body, excepting U.S. and
corresponding foreign patent offices) relating to the intellectual
properties and proprietary rights to be transferred or licensed to the
Purchaser pursuant to the Proprietary Rights Agreement is pending, or
to the best of the Seller's knowledge, threatened.
(f) The Seller has maintained the same degree of security for the
preservation of the secrecy and proprietary nature of such of the
intellectual properties and proprietary rights purported to be
transferred or licensed to the Purchaser pursuant to the Proprietary
Rights Agreement as its other intellectual properties and proprietary
rights.
IV.1.7 Compliance with Laws; Governmental Approvals.
Except as disclosed in Schedule 4.1.7 attached hereto, since May
31, 1996, the Seller has not received any notice with respect to
the Analyst Business alleging any violation of Applicable Law,
except for such violation which would not have a Material
Adverse Effect. The Seller holds all Governmental Approvals
necessary for the conduct of the Analyst Business as now
conducted, except where the failure to obtain such Governmental
Approvals would not have a Material Adverse Effect. Except as
disclosed in Schedule 4.1.7, all such Governmental Approvals are
in full force and effect, and the Analyst Business is in
compliance in all material respects with each such Governmental
Approval, except where such noncompliance would not have
Material Adverse Effect.
IV.1.8 Assets. Except as disclosed in Schedule 4.1.8 attached
hereto, the Seller has good title to or a valid leasehold interest in
or license to use and hereby transfers to Purchaser all of the
Purchased Assets, free and clear of any and all Liens. Purchaser
agrees and understands that Seed Equipment is located at the Analyst
customer sites and Seller extends no guarantee and gives no warranty
that Purchaser can recover or reclaim such Seed Equipment from such
customers.
IV.1.9 Contracts. Except for (i) this Agreement, the other
Transactional Documents and the contracts set forth on the other
Schedules to this Agreement, and (ii) any purchase order for goods or
services in the ordinary course of business, Schedule 4.1.9 attached
hereto lists all of the following written contracts to which the
Seller is a party as of the date of this Agreement that relate
exclusively to the Analyst Business:
(a) supply agreements;
(b) service contracts;
(c) consulting agreements; and
(d) license agreements.
Except as set forth on Schedule 4.1.9, the Seller has not received
notice since May 31, 1996 of any default under any of the foregoing
contracts that has not been cured or notice of intent to cancel any of
the foregoing contracts.
Schedule 4.1.9 of the Disclosure Schedule lists the five largest
suppliers of the Seller used exclusively in the Analyst Business
during the preceding twelve-month period.
IV.1.10 Brokers, Finders, etc. . All negotiations relating to
this Agreement and the transactions contemplated hereby have been
carried on without the participation of any Person acting on behalf of
the Seller, except Vector Securities International Inc., in such
manner as to give rise to any valid claim against the Purchaser for
any brokerage or finder's commission, fee or similar compensation.
IV.1.11 Absence of Certain Changes. Since March 31, 1998,
there has not been: (i) any change in the Analyst Business, other
than changes that have been both in the ordinary course of the Analyst
Business, consistent with past practice, and both individually and in
the aggregate, not having a Materially Adverse Effect to the Analyst
Business; (ii) any acquisition or disposition by the Seller of any
material asset or property relating to the Analyst Business, other
than in the ordinary course of the Analyst Business, consistent with
past practice; (iii) any material damage to or destruction or loss of
material assets used in the Analyst Business (regardless of whether
covered by insurance); (iv) any forgiveness or cancellation by the
Seller of any debt or claim, or any waiver by the Seller of any right
of material value, relating to the Analyst Business, other than
compromises of accounts receivable in the ordinary course of the
Analyst Business, consistent with past practice; (v) any incurrence by
the Seller in connection with the Analyst Business of any obligations
or liabilities, whether absolute, accrued, contingent or otherwise
(including without limitation liabilities as guarantor or otherwise
with respect to obligations of others), other than obligations and
liabilities incurred in the ordinary course of the Analyst Business,
consistent with past practice; (vi) any incurrence or imposition of
any Lien on any of the Purchased Assets; or (vii) any discharge or
satisfaction by the Seller of any Lien or payment by the Seller of any
obligation or liability (fixed or contingent) relating to the Analyst
Business, other than current liabilities incurred in the ordinary
course of the Analyst Business, consistent with past practice.
IV.2. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Seller as of the date hereof, except to the
extent a representation and warranty relates to a specified date, as of the
Closing Date as follows:
IV.2.1. Corporate Status. The Purchaser is a Delaware
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware with all requisite corporate
power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
IV.2.2 Authorization. The Purchaser has all requisite power
and full legal right and authority to execute and deliver
Transactional Documents to which it is a party, to perform fully its
obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery by the Purchaser of the Transactional Documents to which it
is a party, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by all requisite
corporate action of the Purchaser. The Purchaser has duly executed
and delivered this Agreement, and each of the other Transactional
Documents to which it is a party, when delivered by the Purchaser
pursuant to the terms hereof, will have been duly executed and
delivered by the Purchaser. This Agreement is a legal, valid and
binding obligation of the Purchaser and each of the other
Transactional Documents to which it is a party, when executed and
delivered pursuant to the terms hereof, will constitute a legal valid
and binding obligation of the Purchaser, enforceable against it in
accordance with its terms, except as such enforceability may be
limited by (a) applicable insolvency, bankruptcy, reorganization,
moratorium or other similar Laws affecting creditors' rights
generally, and (b) applicable equitable principles (whether considered
in a proceeding at Law or in equity).
IV.2.3 No Conflicts. The execution, delivery and performance
by the Purchaser of the Transactional Documents, and the consummation
of the transactions contemplated hereby and thereby, do not and will
not conflict with or result in a violation of or a default under (with
or without the giving of notice or the lapse of time or both) (a) any
Applicable Law applicable to the Purchaser, (b) the certificate of
incorporation or by-laws or other organizational documents of the
Purchaser, or (c) any material contract, agreement or other instrument
to which the Purchaser is a party or by which the Purchaser is bound.
IV.2.4 Litigation. There is no action, claim, suit, judgment,
injunction, order or decree pending, or to the Purchaser's Knowledge
threatened, against the Purchaser which relates to the transactions
contemplated by this Agreement.
IV.2.5 Available Funds. The Purchaser will have on the Closing
Date, sufficient funds available to pay that portion of the Purchase
Price due on the Closing Date.
IV.2.6 Brokers, Finders, etc. All negotiations relating to
this Agreement and the transactions contemplated hereby have been
carried on without the participation of any Person acting on behalf of
the Purchaser in such manner as to give rise to any valid claim
against the Seller for any brokerage or finder's commission, fee or
similar compensation.
ARTICLE V
TAXES
V.1 Allocation of Purchase Price. Within seventy-five (75) days
after the Closing Date, the Purchaser and the Seller will determine the
allocation of the Purchase Price (including the amount of liabilities
assumed by the Purchaser, as determined at the time of Closing) among the
Purchased Assets. Such allocation shall be used by the parties in preparing
(i) all Tax Returns and (ii) Form 8023 for the Purchaser and the Seller.
The Purchaser and the Seller shall each file Form 8023, prepared in
accordance with this Section 5.1, with its federal Income Tax Return for its
taxable period which includes the Closing Date. All allocations made
pursuant to this Section 5.1 shall be binding upon the Parties and upon each
of their successors and assigns, and the Parties shall report the
transactions contemplated by this Agreement in accordance with such
allocations.
V.2 Prorations. All personal property Taxes on Seed Equipment for a
taxable period which includes (but does not end on) the Closing Date shall
be apportioned between the Seller and the Purchaser as of the Closing Date
based on the number of days of such taxable period up to the Closing Date
(the "Pre-Closing Tax Period") and the number of days in such taxable
period, including and after the Closing Date (the "Post-Closing Tax
Period"). The Seller shall be liable for the proportionate amount of such
Taxes that is attributable to the Pre-Closing Tax Period and the Purchaser
shall be liable for the proportionate amount of such Taxes that is
attributable to the Post-Closing Period. Seller shall provide reasonable
assistance to Purchaser in determining the Taxes to be paid by Purchaser
pursuant to this Section.
V.3 Sales and Transfer Taxes. All transfer, documentary, sales,
use, stamp, registration, value-added and other Taxes and fees, including
any penalties and interest thereon (collectively, "Transfer Taxes") incurred
in connection with this Agreement shall be paid by the Purchaser when due,
and the Purchaser will, at its own expense, file all necessary Tax Returns
and other documentation with respect to such Transfer Taxes and, if
required, by applicable law, the Seller will join in the execution of any
such Tax Returns and other documentation.
V.4 Cooperation on Tax Matters. The Purchaser and the Seller shall
cooperate fully, as and to the extent reasonably requested by the other
Party, in connection with any audit, litigation or other proceeding with
respect to Taxes. Such cooperation shall include the retention and (upon
the other Party's request) the provision of records and information which
are reasonably relevant to any such audit, litigation or other proceeding
and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.
The Purchaser and the Seller agree (i) to retain all books and records with
respect to Tax matters pertinent to the Seller relating to any taxable
period beginning before the Closing Date until the expiration of the statute
of limitations (and, to the extent notified by the Purchaser or the Seller,
any extensions thereof) of the respective taxable periods, and to abide by
all record retention agreements entered into with any taxing authority, and
(ii) to give the other Party reasonable written notice prior to
transferring, destroying or discarding any such books and records and, if
the other Party to take possession of such books and records.
ARTICLE V(A)
PRE-CLOSING COVENANTS
V(A).1 Pre-Closing Covenants of the Seller
V(A).1.1 Conduct of Analyst Business. The Seller will conduct
the Analyst Business in the ordinary course of business and consistent
with past practice. From the date hereof to the Closing Date, except
as expressly permitted or required by this Agreement or as otherwise
consented to by the Purchaser in writing (which consent shall not be
unreasonably withheld or delayed), the Seller will not:
(a) dispose of any Purchased Assets other than in the
ordinary course;
(b) transfer or license any material Proprietary Rights
or license agreements listed in Schedule 1.04 of the Proprietary
Rights Agreement;
(c) enter into any contract or commitment, or engage in
any other transaction, with respect to the Analyst Business,
other than in the ordinary course of business and consistent
with past practice;
(d) increase the compensation (including benefits)
payable or to become payable to any of the employees exclusively
involved in the Analyst Business and described in paragraph
8.16, other than in the ordinary course of business and
consistent with past practice.
V(A).1.2 Pre-Closing Access and Information. During the term
of this Agreement, the Seller will give the Purchaser and its
accountants, counsel, consultants, employees and agents, reasonable
access, during normal business hours and upon reasonable notice, to
all documents and information, properties, assets, books, contracts,
commitments, reports and records (except for confidential information
or privileged documents) that relate to the Analyst Business, as the
Purchaser may from time to time reasonably request. In addition, the
Seller will permit the Purchaser and its accountants, counsel,
consultants, employees and agents, reasonable access to such personnel
of the Analyst Business during normal business hours and upon
reasonable notice as may be necessary to the Purchaser in its review
of the properties, assets and business affairs of the Analyst
Business.
V(A).1.3 Pre-Closing Actions.
(a) From the date hereof to the Closing Date, the Seller
agrees to use reasonable efforts to take all actions and to do
all things necessary, proper or advisable to consummate the
transactions contemplated hereby by the expected Closing Date.
(b) From the date hereof to the Closing Date, the Seller
will, as promptly as practicable, use reasonable efforts to file
or supply, or cause to be filed or supplied, all applications,
notifications and information required to be filed or supplied
by the Seller pursuant to Applicable Law in connection with this
Agreement and the consummation of the other transactions
contemplated hereby, except for any such actions the failure of
which to take would not have a Material Adverse Effect.
(c) At all times prior to the Closing, the Seller shall
promptly notify the Purchaser in writing of any fact, condition,
event or occurrence that will result in the failure of any of
the conditions contained in Article V(B) to be satisfied by the
Seller promptly upon the Seller becoming aware of the same.
V(A).1.4 Supplemental Information. From time to time before
the Closing, and in any event immediately before the Closing, the
Seller will promptly advise the Purchaser, in writing, of (i) any
Material Adverse Effect or (ii) any matter hereafter arising or
becoming known to the Seller that, if existing, occurring, or known at
or before the date of this Agreement, would have been required to be
set forth or described in the Seller's disclosure schedules to this
Agreement, or that is necessary to correct any information in such
schedules that is or has become inaccurate. No such disclosure will
be taken into account in determining whether the conditions to the
Purchaser's obligations to consummate the transactions contemplated by
this Agreement have been satisfied, but if the Closing occurs, any
such revision or supplement will be deemed to have amended the
Schedules to this Agreement, to have qualified the representations and
warranties contained in Section 4.1, and to have cured any
misrepresentation or breach of warranty that otherwise might have
existed hereunder by reason of such omission or development
(including, without limitation, for purposes of Section 7.2).
V(A).1.5 No Shopping. The Seller will not negotiate for,
solicit, discuss, negotiate, or enter into any agreement or
understanding, whether or not binding, with respect to the issuance,
sale, or transfer of any of the Purchased Assets or the Analyst
Business (other than sales of inventory in the ordinary course of
business) or any merger or other business combination involving the
Analyst Business, to or with any person other than the Purchaser (a
"Prohibited Transaction") provided, however, that any transaction
(whether by merger, consolidation, sale of assets, sale of stock or
otherwise) involving both the Analyst Business and one or more other
business units of the Seller, where the Analyst Business in not the
principal asset included in the transaction (an "Acquisition
Transaction") shall not be considered a Prohibited Transaction
provided that the purchaser in the Acquisition Transaction accepts a
formal assignment of the Agreement and all rights and obligations
under this Agreement, which assignment shall be in forma and substance
reasonably satisfactory to the Purchaser. No such Acquisition
Transaction shall limit the Purchaser's rights hereunder (i.e., such
transaction shall be subject to the Purchaser's rights hereunder).
V(A).2 Pre-Closing Covenants of the Purchaser.
V(A).2.1 Pre-Closing Actions.
(a) From the date hereof to the Closing Date, the
Purchaser agrees to use reasonable efforts to take all actions
and to do all things necessary, proper or advisable to
consummate the transactions contemplated hereby by the expected
Closing Date.
(b) Without limiting in any way the provisions of
subsection (a) above, from the date hereof to the Closing Date,
the Purchaser will, as promptly as practicable, use reasonable
efforts to file or supply, or cause to be filed or supplied, all
applications, notifications and information required to be filed
or supplied by the Purchaser pursuant to Applicable Law in
connection with this Agreement and the consummation of the other
transactions contemplated hereby, except for any such actions
the failure of which to take would not have a material adverse
effect on the financial condition of Purchaser.
(c) At all times prior to the Closing, the Purchaser
shall promptly notify Seller in writing of any fact, condition,
event or occurrence that will or may result in the failure of
any of the conditions contained in Article V(B) to be satisfied
by the Purchaser promptly upon Purchaser becoming aware of the
same.
V(A).2.2 Confidentiality
(a) At all times prior to the Closing, the Purchaser will
treat and hold as such any confidential information it receives
from the Seller or any of its Affiliates or any of their
respective agents or representatives in accordance with the
terms of that certain confidentiality agreement entered into
between Seller and Purchaser (the "Confidentiality Agreement").
(b) To the extent the Purchaser or its agents or
representatives obtains confidential information relating to any
business of the Seller or its Affiliates other than the Analyst
Business, the Confidentiality Agreement shall remain in full
force and effect with respect to such confidential information
beyond the Closing Date notwithstanding anything in the
Confidentiality Agreement to the contrary.
ARTICLE V(B)
CONDITIONS PRECEDENT
V(B).1 Conditions to Obligations of Each Party. The obligations of
the Parties to consummate the transactions contemplated hereby shall be
subject to the fulfillment on or prior to the Closing Date of the following
conditions:
V(B).1.1 No Injunction, etc. Consummation of the transactions
contemplated hereby shall not have been restrained, enjoined or
otherwise prohibited by any order, injunction, decree or judgment of
any court or other Governmental Authority.
V(B).1.2 Other Transaction Documents. The Parties shall have
executed the other Transactional Documents.
V(B).2 Conditions to Obligations of the Purchaser. The obligations
of the Purchaser to consummate the transactions contemplated hereby shall be
subject to the fulfillment on or prior to the Closing Date of the following
additional conditions:
V(B).2.1 Representations, Performance. The representations
and warranties of the Seller contained in Section 4.1 of this
Agreement shall be true and correct in all material respects at and as
of the Closing Date, except where the failure to be true and correct
would not have a Material Adverse Effect. The Seller shall have duly
performed and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date. The Seller
shall have delivered to the Purchaser a certificate, dated the Closing
Date and signed by a duly authorized officer, to the foregoing effect.
V(B).2.2 Due Diligence. The Purchaser will be satisfied, in
all respects and in its reasonable discretion, with the results of its
continuing due diligence investigation with respect to the Purchaser
Assets and the Analyst Business.
V(B).2.3 Financing. The Purchaser will have obtained from
BankBoston N.A. or another financial institution at least $5,000,000
in debt financing for the purchase of the Purchaser Assets, on terms
and conditions satisfactory to the Purchaser in its reasonable
discretion. Purchaser shall have used reasonable efforts to obtain
such financing.
V(B).2.4 Resolutions. The Seller shall have delivered to the
Purchaser copies of the resolutions duly adopted by the Seller's board
of directors or equivalent governing body authorizing the execution,
delivery and performance of this Agreement and each of the other
agreements contemplated hereby.
V(B).3 Conditions to Obligations of the Seller. The obligation of
the Seller to consummate the transactions contemplated hereby shall be
subject to the fulfillment, on or prior to the Closing Date, of the
following additional conditions:
V(B).3.1 Representations, Performance. The representations
and warranties of the Purchaser contained in Section 4.2 of this
Agreement shall be true and correct in all material respects at and as
of the Closing Date. The Purchaser shall have duly performed and
complied in all material respects with all agreements and conditions
required by this Agreement to be performed or complied with by it
prior to or on the Closing Date. The Purchaser shall have delivered
to the Seller a certificate, dated as of the Closing Date and signed
by a duly authorized officer, to the foregoing effect.
V(B).3.2 Resolutions. The Purchaser shall have delivered to
the Seller copies of the resolutions duly adopted by the Purchaser's
Board of Directors authorizing the execution, delivery and performance
of this Agreement and each of the other agreements contemplated
hereby.
ARTICLE V(C)
TERMINATION
V(C).1 Ability to Terminate. The Parties may terminate this Agreement
as provided below:
(a) the Purchaser and the Seller may terminate this Agreement
by mutual written consent at any time prior to the Closing;
(b) the Purchaser may terminate this Agreement by giving
written notice to the Seller if the Closing shall not have occurred on
or before September 15 1998 by reason of the failure of any condition
precedent under Section 5(B).1 or 5(B).2 (unless the failure results
primarily from the Purchaser breaching any representation, warranty,
or covenant contained in this Agreement (excepting Section 4.2.5)
provided, that Purchaser has complied with the last sentence of
Section V(B).2.3);
(c) the Seller may terminate this Agreement by giving written
notice to the Purchaser if the Closing shall not have occurred on or
before September 15, 1998 by reason of the failure of any condition
precedent under Section 5(B).1 or 5(B).3 (unless the failure results
primarily from the Seller breaching any representation, warranty, or
covenant contained in this Agreement); and
(d) either Party may terminate this Agreement by giving written
notice to the other Party if any legal proceedings shall have been
instituted asserting that the transactions contemplated hereby
constitute a violation of applicable antitrust or competition laws.
(e) either Party may terminate this Agreement by giving written
notice to the other Party if the Closing shall not have occurred on or
before October 1, 1998.
V(C).2 Effect of Termination. If any Party terminates this Agreement
pursuant to Section V(C).1, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to the other
Party; provided, however, that the provisions contained in Sections 5(A).1.4
[Supplemental Information], 5(A).2.2 and 6.2.5 [Confidentiality], 6.3.1
[Expenses], 6.3.2 [Brokers], Article 8 and (to the extent applicable)
Article 9 shall survive termination; and provided, further, that any
termination of this Agreement shall not relieve any Party from any liability
for breach of contract to the other Party.
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
VI.1 Covenants and Agreements of the Seller
VI.1.1 Further Assurances. Following the Closing, the Seller
shall from time to time execute and deliver such additional
instruments, documents, conveyances or assurances and take such other
actions as shall be necessary, or otherwise reasonably requested by
the Purchaser, to confirm and assure the rights and obligations
provided for in this Agreement and render effective the consummation
of the transactions contemplated hereby and thereby.
VI.1.2 Receivables. In the event a payment is made to the
Seller of any Receivables transferred to the Purchaser arising out of
any transaction occurring on or before the Closing Date, the Seller
shall promptly forward to the Purchaser the amount of such payment.
VI.1.3 Non-Competition. The Seller hereby expressly covenants
and agrees that for a period of six (6) years from and after the
Closing Date (the "Restricted Period"), the Seller will not
independently develop an Analyst Business based on rotor technology.
Notwithstanding the foregoing and subject to the following sentence,
Seller may acquire or be acquired by (including, without limitation,
any purchase or sale of stock or assets, merger, joint venture or
alliance) a business that otherwise would violate the foregoing
restriction and thereafter develop such business, as long as no more
than 40% of the annual income of such business (measured as of the
date of such transaction) is in businesses which violate the foregoing
restriction. Notwithstanding the foregoing, the Seller may acquire or
be acquired by a business which violates the restrictions of the
preceding sentence, so long as the Seller shall commence procedures to
divest itself of the competing operations of such business within nine
(9) months after such acquisition and complete such divestiture within
eighteen (18) months after such acquisition. The Seller agrees that
any remedy at Law for any breach by it of this Section 6.1.3 would be
inadequate, and the Purchaser would be entitled to injunctive relief
in such a case. If it is ever held that the restrictions placed on
the Seller by this Section 6.1.3 are too onerous and are not necessary
for the protection of the Purchaser, the Parties agree that any court
of competent jurisdiction may reduce the duration or scope hereof, or
delete specific words or phrases, and in its reduced form such
provision will then be enforceable and will be enforced.
VI.1.4 Post-Closing Access and Information. After the Closing
Date, the Seller will (and will cause its accountants, counsel,
consultants, employees and agents to) at the Purchaser's expense,
provide, the Purchaser, and its accountants, counsel, consultants,
employees and agents, with copies of documents, records, work papers
and information with respect to all of such Person's properties,
assets, books, contracts, commitments, reports and records relating to
the Analyst Business which are reasonably necessary or required for
the operation, use, or ownership of the Analyst Business as the
Purchaser may from time to time reasonably request. To the extent the
Purchaser or its agents or representatives obtains confidential
information relating to any business of the Seller or its Affiliates
other than the Analyst Business, that information shall be subject to
paragraph 6.2.3 and 6.2.5.
VI.1.5 Confidential Information. The Seller will maintain the
confidentiality of all confidential or proprietary information
relating exclusively to the Analyst Business, which will be the
exclusive property of the Purchaser; and unless previously authorized
in writing by the Purchaser, and except with respect to information
that has otherwise become public through no action or omission on the
part of the Seller or becomes known to Seller by a third party who has
a right to disclose such information, will not disclose any such
information to any third party, or use it for any purpose, except as
otherwise set forth in this Agreement or the Transactional Documents.
The Seller agrees that any remedy at Law for any breach by it of this
Section 6.1.5 would be inadequate, and the Purchaser would be entitled
to injunctive relief in such a case. If it is ever held that the
restrictions placed on the Seller by this Section 6.1.5 are too
onerous and are not necessary for the protection of the Purchaser, the
Parties agree that any court of competent jurisdiction may reduce the
duration or scope hereof, or delete specific words or phrases, and in
its reduced form such provision will then be enforceable and will be
enforced.
VI.1.6 Non-Solicitation of Employees, Etc. During the first
year of the Agreement, the Seller will not directly or indirectly
recruit, solicit, induce, or attempt to induce any of the employees of
the Purchaser involved in the Analyst Business to terminate their
employment or contractual relationship with the Purchaser; and will
not assist any other person to do so. The foregoing sentence shall not
apply in the event the Purchaser sells, assigns, merges or otherwise
transfers the Analyst Business to or with another Person. The Parties
agree that placement of "help wanted" advertisements in publications
of general circulation shall not constitute a solicitation prohibited
by this Section 6.1.6. The Seller agrees that any remedy at Law for
any breach by it of this Section 6.1.6 would be inadequate, and the
Purchaser would be entitled to injunctive relief in such a case. If
it is ever held that the restrictions placed on the Seller by this
Section 6.1.6 are too onerous and are not necessary for the protection
of the Purchaser, the Parties agree that any court of competent
jurisdiction may reduce the duration or scope hereof, or delete
specific words or phrases, and in its reduced form such provision will
then be enforceable and will be enforced.
VI.1.6 Non-Disparagement. The Seller will not promote or
actively encourage any of Seller's directors, officers, employees,
consultants or agents to disparage or deprecate the Analyst or the
Analyst Business. The parties acknowledge that Seller has or may
acquire products that are directed toward the same market as the
Analyst Business. This provision is not intended to prohibit Seller
from attempting to sell these products to such marketplace by
promoting the advantages of Seller's products over the Analyst
Business. However, in the event Purchaser knows that an employee,
consultant or agent has made a disparaging or deprecating comment
about the Analyst Business, Purchaser shall provide Seller with
written notice describing the action with particularity. Purchaser's
sole remedy shall be that Seller will use its reasonable efforts to
stop such actions. It shall be presumed to be sufficient efforts if
Seller notifies such employee, consultant or agent, in writing, that
such employee, consultant or agent stop such action. Nothing in this
paragraph shall imply that Seller warrants or guarantees that it will
be able to stop such actions.
VI.2 Covenants and Agreements of the Purchaser.
VI.2.1 Further Assurances. Following the Closing, the
Purchaser shall from time to time execute and deliver such additional
instruments, documents, conveyances or assurances and take such other
actions as shall be necessary, or otherwise reasonably requested by
the Seller, to confirm and assure the rights and obligations provided
for in this Agreement and render effective the consummation of the
transactions contemplated hereby and thereby.
VI.2.2 Receivables. In the event payment is made to the
Purchaser of any accounts receivable not constituting Receivables, the
Purchaser shall promptly forward to the Seller the amount of any such
payment.
VI.2.3 Post-Closing Access and Information
(a) After the Closing Date, the Purchaser will (and will
cause its accountants, counsel, consultants, employees and
agents to) give the Seller, and its accountants, counsel,
consultants, employees and agents, full access, during normal
business hours and upon reasonable notice, to all employees,
documents, records, work papers and information with respect to
all of such Person's properties, assets, books, contracts,
commitments, reports and records relating to the Analyst
Business or the Purchased Assets, as the Seller may from time to
time reasonably request. In addition, the Purchaser shall
permit the Seller to make copies at its own expense of any of
the above-mentioned documents, records and information.
(b) The Purchaser will retain all books and records
relating to the Analyst Business or any of Seller's predecessors
in interest for at least seven (7) years or for such longer
period as may be required by applicable law; provided, however,
that laboratory notebooks which relate to Proprietary Rights
transferred pursuant to the Proprietary Rights Agreement shall
be retained and made available to the Seller upon request for a
period of twenty (20) years following the Closing Date. The
Purchaser shall not dispose of or permit the disposal of any
such books and records without first giving sixty (60) days'
prior written notice to the Seller offering to surrender the
same to the Seller at the Seller's expense.
(c) In the event that the Purchaser obtains, either prior
to or after the Closing, any documents, records or information
that, instead of or in addition to relating to the Purchased
Assets, relate to the Seller or any of its Affiliates or any of
their respective operations or businesses, the Purchaser shall
(i) promptly notify the Seller of that fact, (ii) promptly
return such document, record or information to the Seller,
(iii) not use any such document, record or information in any
way, and (iv) keep the content of such document, record or
information confidential in all respects. The Purchaser agrees
that any remedy at Law for any breach by it of this
Section 6.2.3(c) would be inadequate, and the Seller would be
entitled to injunctive relief in such a case. If it is ever held
that the restrictions placed on the Purchaser by this
Section 6.2.3(c) are too onerous and are not necessary for the
protection of the Seller, the Parties agree that any court of
competent jurisdiction may reduce the duration or scope hereof,
or delete specific words or phrases, and in its reduced form
such provision will then be enforceable and will be enforced.
(d) The Parties acknowledge that Purchaser's independent
accounting firm, BDO Seidman LLP must re-audit the financial
statements attached to this Agreement for the Analyst Business
and the audit must be completed in a form acceptable for filing
by the Purchaser with the United States Securities and exchange
Commission ("SEC"). After the Closing Date, the Seller will
(and will cause its accountants, counsel, consultants, employees
and agents to) give the Purchaser and its accountants, full
access, during normal business hours and upon reasonable notice,
to all employees, documents, records, work papers and
information with respect to all of the Seller's properties,
assets, books, contracts, commitments, reports and records
relating to the Analyst Business or the Purchased Assets, as the
Purchaser or its accountants may from time to time reasonably
request. In addition, the Seller shall cooperate and assist in
any reasonable manner in allowing the Purchaser's accountants to
complete their audit in accordance with GAAP and SEC rules and
regulations including but not limited to the signing of any
ordinary and customary documents such as management
representation letters to such accountants and the issuance of
an in-house counsel's legal opinion.
VI.2.5 Confidential Information. The Purchaser will maintain
the confidentiality of all confidential or proprietary information
provided by Seller to Purchaser in connection with this Agreement that
in addition to relating to the Purchased Assets, relate to the Seller
or any of its Affiliates or any of their respective operations or
businesses, which will be the exclusive property of the Seller; and
unless previously authorized in writing by the Seller, and except with
respect to information that has otherwise become public through no
action or omission on the part of the Purchaser or becomes known to
Purchaser by a third party who has a right to disclose such
information, will not disclose any such information to any third
party. In addition, Purchaser shall not use such information for any
purpose, except as required in operating the Analyst Business and all
use shall be internal use only. The Purchaser agrees that any remedy
at Law for any breach by it of this Section 6.2.5 would be inadequate,
and the Seller would be entitled to injunctive relief in such a case.
If it is ever held that the restrictions placed on the Purchaser by
this Section 6.2.5 are too onerous and are not necessary for the
protection of the Seller, the Parties agree that any court of
competent jurisdiction may reduce the duration or scope hereof, or
delete specific words or phrases, and in its reduced form such
provision will then be enforceable and will be enforced.
VI.3 Expenses; Brokers.
VI.3.1 Expenses. Except as otherwise expressly provided for
herein, the Seller, on the one hand, and the Purchaser, on the other
hand, shall bear their respective expenses, costs and fees (including
attorneys' and accountants' fees) in connection with the transaction
contemplated hereby, including the preparation, execution and delivery
of this Agreement and the other Transactional Documents and compliance
herewith (the "Transaction Expenses"), whether or not the transactions
contemplated hereby shall be consummated.
VI.3.2 Brokers. Without limiting the generality of
Section 6.3.1 above, regardless of whether the Closing shall occur,
(i) Seller shall indemnify the Purchaser and its Affiliates against
and hold the Purchaser and its Affiliates harmless from any and all
liability for any brokers' or finders' fees arising with respect to
brokers for finders retained or engaged by, or having any claim by
virtue of the actions of, Seller or any of its Affiliates in respect
of the transactions contemplated by this Agreement and (ii) the
Purchaser shall indemnify Seller and its Affiliates against and hold
Seller and its Affiliates harmless from any and all liability for any
brokers' or finders' fees arising with respect to brokers or finders
retained or engaged by, or having any claim by virtue of the actions
of, the Purchaser or any of its Affiliates in respect of the
transactions contemplated by this Agreement.
ARTICLE VII
SURVIVAL, INDEMNIFICATION AND RELATED MATTERS
VII.1 Survival.
VII.1.1 Terminated Provisions and Post Closing Agreements.
The representations, warranties, covenants and agreements set forth in
Article IV of this Agreement shall not survive the Closing
(collectively, the "Terminated Provisions"); provided, that (a) the
representations and warranties in Sections 4.1.1 [corporate status],
4.1.2 [authorization], 4.1.3 [no conflicts], 4.1.10 [brokers], 4.1.8
[assets], and 4.2.1 [corporate status], 4.2.2 [authorization], 4.2.3
[no conflicts] and 4.2.6 [brokers] shall survive until the expiration
of the applicable statute of limitations, (b) the representations and
warranties in Sections 4.1.5 [litigation], 4.1.6 [proprietary
rights], and 4.1.9 [contracts] shall survive for a period of twelve
(12)) months after the Closing and (c) the representations and
warranties in Sections 4.14 [financial statement], 4.1.7 [governmental
approvals] and 4.1.11 [absence of certain changes] shall survive for a
period of three (3) months after Closing. With respect to any breach
of or inaccuracy of any representation or warranty set forth in
Sections 4.1.1, 4.1.2, 4.1.3, 4.1.10, 4.2.1, 4.2.2, 4.2.3, 4.2.6,
4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8 4.1.9 and 4.1.11 if a Person
entitled to indemnification files an Indemnification Claim Notice (as
defined below) during the applicable survival period specified above
in this Section 7.1.1, then such representation and warranty shall
survive beyond the applicable survival period, to the extent of such
claim only, until such claim is resolved (whether or not the amount of
the damages or expenses resulting from such breach has been finally
determined at the time the notice is given) if, but only if, (i) in
the case of a claim made by a Person by reason of a third party claim,
the written notice is accompanied by a copy of the written notice of
the third party claimant, if any, and (ii) in the case of any claim
made by a Person other than by reason of a third party claim, either
(x) some damages or expenses shall have been incurred in good faith at
or prior to the date of such notice or (y) a reserve would be required
to be provided on a balance sheet prepared in accordance with GAAP.
All other covenants and agreements set forth in this Agreement
including, without limitation, the covenants and agreements contained
in Articles 5 and 6 , shall survive the Closing (such provisions,
collectively the "Post-Closing Agreements").
VII.1.2 No Recourse. The Parties acknowledge and agree that,
except as specifically provided in Sections 7.1.1 and 7.2, after the
Closing, no claim or action of any kind whatsoever shall be brought by
any Party or any such Party's Affiliates against, and no recourse
shall be brought or granted against, any other Party or such other
Party's Affiliates by virtue of or based upon any representation,
warranty, covenant or agreement set forth in this Agreement
(including, without limitation, any alleged misstatement or omission
respecting any inaccuracy therein or breach thereof).
VII.2 Indemnification.
VII.2.1 By the Seller. After the Closing occurs, and subject
to the terms and provisions of this Agreement, the Seller will
indemnify the Purchaser and hold it harmless against any Loss which
the Purchaser may suffer, sustain or become subject to as a result of:
(a) any failure of the Seller to perform any Post-Closing
Agreement, except as provided in the other Transactional
Documents, applicable to the Seller (subject to any limitations
set forth in this Agreement with respect thereto); and
(b) any breach of or inaccuracy of any representation or
warranty set forth in Sections 4.1.1, 4.1.2, 4.1.3, 4.1.4,
4.1.5, 4.1.6, 4.1.7, 4.1.9, and 4.1.11 (provided that the
Seller is given an Indemnification Claim Notice (as defined
below) during the applicable survival period specified in
Section 7.1.1 above); and
(c) any breach of or inaccuracy of any representation or
warranty set forth in Sections 4.1.8 and 4.1.10 (provided that
the Seller is given an Indemnification Claim Notice (as defined
below) during the applicable survival period specified in
Section 7.1.1 above); and
(d) the ownership, use or operation of the Analyst
Business or the Purchased Assets prior to Closing, excluding the
Assumed Liabilities.
VII.2.2 By the Purchaser. After the Closing occurs, and
subject to the terms and provisions of this Agreement, the Purchaser
will indemnify the Seller and hold it harmless against any Loss which
the Seller may suffer, sustain or become subject to as a result of:
(a) any failure of the Purchaser to perform any Post-
Closing Agreement applicable to the Purchaser (subject to any
limitations set forth in this Agreement with respect thereto);
(b) any breach of or inaccuracy of any representation or
warranty set forth in Sections 4.2.1, 4.2.2, 4.2.3 and 4.2.6
(provided that the Purchaser is given an Indemnification Claim
Notice (as defined below) during the applicable survival period
specified in Section 7.1.1 above);
(c) the ownership, use or operation of the Analyst
Business or the Purchased Assets after the Closing Date.
VII.3 Limitations on Indemnification.
(a) The Purchaser shall not assert any claim for
indemnity pursuant to Section 7.2.1(b) of this Agreement with
respect to any matter for which indemnification is available
under Section 7.2.1(b) unless, and only to the extent that, the
aggregate amount of the Loss for which indemnification is
available hereunder exceeds Two Hundred and Fifty Thousand and
00/100 Dollars ($250,000.00) (the "Basket Amount"); provided,
that thereafter the Seller shall indemnify the Purchaser only
for any amounts that are in excess of the Basket Amount.
(b) Notwithstanding anything in this Agreement to the
contrary, the maximum obligation of the Seller under Sections
7.2.1(a) and (b) shall not exceed twenty-five percent (25%) of
the Purchase Price (as adjusted) in the aggregate.
VII.4 Indemnification Procedures.
VII.4.1 Notice of Claim. Any Person making a claim for
indemnification pursuant to Section 7.2 above, the Transition Services
Agreement, and the Contract Manufacturing Agreement (an "Indemnified
Party") must give the Party from whom indemnification is sought (an
"Indemnifying Party") written notice of such claim (an
"Indemnification Claim Notice") promptly after the Indemnified Party
receives any written notice of any action, lawsuit, proceeding,
investigation or other claim (a "Proceeding") against or involving the
Indemnified Party by a Government Authority or other third party or
otherwise discovers the facts giving rise to such claim for
indemnification. The failure to give such notice shall not relieve
the Indemnifying Party of any of its obligations under this Section 7
unless, and to the extent that, such party is prejudiced by the
failure to deliver prompt notice. Such notice must contain a
description of the claim and the nature and amount of such Loss (to
the extent that the nature and amount of such Loss is known at such
time).
VII.4.2 Control of Defense: Conditions. The obligations of an
Indemnifying Party under this Section 7 with respect to Losses arising
from claims of any third party that are subject to the indemnification
provided in Section 7.2 above, the Transition Services Agreement or
the Contract Manufacturing Agreement shall be governed by and
contingent upon the following additional terms and conditions:
(a) At its option, an Indemnifying Party may appoint as
lead counsel of such defense any legal counsel selected by the
Indemnifying Party (even if the provisions of Section 7.3 would
or could limit such Indemnifying Party's obligation), which
legal counsel shall be acceptable to the Indemnified Party (such
acceptance not to be unreasonably withheld or delayed).
(b) Notwithstanding Section 7.4.2(a) above, the
Indemnified Party will be entitled to participate in the
defense of such claim and to employ counsel of its choice for
such purpose; provided, that such employment shall be at the
Indemnified Party's own expense unless (1) the employment
thereof has been specifically authorized by the Indemnifying
Party in writing or (2) the Indemnifying Party has failed to
assume the defense and employ counsel, in which case the fees
and expenses of the Indemnified Party's counsel shall be paid by
the Indemnifying Party.
(c) The Indemnified Party will not consent to the entry
of any judgment or enter into any settlement with respect to any
third party claim without the prior written consent of the
Indemnifying Party (not to be unreasonably withheld). The
Indemnifying Party will not consent to the entry of any judgment
or enter into any settlement with respect to any third party
claim without the prior written consent of the Indemnified Party
(not to be unreasonably withheld); provided, however, that no
such consent of the Indemnified Party shall be required if such
judgment or settlement contains no finding or admission of fault
or guilt on the part of the Indemnified Party and such judgment
or settlement contains an unconditional release of the
Indemnified Party with respect to the particular matter.
VII.5 Exclusive Remedy; Waiver and Release. The indemnification
provided under this Section 7.2 for money damages and the equitable remedies
described in Section VI shall be the Purchaser's and the Seller's sole and
exclusive remedies, each against the other, with respect to matters arising
under this Agreement of any kind or nature, or relating to the ownership,
operation, management, use or control of the Analyst Business and the
Purchased Assets. Any mutually agreed upon amounts owed pursuant to this
Article VII shall be off set against the promissory note.
VII.6 Acknowledgment by the Purchaser.
(a) The Purchaser has conducted, to its satisfaction, an
independent investigation and verification of the financial condition,
results of operations, assets, liabilities, properties and projected
operations of the Analyst Business. Seller acknowledges and
understands that BDO Seidman, LLP has reviewed but will not audit the
financial statements set forth in Schedule 4.1.4 until after the
Closing Date. In making its determination to proceed with the
transactions contemplated by this Agreement, the Purchaser has relied
on the results of its own independent investigation and verification
and the representations and warranties of the Seller expressly and
specifically set forth in this Agreement, including the Schedules
attached hereto.
(b) WITHOUT LIMITING THE GENERALITY OF SECTION 7.1 OF THIS
AGREEMENT, THE PURCHASER ACKNOWLEDGES AND AGREES THAT IT IS NOT
RELYING UPON ANY REPRESENTATION OR WARRANTY OF THE SELLER (OTHER THAN
AS SET FORTH IN SECTION 4.1) OR ANY REPRESENTATION OR WARRANTY OF THE
SELLER'S AFFILIATES, AGENTS OR ADVISORS (INCLUDING, WITHOUT
LIMITATION, ANY INFORMATION, PROJECTION OR PROMISE CONTAINED IN ANY
INFORMATIONAL MEMORANDUM OR OTHER MATERIAL DELIVERED BY OR ON BEHALF
OF THE SELLER). EXCEPT AS SET FORTH IN SECTIONS 7.1, 7.2 AND 7.3, THE
SELLER IS SELLING, AND THE PURCHASER IS ACQUIRING, THE PURCHASED
ASSETS ON AN "AS IS, WHERE IS" BASIS.
(c) THE PURCHASER ACKNOWLEDGES THAT THE PURCHASED ASSETS ARE
INSUFFICIENT TO OPERATE THE ANALYST BUSINESS IN ACCORDANCE WITH PAST
PRACTICE. THE PURCHASER FURTHER ACKNOWLEDGES THAT THE SELLER IS
RETAINING ASSETS THAT WERE USED IN THE OPERATION OF THE ANALYST
BUSINESS, INCLUDING WITHOUT LIMITATION, FACILITIES, PERSONNEL AND
SERVICES.
VII.7 Arbitration.
(a) The Parties shall attempt in good faith to promptly resolve
any dispute arising out of or relating to this Agreement by
negotiation between executives who have the authority to settle the
controversy and who are at a higher level of management than the
Persons with direct responsibility for administration of this
Agreement.
(b) If the dispute has not been resolved by negotiation, then
upon the written request of either Party, such dispute shall be
resolved by binding arbitration conducted in accordance with the Rules
of the Center for Public Resources ("CPR") Institute for Dispute
Resolution by a sole arbitrator. To the extent not governed by such
rules, such arbitrator shall be directed by the Parties to set a
schedule for determination of such dispute that is reasonable under
the circumstances. The arbitration will be conducted in Chicago,
Illinois or Boston, Massachusetts. The arbitration will be governed
by the United States Arbitration Act, 9 U.S.C. [SECTION][SECTION]1-16
and the Patent Arbitration Act, 35 U.S.C. [SECTION]294. Judgment upon
the award rendered by the arbitrator may be entered by any court having
jurisdiction.
(c) In the event the Parties have not resolved a dispute
pursuant to Sections 7.7(a) above, the Parties hereby acknowledge and
agree that such discussions shall be deemed in the nature of
settlement discussions and that neither the fact that the discussions
took place nor any statement or conduct of any participant in such
discussions shall be admissible into evidence in any subsequent
arbitration or other dispute resolution proceeding involving the
Parties, and any disclosure in any form, including oral, by any person
participating in such discussions shall not operate as a waiver of any
privilege, including attorney work product or attorney client
privilege.
ARTICLE VIII
MISCELLANEOUS
VIII.1 Severability. If any covenant, agreement, provision or term
of this Agreement is held to be invalid for any reason whatsoever, then such
covenant, agreement, provision or term will be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and
will in no way affect the validity or enforceability of any other provision
of this Agreement.
VIII.2 Notices. All notices, requests, demands, waivers and other
communication required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been duly given and received if
(i) delivered personally, (ii) sent by registered or certified mail, return
receipt requested, postage prepaid, or (iii) sent by next-day or overnight
mail or delivery (effective the next business day following dispatch) or
(iv) sent by facsimile telecopier ("fax"), followed within 24 hours by a
confirmation copy sent pursuant to one of the foregoing methods (effective
upon receipt of the fax transmission in complete, readable form); in each
case addressed as follows (or to such other address as the recipient may
have provided in writing to the other party pursuant to this section). .
If to the Seller:
- -----------------
Dade Behring Inc.
1717 Deerfield Road
Deerfield, Illinois 60015-0778
Attn: General Counsel
Fax No. (847) 267-5376
Confirm No. (847) 267-5300
and
- ---
Dade Behring Inc.
1717 Deerfield Road
Deerfield, Illinois 60015-0778
Attn: Chief Financial Officer
Fax No. (847) 267-5376
Confirm No. (847) 267-5300
with a copy, which will not constitute notice to the Seller, to:
- ----------------------------------------------------------------
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
Attn: John P. Connaughton
Fax No. (617) 572-3274
Confirm No. (617) 572-3000
If to the Purchaser:
- --------------------
Carl Franzblau
President and Chief Executive Officer
Hemagen Diagnostics, Inc.
34-40 Bear Hill Road
Waltham, Massachusetts 02154
Fax No. (781 )890 -3748
Telephone No. (781) 890-3766
and:
- ----
William Franzblau, Esq.
Vice-President and Chief Financial Officer
34-40 Bear Hill Road
Waltham, Massachusetts 02154
Fax No. (781 )890 -3748
Telephone No. (781) 890-3766
VIII.3 Headings. The headings used in this Agreement are for the
purpose of reference only and will not affect the meaning or interpretation
of any provision of this Agreement.
VIII.4 Entire Agreement. This Agreement (including the exhibits,
Schedules, and other attachments hereto), the Confidentiality Agreement and
other agreements and documents contemplated hereby (when executed and
delivered) constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, between the Parties
with respect to the subject matter hereof.
VIII.5 Counterparts. The Parties may execute this Agreement in
separate counterparts (no one of which need contain the signatures of all
Parties), each of which will be an original and all of which together will
constitute one and the same instrument. In pleading or proving this
Agreement, it will not be necessary to produce or account for more than one
fully executed (in counterparts or otherwise) copy of this Agreement.
VIII.6 Disclosure. Any information set forth in any Schedule
attached to this Agreement or incorporated in any Section of this Agreement
shall be considered to have been set forth in each other Schedule to this
Agreement.
VIII.7 Governing Law, etc.
This Agreement will be governed by and construed in accordance
with the domestic laws of the State of Delaware, without giving effect
to any choice of law or conflict provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the laws
of any jurisdiction other than the State of Delaware to be applied.
In furtherance of the foregoing, the internal law of the State of
Delaware will control the interpretation and construction of this
Agreement, even if under such jurisdiction's choice of law or conflict
of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.
The Purchaser and the Seller hereby irrevocably submit to the
non-exclusive jurisdiction of the courts of the Commonwealth of
Massachusetts and the State of Illinois and the Federal courts of the
United States of America, in each case located in Boston,
Massachusetts, Chicago, Illinois, respectively; and hereby waive,
and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof or of any such
document, that is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or
that the venue thereof may not be appropriate or that this Agreement
or any of such document may not be enforced in or by said courts. The
Purchaser and the Seller hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject
matter of any such dispute and agree that mailing of process or other
papers in connection with any such action or proceeding in the manner
provided in Section 8.2 or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
VIII.8 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns.
VIII.9 Assignment. This Agreement shall not be assignable or
otherwise transferable by any Party hereto without the prior written consent
of the other Party hereto and any attempt to do so will be void; provided,
that the Purchaser may assign its rights hereunder to its senior lender,
BankBoston, N.A, or any other bank or financial institution providing
financing for the transactions contemplated hereby.
VIII.10 No Third Party Beneficiaries. Nothing in this Agreement
(including without limitation the Purchaser's assumption of the Assumed
Liabilities hereunder) shall confer any rights upon any person or entity
other than the Parties and their respective successors and permitted
assigns.
VIII.11 Press Releases and Public Announcements. No Party shall
issue any press release or make any public announcement relating to the
subject matter of this Agreement prior to the Closing without the prior
written approval of the other Party.
VIII.12 Amendment, Waivers, etc. Other than as provided in Section
5.2.4, no amendment, modification or discharge of this Agreement, and no
waiver hereunder, shall be valid or binding unless set forth in writing and
duly executed by the Party against whom enforcement of the amendment,
modification, discharge or waiver is sought. Any such waiver shall
constitute a waiver only with respect to the specific matter described in
such writing and shall in no way impair the rights of the Party granting
such waiver in any other respect or at any other time. Neither the waiver
by any of the Parties of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the Parties, on one
or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of
any other breach or default of a similar nature, or as a waiver of any of
such provisions, rights or privileges hereunder.
VIII.13 Captions. The captions used in this Agreement are for
convenience of reference only and do not constitute a party of this
Agreement and will not be deemed to limit, characterize or in any way affect
any provision of this Agreement, and all provisions of this Agreement will
be enforced and construed as if no caption had been used in this Agreement.
VIII.14 No Strict Construction; Interpretation. The language used in
this Agreement will be deemed to be the language chosen by the Parties to
express their mutual intent and no rule of strict construction will be
applied against any Person.
VIII.15 Bulk Sales Act. The Purchaser hereby waives compliance by
the Seller with the requirements of any and all laws relating to bulk sales
and transfers.
VIII.16 Continued Employees. Purchaser recognizes that the employees
of Seller are experienced individuals in a specialized industry, and are
important to the successful operation of the Business. Hemagen will
consider continued employment to any of the employees (which Seller does not
wish to continue to employ) of Seller involved with the Business as of the
Closing. Hemagen may offer such employment on terms and conditions,
including compensation, seniority and all other benefits, substantially
similar to those provided the employees by Seller.
ARTICLE IX
DEFINITIONS
IX.1 Definition of Certain Terms. The terms defined in this Section
9.1, whenever used in this Agreement (including in the Schedules), shall
have the respective meanings indicated below for all purposes of this
Agreement:
"Affiliate" of a Person means a Person that directly or
indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, the first Person. "Control"
(including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct
or cause the direction of the management policies of a person, whether
through the ownership of voting securities, by contract or credit
arrangement, as trustee or executor, or otherwise.
"Agreement" means this Asset Purchase Agreement, including the
Schedules hereto.
"Applicable Law" means all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including the common law),
rules, regulations, ordinances, codes or orders of any Governmental
Authority and (ii) Governmental Approvals.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consent" means any consent, approval, authorization, waiver,
permit, grant, franchise, concession, agreement, license, exemption or
order of registration, certificate, declaration or filing with, or
report or notice to, any Person, including but not limited to any
Governmental Authority, in each case only if the failure to obtain,
file, report or give notice would have a Material Adverse Effect.
"Analyst Business" means the business conducted by the Seller as
of the date of this Agreement involving the development, manufacture
and sale of the bench top chemistry analyzer known as the Analyst(R)
instrument, together with the rotors, other disposables and reagents,
for use in in vitro diagnostics.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"GAAP" means United States Generally Accepted Accounting
Principles, consistently applied.
"Governmental Approval" means any Consent of any Governmental
Authority.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended and rules and regulations promulgated thereunder.
"IRS" means the Internal Revenue Service.
"Known" or "Knowledge" means the actual personal knowledge after
reasonable investigation , without imputation of any other person, of
any Senior Manager employed by a Party for whom a significant portion
of his or her duties relates to matters as to which the applicable
representation or warranty is made hereunder.
"Lien" means any mortgage, pledge or security interest.
"Loss" means any loss, liability, deficiency, damage or expense,
but excluding any consequential damages.
"Material Adverse Effect" means a material adverse effect on the
financial condition or operating results of the Analyst Business
(taken as a whole).
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a
trust, a joint venture, an unincorporated organization and a
Governmental Authority.
"Proprietary Rights" means any and all (i) patents, patent
applications, registered trademarks, service marks, trade names, (ii)
trademarks, service marks or tradenames for which applications to
register have been made, (iii) corporate names, and (iv) registered
copyrights and copyrights for which applications to register have been
made.
"Proprietary Rights Agreement" means the Proprietary Rights
Agreement, substantially in the form attached hereto as Exhibit C.
"Reasonable Efforts" means reasonable efforts which are
commercially reasonable under the circumstances, excluding the payment
of any money or other consideration to any third party or the
commencement of any litigation or arbitration.
"Tax" or "Taxes" means any federal, state, local or foreign
income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall, profits,
environmental, customs, capital stock, franchise, employees' income
withholding, foreign or domestic withholding, social security,
unemployment, disability, real property, personal property, sales,
use, transfer, value added, alternative or add-on minimum or other
similar tax, governmental fee, governmental assessment or governmental
charge of any kind whatsoever, including any interest, penalties or
additions to Tax or additional amounts with respect to the foregoing.
"Tax Return" means any return, report, declaration, form, claim
for refund or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"Transactional Documents" shall mean this Agreement, the
Proprietary Rights Agreement, Contract Manufacturing Agreement and the
Transition Services Agreement.
"Transition Services Agreement" means the Transition Services
Agreement, substantially in the form attached hereto as Exhibit C.
IX.2 Cross-References to Other Defined Terms.
"Assumed Liabilities" shall have the meaning set forth in
Section 1.3.
"Basket Amount" shall have the meaning set forth in Section 7.3.
"Closing" shall have the meaning set forth in Section 3.1.
"CPR" shall have the meaning set forth in Section 7.7(b).
"Excluded Assets" shall have the meaning set forth in Section
1.2.
"Excluded Liabilities" shall have the meaning set forth in
Section 1.4.
"Financial Statement" shall have the meaning set forth in
Section 4.1.4.
"Indemnification Claim Notice" shall have the meaning set forth
in Section 7.4.1.
"Indemnified Party" shall have the meaning set forth in Section
7.4.1.
"Indemnifying Party" shall have the meaning set forth in Section
7.4.1.
"Inventory" shall have the meaning set forth in Section 1.1.3.
"Post-Closing Agreements" shall have the meaning set forth in
Section 7.1.1.
"Post-Closing Tax Period" shall have the meaning set forth in
Section 5.2.
"Pre-Closing Tax Period" shall have the meaning set forth in
Section 5.2.
"Proceeding" shall have the meaning set forth in Section 7.4.1.
"Purchased Assets" shall have the meaning set forth in Section
1.1.
"Purchase Price" shall have the meaning set forth in Section
2.1.
"Receivables" shall have the meaning set forth in Section 1.1.4.
"Transaction Expenses" shall have the meaning set forth in
Section 6.3.1.
"Terminated Provisions" shall have the meaning set forth in
Section
IX.3 Other Definitional Provisions.
(a) Accounting Terms. Accounting terms (if any) which are not
otherwise defined in this Agreement have the meanings given to them
under GAAP (with such exceptions as noted on Schedule 4.1.4). To the
extent that the definition of such accounting term that is defined in
this Agreement is inconsistent with the meaning of such term under
GAAP, the definition set forth in this Agreement will control.
(b) "Hereof," etc. The terms "hereof," "herein" and
"hereunder" and terms of similar import are references to this
Agreement as a whole and not to any particular provision of this
Agreement. The term "including" as used in this Agreement is used to
list items by way of example and shall not be deemed to constitute a
limitation of any term or provision contained herein. As used in this
Agreement, the singular or plural number shall be deemed to include
the other whenever the context so requires. Section, clause and
Schedule references contained in this Agreement are references to
Sections, clauses and Schedules in or to this Agreement, unless
otherwise specified.
(c) Successor Laws. Any reference to any particular Code
Section or any other law or regulation will be interpreted to include
any revision of or successor to that Section regardless of how it is
numbered or classified.
* * * * *
IN WITNESS WHEREOF, the Parties have duly executed this Asset Purchase
Agreement as of the date first above written.
DADE BEHRING INC.
By: /s/ Mark Wosley-Paige
Name: Mark Wosley-Paige
Its: Corporate Vice President
HEMAGEN DIAGNOSTICS, INC.
By: /s/ Carl Franzblau
Name: Carl Franzblau
Its: President
Exhibit 2.02
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO the ASSET PURCHASE AGREEMENT dated August 14, 1998
is made effective this 31st day of August 1998 by and between by and between
Hemagen Diagnostics, Inc., a Delaware corporation (the "Purchaser"), and
Dade Behring Inc., a Delaware corporation (the "Seller"). The Purchaser and
the Seller are sometimes referred to herein as the "Parties."
WHEREAS, the Parties entered into that Asset Purchase Agreement dated
August 14, 1998 (the "Agreement"); and
WHEREAS, the Parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements made
herein, and of the mutual benefit derived hereby, the Parties, intending to
be legally bound, agree:
1. Paragraph IV.1.4 of the Agreement shall be deleted and the following
shall be added.
IV.1.4 Financial Statement. Schedule 4.1.4 attached hereto
consists of copies of the audited, compiled statement of net assets to
be sold of the Analyst Business as of December 31, 1996, December 31,
1997, and March 31, 1998, respectively, and the related audited,
compiled statements of operation, respectively, of the Analyst
Business, for the calendar years 1996 and 1997, and the three months
ended March 31, 1998, respectively certified by Price
WaterhouseCoopers LLP, independent public accountants. In addition
Schedule 4.1.4 consists of an unaudited, compiled P & L statement of
the Analyst Business as of June 30, 1998. The net assets to be sold of
the Analyst Business and the statements of operation have been
prepared in accordance with GAAP, consistently applied; each of such
statements of net assets to be sold fairly presents the financial
condition of the Analyst Business as of its respective date; and each
of such statements of operation, respectively, fairly presents the
results of operations, as the case may be, of the Analyst Business for
the period covered thereby.
IN WITNESS WHEREOF, the Parties have duly executed this Amendment as
of the date first above written.
DADE BEHRING INC.
By: /s/ Robert W. Brightfelt
Name: Robert W. Brightfelt
Its: Group President, Chemistry
HEMAGEN DIAGNOSTICS, INC.
By: /s/ William Franzblau
Name: William Franzblau
Its: Chief Financial Officer
EXHIBIT 20.1
HEMAGEN COMPLETES ACQUISITION OF ANALYST(R)
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WALTHAM, MA -- Hemagen Diagnostics, Inc. (NASDAQ: HMGN, HMGNW; BSE: HGN)
is pleased to announce that on September 1, 1998, it completed the acquisition
of the Analyst(R) automated chemistry system from Dade Behring, Inc. The
Analyst(R) system consists of a bench-top instrument ideal for physician's
offices, small clinical laboratories, and veterinary offices. The system uses
a rotor-based technology that is currently capable of producing results of up
to 14 different clinical chemistry tests in under 10 minutes time. Dr.
Franzblau, president of the company, stated, "The low cost of the instrument
and the rotors to the end users along with the outstanding reliability of the
system will give Hemagen a distinct advantage over competitive instruments."
Dr. Franzblau did not disclose the specific terms of the transaction,
however he did note that it was financed with debt that was provided by
BankBoston, N.A. Based on historical sales information, Dr. Franzblau said,
"With the addition of the Analyst(R) business, Hemagen's sales should
increase by an annualized rate of approximately $6-7 million. With
historical gross margins of almost 50%, this product line is expected to
positively supplement Hemagen's profitability, which has been consistent for
the preceding two years.
"The Analyst(R) business is a perfect fit into Hemagen's plans to
increase sales and profitability. The company's San Diego operation,
RAICHEM(R) presently manufactures certain reagents for the Analyst(R) system.
We expect that many, if not all, can be manufactured by RAICHEM, thereby
reducing costs and increasing profits. RAICHEM presently markets its products
in conjunction with instrument systems from other companies. The acquisition
of the Analyst(R) system represents the first complete system that will be
marketed under the Hemagen(R) trade name. "
"The technology upon which the Analyst(R) system is based was introduced
into the United States over ten years ago. However, it was well ahead of its
time. By comparison, one company located in California which has a similar
rotor-based technology has placed almost 500 instruments during the first two
calendar quarters of 1998. These placements were primarily in the veterinary
market."
The company plans to engage in an active development program to increase
the product offerings available for the Analyst(R) system in both the human
and veterinary markets. A rotor specific for the veterinary market could be
available before the end of the calendar year.
Hemagen Diagnostics, Inc. develops, manufactures and markets more than
110 FDA-cleared proprietary medical diagnostic test kits used to aid in the
diagnosis of autoimmune and infectious diseases and to measure important
constituents in human blood. The company focuses on markets which offer
significant growth opportunities.
Except for any historical information contained herein, the matters
discussed in this press release contain forward-looking statements that involve
risks and uncertainties which are described in the company's Securities and
Exchange Commission reports and filings.
