THIS AGREEMENT is made as of September 11, 2007. BETWEEN:
Exhibit
10.1
THIS
AGREEMENT is made as of September 11, 2007.
BETWEEN:
NOMOS
Corporation,
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
(the
“Vendor”);
AND
North
American Scientific, Inc.,
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
(the
“Parent Company”);
AND
Best
Medical International, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the
“Purchaser”).
WHEREAS:
A. The
Vendor owns and operates the Business (as defined in Section 1.1), and owns
or
holds under lease (as set out herein) the assets used in connection with the
Business;
B. The
Vendor owns and wishes to sell, and the Purchaser wishes to purchase, the Assets
(as defined in Section 1.1) and the Business as a going concern on the terms
and
conditions set forth in this Agreement;
C. The
Vendor desires to assign to the Purchaser, and the Purchaser desires to assume,
the Assumed Liabilities (as defined in Section 1.1); and
D. The
Parent Company is the registered and beneficial owner of all the issued and
outstanding shares of the Vendor and as such will benefit from the transactions
contemplated by this Agreement, and wishes to indemnify the Purchaser against
certain losses in connection with the sale of the Assets and the
Business;
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
of
the covenants, agreements, representations and warranties set out below, the
parties covenant and agree as follows:
1. Interpretation
1.1. Definitions
In
this
Agreement, unless there is something in the subject matter or context
inconsistent therewith or unless otherwise specifically provided:
(a) “Accounts
Receivable” means all accounts receivable, trade accounts, notes receivable and
other debts owing to the Vendor in connection with or arising out of the
Business, and the full benefit of all security for such accounts, notes and
debts excluding any credit balances contained within the accounts receivable
in
the Vendor’s Financial Statements, but only to the extent that any such credit
balance is not offset by amounts due from the customer which is due such credit
balance from the Vendor;
(b) “Affiliate”
means, with respect to any Person, any other Person controlling, controlled
by
or under common control with, such Person, with “control” for such purpose
meaning the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities or voting interests, by contract or
otherwise;
(c) “Agreement”
means this Agreement, including its recitals and schedules, as amended and
supplemented;
(d) “Assets”
means all properties and assets of the Vendor of every kind and description
(whether real, personal, mixed, tangible or intangible) relating to the Business
wherever located (but not including the Excluded Assets), including, without
limitation:
(i) subject
to the terms of the Lease, the Vendor's interest in the Leasehold Improvements
and the Leased Premises;
(ii) the
Vendor's right, title and interest in the Contracts;
(iii) the
Accounts Receivable;
(iv) the
Inventory;
(v) the
Prepaid Expenses;
(vi) the
Computer Hardware;
(vii) the
Computer Software;
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(viii) the
Office Equipment;
(ix) the
Vehicles;
(x) the
Manufacturing Equipment;
(xi) the
Personal Property;
(xii) the
Intellectual Property;
(xiii) the
Goodwill;
(xiv) the
Customer Lists;
(xv) the
Vendor's interest in the Permits;
(xvi) the
Books
and Records; and
(xvii) all
outstanding and issued stock of the Vendor’s subsidiaries limited to the
Vendor’s German and Chinese operations as set forth in Schedule W (the
“Stock”);
(e) “Assumed
Liabilities” is defined in Section 2.5.;
(f) “Audited
Financial Statements” means the Parent Company's audited financial statements,
together with the auditor's report, the notes thereto and supporting schedules,
consisting of statements of income and retained earnings for the period ending
on, and balance sheets as at October 31 in each of the years 2005 to 2006
inclusive, a copy of each of which is included in Schedule A;
(g) “Benefit
Plan” means any pension, retirement, deferred compensation, COBRA,
profit-sharing, savings, disability, medical, dental, health, life, death
benefit, stock option, stock purchase, bonus, incentive, termination and
severance pay or other employee benefit plan, trust, arrangement, contract,
agreement, policy or commitment, whether or not any of the foregoing is funded
or insured, and whether written or oral, formal or informal, which is intended
to provide or does in fact provide benefits to any or all Employees or former
Employees, and to which the Vendor is a party or by which the Vendor is bound
or
with respect to which the Vendor has any liability or potential
liability;
(h) “Books
and Records” means all files, ledgers and correspondence, all price and supplier
lists, all manuals, reports, texts, notes, engineering, environmental and
feasibility studies, data, specifications, memoranda, invoices, receipts,
accounts, accounting records and books, financial statements and financial
working papers and all other records and documents of any nature or kind
whatsoever, including, without limitation, those recorded, stored, maintained,
operated, held or otherwise wholly or partly dependent on discs, tapes and
other
means of storage, including, without limitation, any electronic, magnetic,
mechanical, photographic or optical process, whether computerized or not, and
all software, passwords and other information and means of or for access
thereto, belonging to the Vendor or Parent Company and relating to the Business
or any of the Assets, but not including Customer Lists;
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(i) “Breach”
means any Material breach of a representation and warranty of the Vendor
contained in this Agreement.
(j) “Business”
means all business currently carried on by the Vendor, namely the NOMOS
Radiation Oncology Division business currently carried on by the Vendor, but
not
including any other business conducted by the Parent Company or its other
subsidiaries;
(k) “Business
Day” means any day other than a Saturday, Sunday or any statutory holiday in the
USA;
(l) “Charter
Documents” means articles, articles of incorporation, bylaws and any other
constituted document of a corporate entity;
(m) “Closing”
means the completion of the sale and purchase of the Assets and the Business
in
accordance with Article 9;
(n) “Closing
Date” means September 14, 2007, or such other date as may be agreed upon in
writing by the Vendor and the Purchaser or by their respective
counsel;
(o) “Code”
means the Internal Revenue Code of 1986, as amended.
(p) “Computer
Hardware” means all the computer hardware owned by the Vendor and used by the
Vendor in the Business, including, without limitation, the hardware listed
in
Schedule Q;
(q) “Computer
Software” means all the computer software, including, without limitation,
application software, object codes and source codes, used by the Vendor in
the
Business, including, without limitation, the software and codes described in
Schedule R, and, with respect to any of the same not owned by the Vendor,
includes all rights of the Vendor under license agreements and other agreements
or instruments relating thereto, including, without limitation, those license
agreements, other agreements and instruments described in Schedule
R;
(r) “Consent”
means any approval, consent, ratification, waiver or other
authorization;
(s) “Contemplated
Transactions” means all of the transactions contemplated by this
Agreement;
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(t) “Contracts”
means all contracts, agreements, instruments, leases, indentures and
commitments, whether written or oral, relating to the Business or to any of
the
Assets to which the Vendor is a party without limitation including but not
limited to non-competition, non-solicitation and confidentiality
agreements;
(u) “Customer
Lists” means all lists of customers and potential customers of the Vendor
pertaining to the Business, including names, addresses, telephone and fax
numbers, e-mail addresses, details of sales and other relevant information
relating thereto;
(v) “Disclosure
Letter” means that disclosure letter delivered by Vendor to the Purchaser
concurrently with execution and delivery of this Agreement in the form of
Schedule 1.1(v);
(w) “Employee
Agreements” is defined in Section 8.1;
(x) “Employees”
means employees of the Vendor employed in the Business;
(y) “Encumbrance”
means, whether or not registered or registrable or recorded or recordable,
and
regardless of how created or arising:
(i) a
mortgage, assignment of rent, lien, encumbrance, adverse claim, charge,
execution, title defect, security interest, hypothec or pledge, whether fixed
or
floating, against assets or property (whether real, personal, mixed, tangible
or
intangible), hire-purchase agreement, conditional sales contract, title
retention agreement, equipment trust or financing lease, and a subordination
to
any right or claim of others in respect thereof;
(ii) a
claim,
interest or estate against or in assets or property (whether real, personal,
mixed, tangible or intangible), including, without limitation, an easement,
right-of-way, servitude or other similar right in property granted to or
reserved or taken by any Person;
(iii) an
option
or other right to acquire, or to acquire any interest in, any assets or property
(whether real, personal, mixed, tangible or intangible); and
(iv) any
other
encumbrance of whatsoever nature and kind against assets or property (whether
real, personal, mixed, tangible or intangible);
(z) “Environment”
means the air immediately around, and the water in, and the soil under and
adjacent to, any of the lands on which the Leased Premises are
situate;
(aa) “Environmental
Protection Laws” means all statutes, orders, bylaws, standards, permits, laws,
regulations, treaties, conventions, ordinances, codes, policies, guidelines,
directives, decisions, licenses, consents, authorizations, certificates and
lawful requirements (including, without limitation, of any Governmental
Authority) relating to protection of the Environment, health and safety of
the
workplace, health, or transportation of dangerous goods;
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(bb) “Excluded
Assets” means:
(i) all
cash
on hand or in banks or other depositories, including the cash in the Vendor’s
subsidiaries;
(ii) all
credits and benefits, including without limitation any Tax credits or benefits,
insurance benefits, and any indemnification rights, escrows and other assets,
relating to any Retained Liabilities;
(iii) rights
accruing to the Vendor under this Agreement or any agreement relating
thereto;
(iv) the
corporate seals, certificate of incorporation, minute books, stock books, Tax
returns, books of account or other records having to do with the corporate
organization of the Vendor except the Vendor’s Chinese and German
subsidiaries;
(v) all
personnel records and other records that Vendor is required by law to retain
in
its possession;
(vi) all
insurance policies held by or for the Vendor and any benefits or proceeds paid
or payable thereunder;
(vii) the
Excluded Prepaids; and
(viii) the
assets listed in Schedule C;
(cc) “Excluded
Prepaids” is defined in Section 1.1(bbb);
(dd) “Financial
Statements” means the Audited Financial Statements and the Unaudited Financial
Statements;
(ee) “Goodwill”
means the goodwill attributable to the Business and the exclusive right of
the
Purchaser to represent itself as carrying on the Business in continuation of
and
as successor to the Vendor, and the right to use any words indicating that
the
Business is so carried on, including the right to use the name “NOMOS” or any
variation thereof as part of the name of, or in connection with, the Business
to
be carried on by the Purchaser;
(ff) “Governmental
Authority” means any federal, state, municipal, county or regional government or
governmental or regulatory authority, domestic or foreign, and includes any
department, commission, bureau, board, administrative agency or regulatory
body
of any of the foregoing;
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(gg) “Governmental
Authorization” means any Consent, license, registration or permit issued,
granted, given or otherwise made available by or under the authority of any
Governmental Authority or pursuant to any Legal Requirement;
(hh) “Hazardous
Materials” means any contaminants, pollutants, hazardous, corrosive or toxic
substances, flammable materials, explosive materials, radioactive materials,
microwaves, waste, urea formaldehyde, asbestos materials, hydrocarbon
contaminants, noxious substances, compounds known as chlorobiphenyls,
deleterious substances, special wastes, dangerous goods or substances and any
other substances or materials that are identified or described in or defined
by
any Environmental Protection Law as being substances or materials the storage,
manufacture, disposal, treatment, generation, use, transportation or remediation
of which, or release of which into or concentration of which in the Environment,
is prohibited, controlled, regulated or licensed by any Governmental Authority
or under any Environmental Protection Law;
(ii) “Intellectual
Property” means all rights, title, interest and benefit of the Vendor in and to
intellectual property of every nature, whether registered or unregistered,
including, without limitation, all websites and website names, copyrights,
patents, patent rights, trade-marks, certification marks and industrial designs,
applications for any of the foregoing, trade names, brand names, trade secrets,
proprietary manufacturing information and know-how, instruction manuals,
inventions, inventors' notes, research data, unpatented blue prints, drawings
and designs, formulae, calculations, processes, prototypes, technology and
marketing rights, together with all rights under license agreements, sublicense
agreements, strategic alliances, development agreements, technology transfer
agreements and other agreements or instruments relating to any of the foregoing,
that are owned by the Vendor or used in connection with the Business or Assets,
including, without limitation, the trade-marks, copyrights, patents, licenses
and agreements described in Schedule D-1; but not including any intellectual
property owned by the Parent Company, including, without limitation, the
intellectual property described in Schedule D-2;
(jj) “Interim
Balance Sheet” means Vendor’s balance sheet as of the date of the Unaudited
Financial Statements.
(kk) “Inventory”
means the goods, merchandise, stock-in trade and inventories of raw materials,
work in progress and finished goods of or pertaining to the Business;
(ll) “IRS”
means the Internal Revenue Service;
(mm) “Knowledge”
of the Vendor or the Parent Company, or words of similar import, including
without limitation, the Vendor or the Parent Company being aware of a fact
or
circumstance, shall mean and refer to the actual knowledge as of the date of
this Agreement, after reasonable inquiry, of ▇▇▇▇ ▇. ▇▇▇▇, L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇;
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(nn) “Leased
Premises” means the premises which are leased by the Vendor as lessee, as more
particularly set out in Schedule E;
(oo) “Leasehold
Improvements” means all the leasehold improvements of the Vendor in the Leased
Premises;
(pp) “Lease”
means the lease described in Schedule E;
(qq) “Legal
Requirement” means any federal, state, local, municipal, foreign, international,
multinational or other constitution, law ordinance, principle of common law,
code regulation, statute or treaty.
(rr) “Liability”
means with respect to any Person, any liability or obligation of such Person
of
any kind, character or description, whether known or unknown, absolute or
contingent, whether or not accrued, disputed or undisputed, liquidated or
unliquidated, secured or unsecured, joint or several, due or to become due,
vested or unvested, executory, determined, determinable or
otherwise.
(ss) “Manufacturing
Equipment” means all machinery, plant, equipment, parts, fixtures, tools and
accessories of the Vendor pertaining to the Business and used in the manufacture
and packaging of goods for sale by the Vendor in the Business, including,
without limitation, those items listed in Schedule S;
(tt) “Material”
means an event(s), occurrence(s), breach(es) or other violations that amounts
to
or will amount to damages in the aggregate of $100,000.00;
(uu) “Material
Contracts” means agreements, contracts, leases, indentures, commitments,
Material Licenses and instruments described in:
(i) Sections
3.10(a)(i) to (iv) inclusive; and
(ii) Schedule
G;
(vv) “Material
Licenses” means the license agreements between the Vendor or Parent Company and
the licensors relating to ▇▇▇▇, University of Texas, Journyx, Doors, Agile,
SAMM
(Sales Logix) and ▇▇▇ (Macola)
(ww) “Office
Equipment” means all office equipment and furniture used by the Vendor in
connection with the Business including, without limitation, the equipment
described in Schedule H-1, but not including the office equipment described
in Schedule H-2;
(xx) “Permits”
means all permits, licenses, registrations and other rights of the kinds
described in Section 3.3(a) entered into or obtained by the Vendor with respect
to the Business or any of the Assets, including, without limitation, the
permits, licenses, registrations and other rights described in Schedule
F;
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(yy) “Permitted
Encumbrances” means those Encumbrances described in Schedule I;
(zz) “Person”
means an individual, legal personal representative, corporation, body corporate,
firm, partnership, trust, trustee, syndicate, joint venture, unincorporated
organization or Governmental Authority;
(aaa) “Personal
Property” means, to the extent not forming part of the Leasehold Improvements,
Manufacturing Equipment, Vehicles, Office Equipment, Inventory and Computer
Hardware, all equipment, furniture, furnishings, accessories, motors, tools,
utensils, stores, supplies, and parts of every nature and kind and other
tangible personal property owned by the Vendor and used in the Business,
including, without limitation, the items of personal property described in
Schedule J, but excluding any Excluded Assets, and any personal property which
is the subject of a lease agreement;
(bbb) “Prepaid
Expenses” means all prepaid expenses including any and all trade deposits (but
not bank deposits) of the Vendor attributable to the Business or the Assets
including, without limitation, amounts paid for licensing fees, property Taxes,
telephone rentals, utilities and rentals, certain of which are set forth in
Schedule W. Prepaid Expenses shall not include any prepaid insurance (or refunds
relating thereto), the COBRA receivable as reflected on the books of Vendor, or
Prepaid Rent (the “Excluded Prepaids”);
(ccc) “Prepaid
Rent” is defined in Section 2.7;
(ddd) “Proceeding”
is defined in Section 3.9(a);
(eee) “Product
Liability Insurance” is defined in Section 12.11;
(fff) “Purchase
Price” means the purchase price for the Business and the Assets, as set out in
Section 2.2;
(ggg) “Purchaser”
means Best Medical International, Inc.;
(hhh) “Retained
Liabilities” is defined in Section 2.5;
(iii) ”Stock”
is defined in Section 1.1(d)(xvii);
(jjj) “Tax”
or
“Taxes” shall mean all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross receipts,
capital, sales, use, ad valorem, value added, transfer, franchise, profits,
inventory, capital stock, license, withholding, payroll, employment, social
security, unemployment, excise, severance, stamp, occupation, property and
estimated taxes, customs duties, fees, assessments and charges of any kind
whatsoever;
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(kkk) “Unaudited
Financial Statements” means the Vendor's unaudited financial statements,
consisting of statements of income and retained earnings for the 9 month period
ended on, and the balance sheet as at, July 31, 2007 included in Schedule
A;
(lll) “Vehicles”
means all automobiles, trucks, trailers, tractors and other vehicles owned
by
the Vendor and used in the Business, including, without limitation, those
described in Schedule T; and
(mmm) “Vendor’s
Commission Plans” is defined in Section 6.1(a)(vii).
1.2. Currency
Except
where otherwise expressly provided, all monetary amounts in this Agreement
are
stated and shall be paid in US currency.
1.3. Governing
Law
This
Agreement and the agreements contemplated hereby shall be construed in
accordance with and governed by the laws and the courts of the Commonwealth
of
Virginia.
1.4. Schedules
The
following are the Schedules which are attached to and form part of this
Agreement:
Schedule
A-Financial Statements
Schedule
B-Employees
Schedule
C-Excluded Assets
Schedule
D-Intellectual Property
Schedule
E-Leased Premises and Leases
Schedule
F-Permits
Schedule
G-Material Contracts
Schedule
H-Office Equipment
Schedule
I-Permitted Encumbrances
Schedule
J-Personal Property
Schedule
K-Customers and Suppliers
Schedule
L-Bank Facilities
Schedule
M-Litigation
Schedule
N-Existing Employment Contracts
Schedule
O-Benefit Plans
Schedule
P- Assumption Agreement
Schedule
Q-Computer Hardware
Schedule
R-Computer Software
Schedule
S-Manufacturing Equipment
Schedule
T-Vehicles
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Schedule
U-Product Warranties
Schedule
V-Non-Competition Agreement
Schedule
1.1(v) - Disclosure Letter
Schedule
2.5(a)(i) - Warranty Agreements
Schedule
2.5(a)(ii) - Vendor Contracts
Schedule
2.5(a)(vii) - Certain Additional Assumed Liabilities
Schedule
2.5(b)(xiv) - Bonuses
Schedule
LR - Legal Requirements
Schedule
GA - Government Authorization
Schedule
3.2(l) - Non-Assignable Contracts
Schedule
3.3 - Jurisdictions in which Business is carried on
Schedule
3.6 - Insurance
Schedule
6.1(a)(vii) - Vendor’s Commission Plans
Schedule
8.1 - Employee Agreements
Schedule
12.11 - Product Liability Insurance
Schedule
W - Certain Assets: Accounts Receivable as at August 31, 2007, Prepaid Expenses,
and Stock
2. Purchase
of Assets
2.1. Purchase
and Sale
Based
on
the representations and warranties contained in this Agreement, the Vendor
agrees to sell, assign and transfer to the Purchaser and the Purchaser agrees
to
purchase from the Vendor, on the Closing Date, the Assets and the Business,
effective as of and from the Closing, free and clear of all Encumbrances other
than Permitted Encumbrances, for the price and in accordance with and subject
to
the terms and conditions set forth in this Agreement.
2.2. Purchase
Price
The
Purchase Price for the Business and Assets will be $500,000.00.
2.3. Payment
of Purchase Price
The
Purchase Price for the Business and Assets shall be paid by the Purchaser to
the
Vendor at the Closing by wire transfer to an account designated by the
Vendor.
2.4. Risk
of Loss and Damage Prior to Closing
Risk
of
loss of the Assets shall pass to the Purchaser at the Closing, and the Vendor
shall bear all risk of loss or damage to, or destruction of, the Assets until
the Closing and the Purchaser shall bear all such risk of loss, damage and
destruction after the Closing. If, prior to the Closing, any Assets are lost,
damaged or destroyed and such loss, damage or destruction has not been
completely replaced, repaired or otherwise rectified by the Closing, and if
the
Closing takes place, the Purchase Price will be reduced by an amount equal
to
the aggregate of:
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(a) the
insurance proceeds paid to the Vendor or the Parent Company in respect of such
loss, damage or destruction; and
(b) the
aggregate of all deductible amounts under the insurance policies against which
a
payment has been made under Section 2.4(a) above in respect of such loss, damage
or destruction;
less:
(c) the
amount actually expended by or on behalf of the Vendor or the Parent Company
in
the repair, replacement or other rectification thereof.
The
Vendor shall consult with the Purchaser prior to making a claim against any
applicable insurance policy and shall act reasonably and bona fide in respect
thereof and in a manner consistent with the Purchaser's interest in the Business
and the Assets. The Vendor shall at Closing make, or cause to be made, the
necessary claims under all applicable insurance policies and shall assign to
the
Purchaser all remaining insurance proceeds, including business interruption
insurance proceeds, which are or may become receivable by the Vendor or the
Parent Company in respect of any such loss, damage or destruction. Subject
to
the limitations contained in Article 12, the Vendor shall indemnify and save
harmless the Purchaser from and against the amount of any denied insurance
claim
in respect of such loss, damage or destruction where the denial is due to the
negligence or willful misconduct of the Vendor.
2.5. Liabilities
(a) Assumed
Liabilities. On and effective as of the Closing Date, Purchaser shall assume
and
agree to discharge only the following Liabilities of Vendor (the “Assumed
Liabilities”):
(i) any
Liability to Vendor's customers under written warranty agreements and extended
service agreements substantially in the forms disclosed in Schedule 2.5(a)(i)
given by Vendor to its customers in the ordinary course of business prior to
the
Closing Date (other than any Liability arising out of or relating to a Breach
that occurred prior to the Closing Date);
(ii) any
Liability arising after the Closing Date under the Vendor Contracts described
in
Schedule 2.5(a)(ii) (other than any Liability arising out of or relating to
a
Breach that occurred prior to the Closing Date);
(iii) any
Liability arising after the Closing Date under the Lease;
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(iv) any
Liability to Vendor's customers incurred by Vendor in the ordinary course of
business for orders outstanding as of the Closing Date reflected on Vendor's
books (other than any Liability arising out of or relating to a Breach that
occurred prior to the Closing Date);
(v) any
Liability assumed by the Purchaser under Section 8.2 or Section
8.3;
(vi) any
Liability arising after the Closing Date under the Contracts; or
(vii) any
Liability of Vendor described in Schedule 2.5(a)(vii).
(b) Retained
Liabilities. The Retained Liabilities shall remain the sole responsibility
of
and shall be retained, paid, performed and discharged solely by Vendor.
“Retained Liabilities” shall mean every Liability of Vendor other than the
Assumed Liabilities, including:
(i) any
trade
account payable reflected on the Interim Balance Sheet that remains unpaid
as of
the Closing Date including any credit balances contained in the accounts
receivable of the Vendor’s Financial Statements but only to the extent that any
such credit balance is not offset by amounts due from the customer which is
due
such credit balance from the Vendor;
(ii) any
trade
account payable incurred by Vendor in the ordinary course of business between
the date of the Interim Balance Sheet and the Closing Date that remains unpaid
as of the Closing Date;
(iii) any
Liability arising out of or relating to products, software or services of Vendor
to the extent manufactured or sold prior to the Closing Date (a “Product
Liability Matter”), except to the extent the same constitutes an Assumed
Liability under Section 2.5(a)(i) or (ii);
(iv) any
Liability under any Contract assumed by Purchaser pursuant to Section 2.5(a)
that arises after the Closing Date but that arises out of or relates to any
Breach that occurred prior to the Closing Date;
(v) any
Liability of Vendor or Parent Company for Taxes, including (A) any Taxes arising
as a result of Vendor's operation of its business or ownership of the Assets
prior to the Closing Date, (B) any Taxes that will arise as a result of the
sale
of the Assets pursuant to this Agreement and (C) any deferred Taxes of any
nature, in each case relating to any period prior to the Closing
Date;
(vi) any
Liability of Vendor under any Contract not assumed by Purchaser under Section
2.5(a), including any Liability arising out of or relating to Vendor's credit
facilities or any security interest related thereto;
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(vii) any
Environmental, Health and Safety Liabilities arising out of or relating to
the
operation of Vendor's business or Vendor's leasing, ownership or operation
of
real property arising out of or relating to any occurrence or event prior to
the
Closing Date;
(viii) any
Liability of Vendor to the Parent Company;
(ix) any
Liability of Vendor to distribute to the Parent Company or otherwise apply
all
or any part of the consideration received hereunder;
(x) any
Liability of Vendor arising out of any Proceeding pending as of the Closing
Date;
(xi) any
Liability of Vendor arising out of any Proceeding commenced after the Closing
Date and arising out of or relating to any occurrence or event happening prior
to the Closing Date, except to the extent the same constitutes an Assumed
Liability or a Product Liability Matter under this Agreement;
(xii) any
Liability arising out of or resulting from Vendor's compliance or noncompliance
with any Legal Requirement or order of any Governmental Authority arising out
of
or relating to any occurrence or event happening prior to the Closing Date;
or
(xiii) any
Liability of Vendor under this Agreement or any other document executed in
connection with the Contemplated Transactions; or
(xiv) any
Liability of the Vendor under Section 8.1, Section 8.3 (to the extent not
assumed in Section 8.3 by the Purchaser) or Schedule 2.5(b)(xiv).
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14 -
2.6. Allocation
Within
forty (40) days after the Closing, Purchaser shall prepare an allocation
schedule which shall allocate the Purchase Price and the Assumed Liabilities
in
accordance with the applicable provisions of the Code and regulations thereunder
(“Closing Allocation”). After the Closing, the parties shall make consistent use
of the allocations, fair market values and useful lives specified in the Closing
Allocation for all Tax purposes and in all filings, declarations and reports
with the IRS in respect thereof, including the reports required to be filed
under Section 1060 of the Code. Purchaser shall prepare IRS Form 8594 with
respect to the transactions contemplated by this Agreement (the “Form 8594”) and
deliver the Form 8594 to Vendor within forty-five (45) days after the Closing
Date in accordance with the Closing Allocation. The Form 8594 shall be subject
to Vendor's approval before it is filed with the IRS. In any Proceeding related
to the determination of any Tax, neither Purchaser nor Vendor or the Parent
Company shall contend or represent that allocation set forth in the Form 8594
as
so filed is not a correct allocation.
2.7. Prepaid
Rent
Immediately
prior to the Closing, the parties shall calculate the amount of Base Rent and
Additional Rent as such terms are defined in the Lease paid by or on behalf
of
the Vendor relating to the period beginning on the Closing Date and ending
on
the next date that such Base Rent and Additional Rent is due under the Lease
(the “Prepaid Rent”), and at the Closing Purchaser shall pay to Vendor an amount
equal to the amount of the Prepaid Rent.
3. Representations
and Warranties of the Vendor.
Except
as set forth in the Disclosure Letter, the Vendor represents and warrants to
the
Purchaser as follows and acknowledges that the Purchaser is relying on the
following representations and warranties in connection with the purchase of
the
Business and the Assets:
3.1. Corporate
Status and Authority
(a) Status:
The Vendor is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and has the corporate power to own its
property and conduct its business in the manner in which such business is now
being conducted. The Vendor is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership of properties or conduct
of
business requires such qualification and where failure to be so qualified would
have a Material adverse effect on the Business taken as a whole.
(b) Due
Authorization: The execution and delivery of this Agreement and all documents,
instruments and agreements required to be executed and delivered by the Vendor
pursuant to this Agreement, and the completion and performance of the
transactions and obligations contemplated by, or contained in, this Agreement,
have been duly authorized by all necessary corporate action on the part of
the
Vendor, and this Agreement has been duly executed and delivered by the Vendor
and constitutes a legal, valid and binding obligation of the Vendor enforceable
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
of general application affecting the enforceability of remedies and rights
of
creditors and except that equitable remedies such as specific performance and
injunction are in the discretion of a court.
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15 -
3.2. Assets
(a) Ownership:
Except for the Leased Premises, the Vendor is the beneficial owner of, and
has
good and marketable title to, all of the Assets free and clear of all
Encumbrances except Permitted Encumbrances.
(b) Leases
and Leased Premises: The Leased Premises are held by the Vendor under the Lease,
which is valid and subsisting, is set forth in Schedule E, and is in full force
and effect and without amendment thereto, except as described in Schedule E.
The
Lease set forth in Schedule E is complete and accurate in all respects and
there
are no other leases, agreements to lease or tenancy arrangements relating to
real property to which the Vendor is a party and which relate to the Business
except as disclosed to the Purchaser. The Vendor has not previously assigned
the
Lease nor sublet its interest in any of the Leased Premises under the Lease
except as described in Schedule E. The Vendor has not released any of the other
parties to the Lease from the performance of any of their obligations
thereunder. The Vendor is not in Material breach of any of the terms of any
Lease and the Vendor is not aware of any of the other parties to the Lease,
being in Material breach of any of the terms thereof, and to the Knowledge
of
the Vendor, no event or condition has occurred which, either immediately or
after notice or lapse of time or both, could give rise to the cancellation
or
termination of the Lease.
(c) Zoning:
The Leased Premises at which the Vendor carries on any part of the Business
is
zoned to permit the particular activities carried on thereon or therein by
the
Vendor.
(d) Taxes:
All property, municipal, school, general and special Taxes, rates, assessments,
local improvements charges, frontage Taxes, business Taxes, development cost
charges, other subdivision charges and costs and other levies which are
chargeable against the Leased Premises and payable by the Vendor under the
Leases have been paid in full unless the same are not due and
payable.
(e) Lands
and
Buildings: The lists of lands and premises set out in Schedules E accurately
describe all interests of the Vendor (owned, leased, licensed or other) in
real
property used in the conduct of the Business.
(f) State
of
Tangible Personal Property: All tangible personal property included in the
Assets has been properly maintained in all Material respects, is in good working
order (where applicable) and repair, ordinary wear and tear excepted, contains
no defects known to the Vendor which will materially and adversely affect the
operation of the Business to any Material degree and is in the possession of
the
Vendor.
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16 -
(g) Tangible
Personal Property: The list of Personal Property set out in Schedule J
accurately lists all of the tangible Personal Property owned by the Vendor
used
in the conduct of the Business that has a value in excess of $1,000.00 per
item.
(h) Intellectual
Property: With respect to the Intellectual Property:
(i) Schedule
D contains a complete list of all patents, pending patent applications,
trade-marks, trade-▇▇▇▇ applications and copyright registrations in each
jurisdiction in which application or registration has been made by or on behalf
of the Vendor, together with all licenses and agreements relating to the
Intellectual Property;
(ii) the
Vendor has the right to use, sell, license, sub-license and prepare derivative
works for, and to dispose of, and to bring actions for the infringement or
misappropriation of, the Intellectual Property and the Vendor has not conveyed,
assigned or, save for Permitted Encumbrances, encumbered any of the Intellectual
Property rights;
(iii) to
the
Knowledge of the Vendor, all registrations and filings necessary to preserve
the
rights of the Vendor to the Intellectual Property have been made and are in
good
standing;
(iv) the
execution and delivery of this Agreement and the completion and performance
of
the transactions and obligations contemplated by or contained in this Agreement
will not breach, violate or conflict with any instrument or agreement governing
any Intellectual Property right of Vendor, and will not cause the forfeiture
or
termination of any Intellectual Property right of Vendor or in any way exclude
the right of the Vendor to use, sell, license or dispose of or to bring any
action for the infringement of any Intellectual Property right of Vendor (or
any
portion thereof);
(v) the
conduct of the Business by the Vendor does not, to the Knowledge of the Vendor,
infringe upon any intellectual property right, domestic or foreign, of any
Person;
(vi) there
are
no pending or, to the Knowledge of the Vendor, threatened, claims, actions,
demands, lawsuits or other proceedings contesting the validity, ownership or
right to use, sell, license or dispose of any of the Intellectual Property
necessary or required or otherwise used for or in connection with the conduct
of
the operations of the Business, nor to the Knowledge of the Vendor is there
any
reasonable basis for such claim presently in existence, nor has the Vendor
received any notice asserting that any Intellectual Property right of the Vendor
or the proposed use, sale, license or disposition thereof by the Vendor
conflicts or will conflict with the rights of any party, nor to the Knowledge
of
the Vendor is there any reasonable basis for any such assertion presently in
existence;
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17 -
(vii) to
the
Knowledge of the Vendor, no employee of the Vendor is in violation of any term
of any non-disclosure, proprietary rights or similar agreement between the
employee and any former employer;
(viii) the
Vendor has used its reasonable commercial efforts to ensure that all technical
information, other than technical information for which the Vendor considers
patent protection and defensive publication to be suitable, developed by and
belonging to the Vendor with respect to the Business or the Assets, for which
a
copyright has not been registered nor patent protection sought, has been kept
confidential;
(ix) except
for bonuses or sales commissions payable to Employees in the ordinary course
of
business and except for the existing obligations of the Vendor under licensing
or similar agreements which are listed in Schedule D, there are no royalties,
honoraria, fees or other payments payable by the Vendor to any Person by reason
of the ownership, use, license, sale or disposition of any of the Intellectual
Property; and
(x) all
Persons having access to or knowledge of the Intellectual Property that is
of a
confidential nature and that is necessary or required or otherwise used for
or
in connection with the conduct or operation or proposed conduct or operation
of
the Business have entered into appropriate non-disclosure agreements with the
Vendor;
(i) No
Rights
to Assets: There is no agreement, contract, option, commitment or other right
in
favour of, or held by, any Person other than the Purchaser to purchase, lease,
license or otherwise acquire any of the Assets, other than inventory purchase
orders accepted by the Vendor in the ordinary course of the Business and
consistent with past practice, or to possess any of the Assets or to occupy
any
part of the Leased Premises.
(j) All
Assets Used in Business: Except for the Excluded Assets, the Assets constitute
all of the Material rights, assets and properties that are usually and
ordinarily used in connection with the Business, and include all Material
rights, assets and properties the use and exercise of which are necessary for
the performance of any Contract and any Permit to be assumed by the Purchaser
pursuant to this Agreement and for the conduct of the Business as now
conducted.
(k) Inventory:
To the Knowledge of the Vendor, none of the Inventory is obsolete or unsaleable
in the ordinary course of the Business and all of the Inventory is new, unused
and in good condition for sale, except the maintenance Inventory which consists
of used parts, in each case subject to customary reserves maintained by the
Vendor.
(l) Contracts
Assignable: Except as specifically set out in Schedule 3.2(l), all of the
Contracts are freely assignable to the Purchaser.
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18 -
(m) Rights
to
Assets: The Vendor has the exclusive right to possess, use, occupy and dispose
of the Assets, subject only to the rights of the other parties to the Contracts
and the rights of the issuers of the Permits.
3.3. Business
Operations
(a) Permits:
The Vendor holds all permits, licenses, registrations, consents, authorizations,
approvals, privileges, waivers, exemptions, orders, certificates, rulings,
agreements and other concessions from, of or with Governmental Authorities
required to carry on the Business as now being carried on, and to hold, operate
and use the Assets as now being held, operated and used, by the Vendor, and
all
of the foregoing are validly issued, are in full force and effect, are in good
standing, are being complied with in all respects and are listed in Schedule
F;
and no notice of breach or default or defect in respect of any of their terms
has been received by the Vendor and there are no proceedings in progress,
pending or threatened which could result in the cancellation, revocation,
suspension or adverse alteration of any of them, and the Vendor is not aware
of
any existing matters or state of facts which is reasonably likely to give rise
to any such notice or proceeding; except in each case where the failure to
hold
the same or other applicable circumstance referred to in this Section 3.3(a)
would not have a Material adverse effect on the Business, taken as a whole;
and,
except as specifically set out in Schedule F.
(b) Compliance
with Legal Requirements: Except as set forth in Schedule LR:
(i) Vendor
is, and at all times since May 4, 2004 has been, in Material compliance with
each Legal Requirement that is or was applicable to it or to the conduct or
operation of its business or the ownership or use of any of its
assets;
(ii) Since
May
4, 2004, no event has occurred or circumstance exists that (with or without
notice or lapse of time) (A) will constitute or result in a Material violation
by Vendor of, or a failure on the part of Vendor to comply with, any Legal
Requirement or (B) will give rise to any Material obligation on the part of
Vendor to undertake, or to bear all or any portion of the cost of, any Material
remedial action of any nature; and
(iii) Since
May
4, 2004, Vendor has not received, at any time any notice or other communication
(whether oral or written) from any Governmental Authority or any other Person
regarding (A) any actual, alleged, possible or potential violation of, or
failure to comply with, any Legal Requirement or (B) any actual, alleged,
possible or potential obligation on the part of Vendor to undertake, or to
bear
all or any portion of the cost of, any remedial action of any
nature.
(c) Governmental
Authorization: Schedule GA contains a complete and accurate list of each
Governmental Authorization that is held by Vendor or that otherwise relates
to
Vendor's business or the Assets. Each Governmental Authorization listed or
required to be listed in Schedule GA is valid and in full force and effect.
Except as set forth in Schedule GA:
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19 -
(i) Vendor
is, and at all times since May 4, 2004 has been, in compliance with all of
the
terms and requirements of each Governmental Authorization identified or required
to be identified in Schedule GA;
(ii) Since
May
4, 2004, no event has occurred or circumstance exists that will (with or without
notice or lapse of time) (A) constitute or result directly or indirectly in
a
Material violation of or a failure to comply with any term or requirement of
any
Governmental Authorization listed or required to be listed in Schedule GA,
or
(B) result directly or indirectly in the revocation, withdrawal, suspension,
cancellation or termination of, or any modification to, any Governmental
Authorization listed or required to be listed in Schedule GA;
(iii) Vendor
has not received, at any time since May 4, 2004, any notice or other
communication (whether oral or written) from any Governmental Authority or
any
other Person regarding (A) any actual, alleged, possible or potential violation
of or failure to comply with any term or requirement of any Governmental
Authorization or (B) any actual, proposed, possible or potential revocation,
withdrawal, suspension, cancellation, termination of or modification to any
Governmental Authorization; and
(iv) all
applications required to have been filed for the renewal of the Governmental
Authorizations listed or required to be listed in Schedule GA have been duly
filed on a timely basis with the appropriate Governmental Authorization, and
all
other filings required to have been made with respect to such Governmental
Authorizations have been duly made on a timely basis with the appropriate
Governmental Authorization.
To
the
Knowledge of Vendor, the Governmental Authorizations listed in Schedule GA
collectively constitute all of the Governmental Authorizations necessary to
permit Vendor to lawfully conduct and operate its business in the manner in
which it currently conducts and operates such business and to permit Vendor
to
own and use its assets in the manner in which it currently owns and uses such
assets.
(v) Compliance
with Laws: Except as expressly disclosed in this Agreement, the Vendor is
operating and using the Assets, and is conducting the Business, in Material
compliance with all applicable laws, statutes, bylaws, decrees, rulings, orders,
judgments and regulations of each jurisdiction in which the Assets are located
or in which it conducts the Business, and of all Governmental Authorities of
each such jurisdiction, including, without limitation, any land use or zoning
bylaw or regulation, development restriction or plan, building restriction
or
code.
(vi) Jurisdictions
in which Business Is Carried On: The Vendor carries on the Business, and Assets
are situated, in the jurisdictions listed in Schedule 3.3.
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20 -
3.4. Financial
(a) Audited
Financial Statements: The Audited Financial Statements present fairly in all
Material respects the financial position, assets and liabilities (whether
accrued, absolute, contingent or otherwise) of the Parent Company as at the
respective dates of the balance sheets included therein.
(b) Unaudited
Financial Statements: The Unaudited Financial Statements present fairly in
all
Material respects the financial position, assets and liabilities (whether
accrued, absolute, contingent or otherwise) of the Vendor as at July 31, 2007
and the results of its operations for the nine months then ended.
(c) No
Change: Since July 31, 2007:
(i) there
has
been no damage, destruction, loss or other event, from any cause whatsoever,
whether or not covered by insurance, of, to or affecting any of the Assets
or
any adverse change in the condition of any of the Assets or in the organization,
operations, affairs, business, properties, prospects or financial condition
or
position of the Business, including, without limitation, such changes arising
as
a result of any legislative or regulatory change, or revocation of any of the
Permits or of any right of the Vendor to carry on business, which will have
a
Material adverse effect on the Business taken as a whole;
(ii) there
has
been no event, condition or development, or threatened or probable event,
condition or development of which the Vendor is aware, which has materially
and
adversely affected, or will materially and adversely affect, the Assets or
the
Business;.
(iii) the
Business has been carried on in the ordinary course in all Material
respects;
(iv) no
event,
other than the Contemplated Transactions, has occurred which will lead to a
Material reduction in the value of the Goodwill;
(v) to
the
knowledge of the Vendor there has been no termination or cancellation of,
Material adverse change in, or Material adverse alteration of, the Vendor's
relationships with any of its customers, which customers, in the aggregate,
accounted for more than 5% of the Vendor's gross revenues for the financial
year
of the Vendor ending on October 31, 2006 except as shown in the Unaudited
Financial Statements for that financial year; and
(vi) the
Vendor has not, in connection with the Business or the Assets, directly or
indirectly:
|
A.
|
incurred
any Material liability or obligation (absolute or contingent) except
for
liabilities incurred in the ordinary course of business, all of which
as
to their nature and amount are consistent with the Business as carried
on;
|
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21 -
|
B.
|
had
any Material portion of the Assets become subject to an Encumbrance,
other
than a Permitted Encumbrance, whether or not created or permitted
by the
Vendor;
|
|
C.
|
sold,
transferred, assigned, leased or otherwise disposed of any of the
Assets
or cancelled or released any Material debts or claims, except, in
each
case, in the ordinary course of
business;
|
|
D.
|
waived
or cancelled any rights of substantial
value;
|
|
E.
|
entered
into, varied, amended, terminated or cancelled any Material instrument,
commitment, lease, indenture, contract or agreement, or entered into
any
transaction, other than in the ordinary course of
business;
|
|
F.
|
made
or authorized any payment to or for the benefit of any officer or
employee
on account of salary, pay, collateral employment benefits, commissions
or
other compensation, pension, bonus, share of profits or any Benefit
Plan,
except in the ordinary course of
business;
|
|
G.
|
made
any capital expenditure or entered into any lease with a capitalized
value, in either case, of more than $25,000.00;
or
|
|
H.
|
directly
or indirectly, engaged in or entered into any Material transaction
or made
any Material disbursement or assumed or incurred any Material liability
or
obligation or made any commitment to make any Material expenditure
outside
the ordinary course of business;
|
|
I.
|
made
any Material change in its billing practices or in the credit terms
it
makes available to its customers;
|
(d) Books
and
Records: The Books and Records fairly and correctly set out and disclose in
all
Material respects the financial position and condition, and all revenues,
expenses and results of operations, of the Business and all Material financial
transactions of the Vendor relating to any of the Assets or the Business have
been accurately recorded in the Books and Records in all Material respects,
all
of which are under the exclusive ownership and direct control of the Vendor
or
the Parent Company (including all means of access thereto and
therefrom).
(e) Liabilities:
The Vendor has no Material debts or liabilities (whether accrued, contingent,
absolute or otherwise and whether or not determined or determinable) including,
without limitation, liabilities relating to income and other Taxes,
except:
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22 -
(i) liabilities
disclosed on, reflected in or provided for in the Financial
Statements;
(ii) liabilities
disclosed in this Agreement; and
(iii) liabilities
incurred in the ordinary course.
(f) Product
Warranties: To the knowledge of the Vendor, Schedule U contains a complete
list of all warranties given to purchasers of products sold by the Vendor in
connection with the Business since May 4, 2004.
(g) Accounts
Receivable: To the Knowledge of Vendor, all accounts receivable recorded on
the
books of the Vendor are valid, due, collectable and payable and no right of
set-off or counterclaim exists with respect to those accounts receivable, in
each case subject to customary reserves maintained by the Vendor. Since July
31,
2007, the Vendor has not collected its accounts receivable except in the
ordinary course of business in accordance with past practices.
(h) Guarantees/Indemnities:
The Vendor has not guaranteed or indemnified, or agreed to guarantee or
indemnify, or agreed to any other like commitment, in respect of any debt,
liability or other obligation of any Person.
(i) Customers
and Suppliers: Schedule K sets out the major customers of the Business (being
those customers and those suppliers of the Business accounting for more than
5%
of sales and more than 5% of inventory purchases respectively of the Vendor
for
the period August 1, 2006 to July 31 2007). Since July 31, 2007, to the
knowledge of the Vendor, there has been no termination or cancellation of,
and
no Material and adverse modification or change in, the Vendor's business
relationships with any major customer or group of major customers or any major
supplier. The Vendor has no reason to believe that the benefits of any
relationship with any of the major customers or suppliers of the Business will
not continue after the Closing to the benefit of the Purchaser in substantially
the same manner as prior to the date of this Agreement.
3.5. Banking
Bank
Facilities: Schedule L contains a complete and accurate listing of the name
and
address of each bank, trust company or similar financial institution in which
the Vendor has, in connection with the Business, an account, safe deposit box
or
other banking facility, including account numbers and the names of all persons
authorized to transact business in respect of those accounts.
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23 -
3.6. Insurance
(a) Claims:
To the Knowledge of the Vendor, except as set forth in Schedule 3.6, no claims
have been made during the last five years relating to the Assets or the Business
against any of the insurance policies of the Vendor or the Parent Company,
including, without limitation, any such property damage, general liability,
product liability or motor vehicle insurance policy.
(b) Limits:
To the Knowledge of the Vendor the Vendor has not entered into any contracts
in
the last 5 years relating to the business requiring the Vendor to provide
insurance coverage in an amount greater than $5,000,000.
3.7. Tax
Matters
(a) Filings:
The Vendor has duly filed all returns, elections and designations required
to be
filed by it with all Tax authorities on a timely basis. No such returns,
elections or designations contain any Material misstatement or omit any Material
statement that should have been included, and each return, election and
designation, including accompanying schedules and statements, is true, correct
and complete in all Material respects.
(b) Payment:
The Vendor has paid in full all amounts (including, without limitation, excise,
sales, use and consumption Taxes and Taxes measured on income and all
installments of Taxes) owing to all federal, state, and municipal taxation
authorities due and payable by it.
3.8. Employee
Matters
(a) List
of
Employees: The list of Employees set out in Schedule B is a list of the
employees of the Vendor employed in the Business as at September 5, 2007 and,
to
the Knowledge of the Vendor includes the names of such employees and a listing
of the annual salary, target bonus, position, date of hire and working location
of each such Employee, which is accurate and complete, and whether any of them
has signed a written confidentiality agreement. At or prior to the Closing,
Vendor will deliver to Purchaser a schedule which sets forth the Benefit Plan
entitlements and vacation entitlements of such employees.
(b) Employment
Contracts: Schedule N contains a description of all oral or written consulting
contracts, employment agreements, management contracts, labor services contracts
and similar agreements or arrangements for the services of one or more
particular individuals with respect to the Business, to which the Vendor is
a
party, which is accurate in all respects, and, except as set out in Schedule
N,
none of the Employees is employed on other than an indefinite hiring basis
terminable on reasonable notice according to law without further liability
to
the Vendor, and the Vendor has not made any commitment or agreement with respect
to the period of notice, the payment of money or otherwise with respect to
the
termination of employment of any of the Employees.
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24 -
(c) Unions:
There is no collective agreement or other agreement with any trade union or
employee association currently in force with the Vendor.
(d) Employer
Associations: The Vendor is not a member of any employer, management, industry
or other trade, labor relations or business association under which the Vendor
is obligated to contribute to any employee or contractor employee benefit or
industry enhancement fund, including any pension plan, health benefit plan
or
other similar employee entitlement plan.
(e) Employee
Benefits: The Books and Records accurately set out all accumulated vacation
entitlement, regular and supplementary vacation pay, accumulated and deferred
overtime compensation, time-off entitlement, severance, accumulated sick leave,
retirement benefits and benefits due or accruing under Benefit Plans to all
Employees.
(f) Benefit
Plans: Schedule O contains a list of all Benefit Plans applicable to Employees
which is complete and accurate in all respects. The Vendor has provided
Purchaser with descriptions of all of the Benefit Plans which are complete
and
accurate.
3.9. Litigation
and Claims
(a) Proceedings:
Schedule M contains a listing and description of all current, pending and,
to
the Knowledge of the Vendor, threatened, actions, claims, demands, lawsuits,
assessments, arbitrations, judgments, awards, decrees, orders, injunctions,
prosecutions and investigations, and other proceedings, of, by, against, or
relating to, the Vendor, any of the Assets or the Business (the “Proceedings”),
which is complete and accurate. The Vendor is not aware of any basis for any
other action, claim, demand, lawsuit, prosecution, assessment, arbitration,
investigation or other proceeding which, if pursued, would have a significant
likelihood of having an adverse effect on the Vendor, the Business or any of
the
Assets.
(b) No
Seizure: There is no appropriation, expropriation or seizure of any of the
Assets that is pending or, to the Knowledge of the Vendor, that has been
threatened.
3.10. Contracts
and Commitments
(a) Material
Contracts: Schedule G contains a complete and accurate list and description
of,
and specifically identifies, all contracts, agreements, leases, commitments,
indentures and instruments which are Material to the Vendor and to which the
Vendor is a party, by which the Vendor is bound or under which the Vendor is
entitled to any benefits, including without limitation any contract, agreement,
lease, commitment, indenture or instrument which, or under which:
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25 -
(i) performance
of any right or obligation by any party to it may occur over a period of time
greater than one year;
(ii) an
expenditure, receipt, or transfer or other disposition of property with a value
of greater than $10,000 may arise under it other than one with a customer in
the
ordinary course of business;
(iii) has
not
been entered into in the ordinary course of business; or
(iv) relates
to or affects any interest in real property whether freehold, leasehold or
otherwise;
Correct
and complete copies of the Material Contracts have been made available to the
Purchaser.
(b) Good
Standing: The Vendor is not in breach or default of any of the terms of any
of
the Material Contracts and the Vendor is not aware of any Material breach or
default of any term of any of the Material Contracts by any other party
thereto.
(c) Forward
Commitments: All outstanding forward commitments by or on behalf of the Vendor
for the purchase or sale of inventory have been made in accordance with the
established price lists of the Vendor or its suppliers or, if otherwise, in
accordance with the Vendor's normal business custom.
3.11. Effect
of Transaction
(a) No
Adverse Implications: Neither the execution and delivery of this Agreement
nor
the completion and performance of the transactions and obligations contemplated
by or contained in this Agreement will:
(i) give
any
Person the right to accelerate, terminate or cancel any contractual or other
right of the Vendor or to remove any of the Assets;
(ii) result
in
the creation of any Encumbrance (other than Permitted Encumbrances) on any
of
the Assets or in a breach of or a default under any agreement giving a third
party security against any of the Assets;
(iii) result
in
a breach or contravention of or default under any provision of any Permit,
contract, agreement, instrument, lease, indenture, authority, certificate,
consent, statute, regulation, bylaw, order, ruling, decision, arbitration award,
judgment, decree or law to which the Vendor is a party or by or to which the
Vendor, or any of the Assets are bound or are subject, which will have a
Material adverse effect on the Assets or the Business or which will impair
the
legality or enforceability of this Agreement or the transactions contemplated
by
this Agreement, or require the consent of any Person;
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(iv) be
contrary to any of the provisions of the Charter Documents of the Vendor;
or
(v) result
in
any fees, duties, Taxes, assessments or other amounts relating to any of the
Assets becoming due or payable.
(b) Government
Approvals: There is no authorization, license, approval, consent, order or
any
other action of, or any registration, declaration, filing or notice with or
to
any Governmental Authority, court, board, or administrative tribunal that is
required for the execution or delivery by the Vendor of this Agreement, or
the
completion or performance by the Vendor of any of the transactions contemplated
by this Agreement, or the validity or enforceability of this Agreement against
the Vendor.
3.12. Environmental
(a) Hazardous
Material: Since May 4, 2004: No Hazardous Materials or other material used
in or
generated by the Business or any of the Assets have been or are currently
placed, used, stored, treated, manufactured, disposed of, released, discharged,
spilled or emitted in violation of any applicable Environmental Protection
Laws.
All Hazardous Materials disposed of, removed, emitted, released, discharged
or
spilled from or treated on the land on which the Leased Premises are situate
were and are documented, handled, transported and disposed of in compliance
with
all applicable Environmental Protection Laws.
(b) Waste
Disposal: All of the facilities on the land on which the Leased Premises are
situate that were or are used for the generation or disposal of Hazardous
Materials or other material used in or generated by the Business or in or on
any
of the Leased Premises have been and are properly permitted and operated in
Material compliance with all applicable Environmental Protection
Laws.
(c) Environmental
Agreements: There is no agreement or consent order to which the Vendor is a
party relating to any environmental matter, and no such agreement or order
is
necessary for the continued compliance of any of the Assets or their respective
uses or the Business with applicable Environmental Protection Laws concerning
the generation, storage or disposal of Hazardous Materials.
(d) Investigations:
Since May 4, 2004 there have been no orders, claims or demands issued or
threatened and no investigations conducted, taken or threatened under or
pursuant to any Environmental Protection Laws with respect to the Assets or
the
Business, of which the Vendor is aware, other than routine inspections. The
Vendor is not aware of any circumstances or events that have any reasonable
prospect of resulting in any claim, action or other proceeding with respect
to
Hazardous Materials or in an order or investigation under or pursuant to any
Environmental Protection Laws.
(e) Permits:
All permits, licenses, approvals, authorizations, consents, registrations,
privileges, waivers, exemptions, orders, certificates, rulings, agreements
or
other concessions required under applicable Environmental Protection Laws to
own
or operate the Assets or carry on the Business have been obtained, all terms
and
conditions attached thereto have been duly complied with, and all such permits,
licenses, approvals, authorizations, consents, privileges, waivers, exemptions,
orders, certificates, rulings, agreements and registrations are in full force
and effect and in good standing, in each case where the failure to obtain,
comply with or be in effect would have an adverse effect on the Vendor taken
as
a whole.
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(f) Adverse
Proceedings: There have been and are no actions, claims or other proceedings
commenced or threatened with respect to any of the Assets or the Business
pursuant to Environmental Protection Laws or with respect to Hazardous
Materials.
(g) Nuisance:
The use of, and operations relating to, any of the Assets or the Business do
not
constitute a nuisance of any nature, nor has any claim for nuisance been made
in
respect of such use and operations by any Person.
3.13. Audits
The
Vendor has delivered to the Purchaser the last 3 FDA audits of the Vendor,
the
last 6 quality systems and manufacturing audits of the Vendor and the last
3
years of Audited Financial Statements of the Parent with all commentary and
notes attached that are part of the audit.
3.14. Compliance
with the Foreign Corrupt Practices Act and Export Control and Antiboycott
Laws
(a) Vendor
and its representatives have not, to obtain or retain business, directly or
indirectly offered, paid or promised to pay, or authorized the payment of,
any
money or other thing of value (including any fee, gift, sample, travel expense
or entertainment with a value in excess of $10,000 in the aggregate to any
one
individual in any year) or any commission payment in excess of 5 percent (5%)
of
any amount payable, to:
(i) any
person who is an official, officer, agent, employee or representative of any
Governmental Authority or of any existing or prospective customer (whether
government owned or nongovernment owned);
(ii) any
political party or official thereof;
(iii) any
candidate for political or political party office; or
(iv) any
other
individual or entity; while knowing or having reason to believe that all or
any
portion of such money or thing of value would be offered, given, or promised,
directly or indirectly, to any such official, officer, agent, employee,
representative, political party, political party official, candidate,
individual, or any entity affiliated with such customer, political party or
official or political office.
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(b) Each
transaction is properly and accurately recorded on the Books and Records of
Vendor, and each document upon which entries in Vendor's Books and Records
are
based is complete and accurate. Vendor maintains a system of internal accounting
controls designed to insure that Vendor maintains no off-the-books accounts
and
that Vendor's assets are used only in accordance with Vendor's management
directives.
(c) Vendor
has at all times been in compliance with all Legal Requirements relating to
export control and trade embargoes. No product sold or service provided by
Vendor during the last five (5) years has been, directly or indirectly, sold
to
or performed on behalf of Cuba, Iraq, Iran, Libya or North Korea.
(d) Vendor
has not violated the antiboycott prohibitions contained in 50 U.S.C. sect.
2401
et seq. or taken any action that can be penalized under Section 999 of the
Code.
During the last five (5) years, Vendor has not been a party to, is not a
beneficiary under and has not performed any service or sold any product under
any Vendor Contract under which a product has been sold to customers in Bahrain,
Iraq, Jordan, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, Sudan, Syria,
United Arab Emirates or the Republic of Yemen.
3.15. Brokers
or Finders
Neither
Vendor nor any of its representatives have incurred any obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payments in connection with the sale of Vendor's business
or
the Assets or the Contemplated Transactions, except the fees earned by CIBC
World Markets under their agreement dated December 12, 2006 and the amendment
dated June 29, 2007, which shall be the responsibility of the Parent
Company.
4. Representations
and Warranties of the Parent Company
The
Parent Company represents and warrants to the Purchaser as follows and
acknowledges that the Purchaser is relying on the following representations
and
warranties in connection with the purchase of the Business and the
Assets:
(a) Status:
The Parent Company is a duly incorporated and validly existing company and
in
good standing under the laws of Delaware, and has the corporate power to own
its
property and conduct its business in the manner in which such business is now
being conducted. and has full power and capacity to own its assets and to carry
on its business as now conducted and to enter into, carry out the transactions
contemplated by, and duly observe and perform all its obligations contained
in,
this Agreement.
(b) Due
Authorization: The execution and delivery of this Agreement and all documents,
instruments and agreements required to be executed and delivered by the Parent
Company pursuant to this Agreement, and the completion and performance of the
transactions and obligations contemplated by or contained in this Agreement,
have been duly authorized by all necessary corporate action on the part of
the
Parent Company, and this Agreement has been duly executed and delivered by
the
Parent Company and constitutes a legal, valid and binding obligation of the
Parent Company enforceable in accordance with its terms.
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(c) Non-contravention:
Neither the execution and delivery of this Agreement nor the completion and
performance of the transactions and obligations contemplated by or contained
in
this Agreement will result in a breach of or default under, or be contrary
to,
any of the provisions of the Charter Documents of the Parent Company or any
Encumbrance, indenture, contract, agreement or instrument to which the Parent
Company is a party or by which the Parent Company is bound.
(d) No
Knowledge: The Parent Company is not aware of any of the representations and
warranties of the Vendor in Article 3 being incorrect or untrue.
5. Representations
and Warranties of the Purchaser
The
Purchaser represents and warrants to the Vendor and the Parent Company as
follows and acknowledges that the Vendor and the Parent Company are relying
upon
the following representations and warranties in connection with the sale of
the
Business and the Assets:
(a) Status:
The Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia, and has the corporate
power to own its property and conduct its business in the manner in which such
business is now being conducted and has full power and capacity to enter into,
carry out the transactions contemplated by, and duly observe and perform all
its
obligations contained in this Agreement.
(b) Due
Authorization: The execution and delivery of this Agreement and all documents,
instruments and agreements required to be executed and delivered by the
Purchaser pursuant to this Agreement, and the completion and performance of
the
transactions and obligations contemplated by or contained in this Agreement,
have been duly authorized by all necessary corporate action on the part of
the
Purchaser, and this Agreement has been duly executed and delivered by the
Purchaser and constitutes a legal, valid and binding obligation of the Purchaser
enforceable in accordance with its terms.
(c) Non-contravention:
Neither the execution and delivery of this Agreement nor the completion and
performance of the transactions and obligations contemplated by or contained
in
this Agreement will result in a breach of or default under, or be contrary
to,
any of the provisions of the Charter Documents of the Purchaser or any
Encumbrance, indenture, contract, agreement or instrument to which the Purchaser
is a party or by which the Purchaser is bound.
(d) No
Knowledge: The Purchaser is not aware of any of the representations and
warranties of the Vendor in Article 3 being incorrect or
untrue.
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6. Pre-closing
Matters and Other Covenants
6.1. Operations
until Closing
Except
as
otherwise provided in this Agreement or unless otherwise agreed or consented
to
in writing by the Purchaser, the Vendor shall from the date of this Agreement
up
to the Closing:
(a) Conduct
of Business: Carry on and conduct the Business in all Material respects in
the
ordinary course consistent with past practice and in particular:
(i) use
all
reasonable efforts to preserve the Assets intact and maintain the Assets in
accordance with standard industry practice;
(ii) not
allow
any of the Assets to become subject to any Encumbrance except Permitted
Encumbrances;
(iii) not
sell,
lease, license, transfer or otherwise dispose of, or agree to sell, lease,
license, transfer or otherwise dispose of, any of the Assets except in the
ordinary course of the Business, consistent with past practice;
(iv) use
all
reasonable efforts to keep available the services of the present Employees
for
the Purchaser and to maintain relations and goodwill with suppliers, customers
and others having business relations with the Vendor in respect of the
Business;
(v) take
good
care of all the Assets and do all necessary repairs and maintenance to such
of
the Assets as are used by the Vendor in the ordinary course of the Business,
and
take reasonable care to protect and safeguard the Assets;
(vi) make
all
necessary Tax, governmental and other filings in a timely fashion;
and
(vii) pay
to
all its Employees all wages, salaries and commissions (in accordance with
Vendor’s commission plans as set forth in Schedule 6.1(a)(vii) (“Vendor’s
Commission Plans”)) earned but unpaid, and all earned but unpaid vacation pay
for vacation days taken or accrued and sick leave pay for sick leave taken
and
other entitlements under Benefit Plans up to and including the Closing Date;
(b) New
Capital Projects: Not, unless required by law or required to repair or replace
any loss or damage to the Assets arising subsequent to the execution of this
Agreement, commence any new capital projects the cost of which are in excess
of
$5,000.00 in the aggregate;
(c) Agreements:
Not, amend, vary, cancel or terminate any of the Contracts, Material Contracts
or Permits, or enter into any contract, agreement, instrument, commitment,
lease, or indenture which is Material within the meanings thereof set out in
Sections 3.10(a)(i) to (iv), or obtain any additional permit, license,
registration or other right of the kind described in Section 3.3(a) in
connection with the Business, except any additional permits, licenses,
registrations or other rights of the kind described in Section 3.3(a) obtained
or entered into in the ordinary course of the Business, consistent with past
practice, or as required by law; and
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(d) Access:
Provide to the Purchaser, its employees, representatives and agents, reasonable
access during normal business hours to the Vendor's personnel and its facilities
and properties and to the Books and Records and to all, or true copies of all,
title documents, indentures, contracts, agreements, Encumbrances, instruments,
leases and other documents relating to the Assets or the Business, and furnish
them with all such information relating to the Business and the Assets as the
Purchaser from time to time reasonably requests; it being acknowledged and
agreed by the Vendor that no investigation made by the Purchaser or any of
its
employees, representatives or agents shall have the effect of waiving or
diminishing the scope of, or otherwise affect the Purchaser's right to rely
on,
any representation or warranty made by the Vendor or the Parent Company in
this
Agreement or in any document, instrument or agreement delivered pursuant to
this
Agreement.
6.2. Confidentiality
The
Purchaser acknowledges that any information, materials and documentation
received or observed by it pursuant to or as contemplated by Section 6.1(d),
either before or after execution of this Agreement, is confidential. The
Purchaser shall take, and shall cause its employees, representatives and agents
to take, all reasonable steps and precautions to protect and maintain the
confidentiality of such information, materials and documentation; provided
that
the foregoing will not prevent the Purchaser from disclosing or making available
to its accountants, professional advisors and bankers and other lenders, any
such information, materials and documentation on a confidential basis for the
purpose of carrying out the transactions contemplated by this
Agreement.
6.3. Return
of Information
If
the
purchase of the Business and Assets pursuant to this Agreement is not completed,
the Purchaser shall return to the Vendor all materials, documentation, data,
records, drawings and other papers and copies thereof (whether on paper or
in
electronic, magnetic, photographic, mechanical or optical storage) relating
to
the Assets or the Business which is confidential and which is in the possession
of the Purchaser and maintain the confidentiality of all information or
knowledge obtained from the Vendor, and not use any such information or
knowledge for any purpose whatsoever.
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6.4. Consents
and Re-issues
The
Vendor shall use all reasonable efforts to obtain, prior to the Closing
Date:
(a) all
consents and approvals, in form and substance satisfactory to the Purchaser,
acting reasonably, necessary for the assignment of the Vendor's interests in
the
Contracts and the Permits, and of any other of the Assets, to the Purchaser;
and
(b) if
applicable, the re-issue of any of the Contracts and the Permits in the name
of
the Purchaser, and the Vendor shall not, except as presently contemplated by
the
terms thereof, or except with the prior written consent of the Purchaser, agree
to any amendment or variation to the terms of any of the Contracts or the
Permits in connection with, or as a condition of, such assignment or
re-issue.
The
Purchaser shall give to the Vendor such information and copies of such documents
relating to the Purchaser which the Vendor may reasonably request in order
to
obtain any consent or approval, or re-issue referred to above.
6.5. Consent
Not Received by Closing
If
a
consent or approval of a third party required to permit the transfer or
assignment to the Purchaser of the Vendor's interest in any of the Contracts
or
the Permits, or of any other of the Assets, is not received on or before the
Closing, and if, notwithstanding such non-receipt, the Vendor and the Purchaser
proceed to complete the sale and the purchase of the Business and the Assets
contemplated by this Agreement, the transfer or assignment of those Contracts
and Permits, and other Assets, in respect of which the required consent has
not
been received on or before the Closing will not be effective in each case until
the applicable consent or approval has been received, and such Contract or
Permit, or other Asset, will be held by the Vendor following the Closing in
trust for the benefit and exclusive use of the Purchaser, provided that Vendor
shall not be required to incur out-of-pocket costs in excess of $25,000 in
the
aggregate in connection with all such consents and approvals unless Purchaser
shall contemporaneously reimburse Vendor for such excess costs.
6.6. Non-assignable
Contracts and Permits
Notwithstanding
any other provision of this Agreement, it is acknowledged and agreed by the
Purchaser that certain of the Contracts are not by their terms, and certain
of
the Permits are not, assignable to the Purchaser. The parties agree that the
aforementioned Contracts and Permits which are not assignable are not included
in the Assets being sold and transferred to the Purchaser and are not included
in the Contracts and Permits being assumed by the Purchaser.
6.7. Purchaser's
Covenant
The
Purchaser shall, prior to the Closing Date, execute and deliver such assumption
agreements and applications for consents in such forms and content, all as
may
be reasonably required by the Vendor to obtain the consents and approvals,
and
the re-issues, referred to in Section 6.4.
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33 -
6.8. Preservation
of Records
Following
the Closing, Purchaser shall preserve and, during regular business hours and
upon reasonable notice, make available to Vendor and its representatives for
inspection and copying all Books and Records pertaining to the Vendor for
periods prior to the Closing Date, wherever located, for six years from the
Closing Date, for (i) the purposes of preparing Tax returns and financial
statements and responding to Tax audits, (ii) the purposes of prosecuting or
defending any claim, litigation, proceeding or investigation which arises out
of
or relates to the Vendor or this Agreement, and (iii) any other reasonable
business purpose of Vendor or the Parent Company.
6.9. Material
Licenses
The
Vendor or Parent Company shall use reasonable commercial efforts to assign
the
Material Licenses to the Purchaser or to enter into a sublicense agreement
with
the Purchaser which allows the Purchaser the right to use the products or
software relating to the Material Licenses or to make other arrangements
reasonably satisfactory to the Purchaser with the third parties to the Material
Licenses so that the Purchaser can use the products or software relating to
the
Material Licenses legally in order to continue to operate the Business, provided
that any such assignment shall be limited to the University of Texas, ▇▇▇▇,
Journyx, Doors and Agile licenses, and further provided that Vendor and Parent
Company shall not be required to take any action which might result in any
violation of any of the Material Licenses by Vendor or Parent Company or in
any
way jeopardize Parent Company’s rights under the SAMM (Sales Logix) or ▇▇▇
(Macola) licenses or to pay any fees to any licensor in connection with any
such
assignment, sublicence or other arrangement.
6.10. FDA
Matters
Pursuant
to FDA’s existing transfer procedure, Vendor and/or Parent Company shall:
(i)
file
with
FDA an original and a copy of a letter (on their letterhead and signed by a
duly
authorized Person) notifying FDA of the change of ownership of the Business
(including any FDA filings) to Purchaser and take such other appropriate actions
consistent with its obligations pursuant to Section 13.3; and
(ii)
provide
Purchaser with a complete copy of any PMA or 510k approvals.
Purchaser
shall be responsible for all other steps necessary to perfect the transfer
of
the PMA Approval under FDA’s rules and procedures, including but not limited to,
providing FDA with a written commitment to comply with conditions of approval
applicable to the PMA Approval.
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7. Conditions
of Closing
7.1. Conditions
of the Purchaser
The
obligation of the Purchaser to complete the purchase of the Business and the
Assets contemplated by this Agreement is subject to the fulfillment of the
following conditions:
(a) Representations
and Warranties: The representations and warranties of the Vendor and of the
Parent Company contained in this Agreement being true and correct in all
Material respects on and as of the Closing with the same effect as though such
representations and warranties had been made as of the Closing;
(b) Covenants:
All of the covenants and obligations of the Vendor to be performed or observed
on or before the Closing pursuant to this Agreement having been duly performed
or observed;
(c) Releases:
There having been delivered to the Purchaser duly executed releases in
registrable form where applicable, of or evidence to the satisfaction of the
Purchaser as to the discharge of, all Encumbrances against the Assets including
the Permitted Encumbrances numbered 5 through 7 in Schedule I except Permitted
Encumbrances numbered 1 through 4 in Schedule I; and
(d) Non-Competition
Agreement: The Vendor and the Parent Company having executed and delivered
to
the Purchaser a non-competition agreement in the form in Schedule V;
and
(e) The
Vendor shall have obtained the Product Liability Insurance;
In
the
event that any of the foregoing conditions are not performed or fulfilled at
or
before the Closing, the Purchaser may terminate this Agreement, in which event,
subject to Section 13.9 the Purchaser will be released from all obligations
under this Agreement, and the Vendor and the Parent Company will also be so
released unless the Vendor or the Parent Company, as the case may be, was
reasonably capable of causing such condition or conditions to be fulfilled
or
unless the Vendor or the Parent Company, as the case may be, has breached any
of
its covenants or obligations in or under this Agreement. The foregoing
conditions are for the benefit of the Purchaser only and accordingly the
Purchaser will be entitled to waive compliance with any such conditions if
it
sees fit to do so, without prejudice to its rights and remedies at law and
in
equity and also without prejudice to any of its rights of termination in the
event of non-performance of any other conditions in whole or in
part.
7.2. Conditions
of the Vendor
The
obligation of the Vendor to complete the sale of the Business and the Assets
contemplated by this Agreement is subject to the fulfillment of each of the
following conditions:
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35 -
(a) Representations
and Warranties: The representations and warranties of the Purchaser contained
in
this Agreement being true and correct in all Material respects on and as of
the
Closing with the same effect as though such representations and warranties
had
been made as of the Closing;
(b) Covenants:
All of the covenants and obligations of the Purchaser to be performed or
observed on or before the Closing pursuant to this Agreement having been duly
performed or observed;
(c) Assumption
Agreement: The Purchaser having executed and delivered to Vendor the Assumption
Agreement, in the form attached hereto as Schedule P;
(d) To
the
extent required by the terms of the Lease, the landlord under the Lease shall
have consented to the assignment thereof to the Purchaser; and
(e) The
Vendor shall have obtained the Product Liability Insurance.
In
the
event that any of the foregoing conditions are not performed or fulfilled at
or
before the Closing, the Vendor may terminate this Agreement, in which event,
subject to Section 13.9 the Vendor and the Parent Company will be released
from
all obligations under this Agreement, and the Purchaser will also be so released
unless the Purchaser was reasonably capable of causing such condition or
conditions to be fulfilled or unless the Purchaser has breached any of its
covenants or obligations in or under this Agreement. The foregoing conditions
are for the benefit of the Vendor only and accordingly the Vendor will be
entitled to waive compliance with any such conditions if it sees fit to do
so,
without prejudice to its rights and remedies at law and in equity and also
without prejudice to any of its rights of termination in the event of
non-performance of any other conditions in whole or in part.
7.3. Mutual
Conditions
The
obligations of the Vendor to complete the sale of the Business and Assets
contemplated by this Agreement and of the Purchaser to complete the purchase
of
the Business and Assets as contemplated by this Agreement are subject to
fulfillment of the following conditions:
(a) No
Orders
or Proceedings: No injunction or restraining order or other decision, ruling
or
order of a court, board, Governmental Authority or administrative tribunal
of
competent jurisdiction being in effect which prohibits, restrains, limits or
imposes conditions on the transactions contemplated by this Agreement and no
action or proceeding having been instituted or remaining pending or having
been
threatened before any such court, board, Governmental Authority or
administrative tribunal to restrain, prohibit, limit or impose conditions on
the
transactions contemplated by this Agreement; and
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(b) Closing:
The Closing shall have occurred on or before September 17, 2007;
In
the
event that any of the foregoing conditions is not performed or fulfilled at
or
before the Closing, either the Purchaser or the Vendor may, subject to Section
13.9, terminate this Agreement, in which event the parties will be released
from
all obligations under this Agreement, except that no party will be released
from
its obligations if it was reasonably capable of causing such condition or
conditions to be fulfilled or has breached any of its covenants or obligations
in or under this Agreement.
8. Employees
8.1. Vendor
Actions
Except
as
set forth in Section 8.3, once the
Closing
occurs,
the Employees will cease to be employed by the Vendor, and the Vendor shall
pay
all earned and outstanding compensation owing to them as of the Closing Date,
including without limitation, salary, wages, overtime, benefits,
commissions (in accordance with Vendor’s Commission Plans), sick
leave pay for sick leave taken, and vacation pay for vacation days taken or
accrued; provided, however, that the Vendor shall not be liable for or required
to pay any severance pay,
bonuses, (other than retention bonuses) and benefits under the agreements listed
in Schedule 8.1 (the “Employee Agreements”). The Vendor shall provide to the
Purchaser evidence,
reasonably
satisfactory to the Purchaser at the Closing, that the said Employees’
employment has been terminated and that they have been paid as aforesaid.
8.2. Purchaser
Actions
The
Purchaser shall offer all the Employees listed on Schedule B, other
than those who are parties to the Employee
Agreements,
employment subject to the Purchaser’s terms
and
conditions
of
employment
and
subject to the Purchaser’s planned reorganization following the Closing. Until
said reorganization following the Closing, the Employees shall earn
substantially the same wages
and
shall work at the same
location as prior to the Closing.
For all
Employees hired by the Purchaser
the
terms and conditions of employment shall be in accordance with the policies
and
benefits of the Purchaser. For any Employee who is not hired by Purchaser,
Purchaser will be responsible for payment of severance benefits,
provided, however, that no severance shall be payable to any Employee who is
offered employment by Purchaser in
accordance with this Section 8.2 but
who
declines such offer of employment.
8.3
Employee
Agreements
For
those
Employees who are parties to the Employee Agreements who wish to continue in
their employment, the employment of said Employees will not cease at the Closing
but will continue post-Closing, with the Purchaser as the employer, subject
to
the terms, policies and benefits of the Purchaser except
to
the extent that the Employee Agreements provide for greater non-stock
benefits.
With
regard to such Employees, the Vendor will remain responsible for payment of
all
earned and outstanding compensation owing to them as of the Closing Date,
including without limitation, salary, wages, overtime, benefits, commissions
(in
accordance with Vendor’s Commission Plans), incentive payments, sick leave pay
for sick leave taken, vacation pay for vacation days taken or accrued, and
any
form of retention bonuses.
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37 -
If
any
Employee who is party to an Employee Agreement does not continue employment
with
the Purchaser post-Closing, the Vendor will remain responsible for payment
of
all earned and outstanding compensation owing to the Employee as of the Closing
Date, including without limitation, salary, wages, overtime, benefits,
commissions (in accordance with Vendor’s Commission Plans), sick leave pay for
sick leave taken, vacation pay for vacation days taken or accrued, and retention
bonuses.
The
Purchaser will be responsible to the Employees who are parties to the Employee
Agreements for all obligations of the Vendor or Parent Company under the
Employee Agreements, other than any retention bonuses or stock benefits in
accordance with the terms of the Employee Agreements.
8.4
No
New
Contractual Rights or Obligations
Nothing
contained in this Section 8 dealing with the Vendor’s Employees shall be
construed as creating new contractual rights and/or obligations on the part
of
the Vendor or the Purchaser to any current or former Employee of
Vendor.
9. Closing
Transactions
9.1. Time
and Place
The
Closing shall take place in the offices of the Purchaser at 10:00 o'clock a.m.
Virginia time on the Closing Date; or at such other time and date, or both,
as
the Vendor and the Purchaser or their respective counsel may agree
upon.
9.2. Vendor's
Closing Documents
At
the
Closing, the Vendor shall deliver the following to the Purchaser:
(a) all
deeds, bills of sale, conveyances, transfers, assignments, instruments and
other
documents which are necessary to assign, sell and transfer the Business and
the
Assets to the Purchaser as contemplated by this Agreement in such form and
content as the Purchaser may require, acting reasonably;
(b) certified
copies of a resolution of the directors and a resolution of the shareholders
of
the Vendor approving the completion of the transactions contemplated by this
Agreement including, without limitation, the sale of the Business and Assets,
and the execution and delivery of this Agreement and all documents, instruments
and agreements required to be executed and delivered by the Vendor pursuant
to
this Agreement in such form and content as the Purchaser may require, acting
reasonably;
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38 -
(c) a
certified copy of a resolution of the directors of the Parent Company approving
the execution and delivery of this Agreement and all documents, instruments
and
agreements required to be executed and delivered by the Parent Company pursuant
to this Agreement and content as the Purchaser may require, acting
reasonably;
(d) possession
of the Assets; and
(e) if
not
previously delivered to the Purchaser, the original Contracts and Permits to
the
extent in the possession of the Vendor.
9.3. Purchaser's
Closing Documents
At
the
Closing the Purchaser shall deliver certified copies of resolutions of the
directors of the Purchaser approving the transactions contemplated by this
Agreement, including, without limitation, the purchase of the Business and
the
Assets, and the execution and delivery of this Agreement and all documents,
instruments and agreements required to be executed and delivered by the
Purchaser pursuant to this Agreement in such form and content as the Vendor
may
require, acting reasonably.
9.4. Concurrent
Delivery
It
shall
be a condition of the Closing that all matters of payment and the execution
and
delivery of documents by any party to the others pursuant to the terms of this
Agreement shall be concurrent requirements and that nothing will be complete
at
the Closing until everything required as a condition precedent to the Closing
has been paid, executed and delivered, as the case may be.
9.5. Transfer
of Assets and Business
Subject
to compliance with the terms and conditions of this Agreement, the transfer
of
the Assets and the Business to the Purchaser shall be deemed to take effect
as
at the Closing.
10. [INTENTIONALLY
LEFT BLANK]
11. Post-closing
Matters
11.1. Change
and Use of Name
The
Vendor agrees that within 10 days from the Closing Date the Vendor shall change
its name and the names of any of its Affiliates that include the words “NOMOS”
to names that do not include the words “NOMOS” or any part thereof or any
similar words. The Vendor and the Parent Company agree that from and after
the
Closing Date neither the Vendor, the Parent Company nor any of their Affiliates
will use the words “NOMOS” or any part thereof or any similar
words.
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12. Survival
of Representations and Recourse
12.1. Survival
The
representations, warranties, covenants and obligations of the Vendor and of
the
Parent Company in or under this Agreement and in or under any documents,
instruments and agreements delivered pursuant to this Agreement shall survive
the completion of the transactions contemplated hereby regardless of any
investigations that the Purchaser may make or cause to be made, or knowledge
it
may have, prior to the Closing and shall continue in full force and effect
for a
period of one year from the Closing Date, as set out in Section
12.2.
The
representations, warranties, covenants and obligations of the Purchaser in
or
under this Agreement and in or under any documents, instruments and agreements
delivered pursuant to this Agreement shall survive the completion of the
transactions contemplated hereby regardless of any independent investigations
that the Vendor and Parent Company may make or cause to be made, or knowledge
either of them may have, prior to the Closing and shall continue in full force
and effect for a period of one year from the Closing Date, as set out in Section
12.3, provided that Purchaser's obligations with respect to the Assumed
Liabilities and under Sections 2.6, 6.8, 8.2, 8.3 and Article 12 shall continue
thereafter in accordance with their terms.
12.2. Indemnification
by Vendor and the Parent Company.
Vendor
and the Parent Company, shall severally and jointly indemnify and hold Purchaser
harmless against and with respect to, and shall reimburse Purchaser for any
and
all losses, liabilities, damages, costs and expenses including reasonable
attorney's fees (collectively “Losses”) arising out of or related to:
(a) Any
Breach of any representation or warranty, or nonfulfillment of any covenant
by
Vendor contained herein;
(b) Any
and
all Retained Liabilities; and
(c) Any
and
all actions, suits, proceedings, claims, demands, assessments, judgments, costs
and expenses, including, without limitation, reasonable legal fees and expenses,
incident to any of the foregoing or incurred in investigating or attempting
to
avoid the same or to oppose the imposition thereof, or in enforcing this
indemnity;
provided
that with respect to any claim for indemnification under this Section
12.2:
(i) written
notice of any such claim is given by or on behalf of the Purchaser to the Vendor
or the Parent Company, as the case may be, within one year from the Closing
Date;
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40 -
(ii) the
aggregate amount of all such Losses exceeds $100,000.00, provided that such
aggregate amount shall not include any Loss which, on an individual basis,
does
not exceed $5,000, and the Vendor and the Parent Company shall not have any
liability with respect to any such Losses;
(iii) the
Vendor and the Parent Company shall have liability only to the extent that
the
aggregate amount of the Losses under (ii) exceeds $100,000.00, and then only
for
the amount of any such excess; and
(iv) the
aggregate amount of liability for all such Losses is limited to
$2,000,000.00.
12.3. Indemnification
by Purchaser.
Purchaser shall indemnify and hold Vendor and Parent Company harmless against
and with respect to, and shall reimburse Vendor and Parent Company for any
and
all Losses arising from or related to:
(a) Any
breach of any representation or warranty or nonfulfillment of any covenant
by
Purchaser contained herein;
(b) Any
and
all of the Assumed Liabilities;
(c) Any
and
all actions, suits, proceedings, claims, demands, assessments, judgments, costs
and expenses, including, without limitation, reasonable legal fees and expenses,
incident to any of the foregoing or incurred in investigating or attempting
to
avoid the same or to oppose the imposition thereof, or in enforcing this
indemnity; and
(d) Any
and
all liabilities and obligations under the Worker Adjustment and Retraining
Notification Act of 1988, as amended, arising as a result of termination of
employment, layoff or hours reduction of any Employee, or any other actions
taken by the Purchaser, after the Closing;
provided
that with respect to any claim for indemnification based upon a breach of a
representation or warranty by the Purchaser under this Agreement, written notice
of such claim is given on behalf of the Vendor or the Parent Company to the
Purchaser within one year of the Closing Date:
12.4. Defense
of Third Party Claims
In
the
event of a claim (an “Indemnity Claim”) being made by a third party against a
party to this Agreement (the “Indemnified Party”) in respect of which, subject
to Section 12.2, another party to this Agreement (the “Indemnifier”) is or may
be obligated under or arising out of this Agreement to indemnify, pay damages
to
or otherwise compensate the Indemnified Party, the following provisions shall
apply.
The
Indemnified Party shall promptly give written notice to the Indemnifier of
any
Indemnity Claim in respect of which the Indemnified Party intends to claim
for
indemnification against the Indemnifier. Such notice shall specify with
reasonable particularity (to the extent that the information is available)
the
nature of the Indemnity Claim. The Indemnifier may, at its own expense, assume
control of the negotiation, settlement and defense of such Indemnity Claim.
The
Indemnified Party shall co-operate with the Indemnifier in respect of such
Indemnity Claim and the Indemnifier shall reimburse the Indemnified Party for
all the Indemnified Party's reasonable expenses as a result of the Indemnifier's
assumption of such Indemnity Claim and arising from the Indemnified Party's
co-operation.
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41 -
The
Indemnified Party will have the right to participate in the negotiation,
settlement and defense of such Indemnity Claim at its own expense and will
have
the right to disagree on reasonable grounds with the selection and retention
of
counsel, in which case counsel satisfactory to the Indemnifier and the
Indemnified Party shall be retained by the Indemnifier. If the Indemnifier
fails
to defend any Indemnity Claim within a reasonable time, the Indemnified Party
will be entitled to assume control of the Indemnity Claim at the expense of
the
Indemnifier and the Indemnifier will be bound by the results obtained by the
Indemnified Party with respect to such Indemnity Claim.
The
following provisions shall also apply with respect to Indemnity
Claims:
(a) In
the
event that any Indemnity Claim is of a nature such that the Indemnified Party
is
legally bound or required by applicable law to make a payment to any person
(a
“Third Party”) with respect to such Indemnity Claim before the completion of
settlement negotiations or related legal proceedings, including, without
limitation, the posting of any security to stay any process of execution or
judgment, the Indemnifier shall be obligated to make such payment or post
security therefor on behalf of the Indemnified Party. If the Indemnifier fails
to do so, the Indemnified Party may make such payment or post security therefor
and the Indemnifier shall, forthwith after demand by the Indemnified Party,
reimburse the Indemnified Party for any such payment or cause the security
to be
replaced and released. If the amount of any liability of the Indemnified Party
under the Indemnity Claim in respect of which such a payment was made, as
finally determined, is less than the amount which was paid by the Indemnifier
to
the Indemnified Party, the Indemnified Party shall, forthwith after receipt
of
the difference from the Third Party, pay the amount of such difference to the
Indemnifier.
(b) Except
in
the circumstance contemplated by Section 12.4(a) above, and unless the
Indemnifier fails to assume control of the negotiation, settlement and defense
of any Indemnity Claim, the Indemnified Party shall not negotiate, settle,
compromise or pay any Indemnity Claim except with the prior written consent
of
the Indemnifier (which consent shall not be unreasonably withheld).
(c) The
Indemnified Party shall not permit any right of appeal in respect of any
Indemnity Claim to terminate without giving the Indemnifier notice thereof
and
an opportunity to contest such Indemnity Claim.
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42 -
(d) The
Indemnified Party and the Indemnifier shall co-operate fully with each other
with respect to Indemnity Claims, shall keep each other fully advised with
respect thereto (including supplying copies of all relevant documentation
promptly as it becomes available) and shall each designate a senior officer
who
will keep himself or herself informed about and be prepared to discuss the
Indemnity Claim with his or her counterpart and with counsel at all reasonable
times.
(e) Notwithstanding
the above provisions of this Section 12.4, the Indemnifier shall not settle
any
Indemnity Claim or conduct any related legal or administrative proceeding in
a
manner which would, in the opinion of the Indemnified Party, acting reasonably,
have a Material adverse impact on the Indemnified Party.
(f) The
provisions of this Section 12.4 are intended to set out the procedures to be
followed with respect to an Indemnity Claim and, provided the Indemnified Party
follows such procedures in all Material respects, nothing contained in this
Section 12.4 will derogate from the Indemnifier's obligations to indemnify
the
Indemnified Party.
12.5. Characterization
of Indemnification Payments
All
payments paid by any party under this Article
12
shall be
treated as adjustments to the Purchase Price for all Tax purposes.
12.6. Computation
of Losses; Disputes
The
amount of any Losses for which indemnification is provided under this
Article
12
shall be
reduced by (a) any related Tax benefits if and when actually realized or
received (but only after taking into account any Tax benefits (including,
without limitation, any net operating losses or other deductions and any
carryovers or carrybacks) to which the Indemnified Party would be entitled
without regard to such item), except to the extent such recovery has already
been taken into account in determining the amount of any such Losses, and (b)
any insurance recovery if and when actually realized or received, in each case
in respect of such Losses. Any such recovery shall be promptly repaid by the
Indemnified Party to the Indemnifier following the time at which such recovery
is realized or received pursuant to the previous sentence, minus all reasonably
allocable costs, charges and expenses incurred by the Indemnitee in obtaining
such recovery. Notwithstanding the foregoing, if (x) the amount of Losses for
which the Indemnifier is obligated to indemnify the Indemnified Party is reduced
by any Tax benefit or insurance recovery in accordance with the provisions
of
the previous sentence, and (y) the Indemnified Party subsequently is required
to
repay the amount of any such Tax benefit or insurance recovery or such Tax
benefit or insurance recovery is disallowed, then the obligation of the
Indemnifier to indemnify with respect to such amounts shall be reinstated
immediately and such amounts shall be paid promptly to the Indemnified Party
in
accordance with the provisions of this Agreement.
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43 -
12.7. No
Consequential Damages
The
obligations of the Indemnifier in respect of a claim for indemnification under
this Agreement shall not include any special, exemplary or consequential
damages, including business interruption or lost profits, or any punitive
damages.
12.8. Mitigation
Each
of
the parties agrees to take all reasonable steps to mitigate their respective
Losses upon and after becoming aware of any event which could reasonably be
expected to give rise to any Losses that are indemnifiable
hereunder.
12.9. Subrogation
Upon
making any indemnification payment, the Indemnifier will, to the extent of
such
payment, be subrogated to all rights of the Indemnified Party against any third
party in respect of the Loss to which the payment relates. Without limiting
the
generality of any other provision hereof, each such Indemnifier and Indemnified
Party will duly execute upon request all instruments reasonably necessary to
evidence and perfect the above-described subrogation rights.
12.10. Exclusivity
From
and
after the Closing, none of the parties hereto shall be liable or responsible
in
any manner whatsoever to any other party, whether for indemnification or
otherwise, except for indemnity as expressly provided in this Article 12, which
provides the exclusive remedies and causes of action of the parties hereto
with
respect to any matter arising out of or in connection with this Agreement or
any
Schedule or Exhibit hereto or any opinion or certificate delivered in connection
herewith or any of the transactions contemplated hereby. The limitations or
liability contained in this Article 12 shall not apply to liability for fraud
on
the part of any of the parties to this Agreement.
12.11. Product
Liability Insurance
Vendor
will use best commercial efforts to obtain prepaid product liability insurance
in the form set out in Schedule 12.11 with respect to products manufactured
or
sold prior to the Closing Date for a period of 5 years from the Closing Date
in
the amount of $5,000,000.00, which shall name the Purchaser as a named insured
(the “Product Liability Insurance”). If Vendor obtains the Product Liability
Insurance, then notwithstanding any provision to the contrary in this Agreement,
Purchaser’s sole recourse with respect to any Product Liability Matter shall be
to the Product Liability Insurance, and neither Vendor nor Parent Company shall
have any liability to Purchaser with respect to any Product Liability Matter.
Neither the Vendor nor Parent Company will terminate, assign or cancel such
Product Liability Insurance during the 5 year term.
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13. Miscellaneous
13.1. Legal
and Other Fees and Expenses
Unless
otherwise specifically provided herein, the parties will pay their respective
legal, accounting and other professional fees and expenses incurred by each
of
them in connection with the negotiation and settlement of this Agreement, the
completion of the transactions contemplated by this Agreement and other matters
pertaining hereto.
13.2. Notices
Any
notice, request, demand or other communication required or permitted to be
given
under this Agreement shall be in writing and delivered by hand, facsimile
transmission or prepaid registered mail (return receipt requested) to the party
to which it is to be given as follows:
To
the
Vendor or the Parent Company:
North
American Scientific, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
Seyfarth
▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
To
the
Purchaser:
Best
Medical International, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
Best
Medical International, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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45 -
or
to
such other address or fax number as a party may specify by notice given in
accordance with this Section 13.2. Any such notice, request, demand or
other communication given as aforesaid will be deemed to have been given, in
the
case of delivery by hand, when delivered, in the case of delivery by facsimile
transmission, when a legible facsimile is received by the recipient if received
before 5:00 p.m. on a Business Day, or on the next Business Day if such
facsimile is received on a day which is not a Business Day or after 5:00 p.m.
on
a Business Day.
13.3. Further
Assurances
Each
of
the parties shall execute and deliver such further documents, instruments and
agreements and do such further acts and things as may be reasonably required
from time to time, either before, on or after the Closing Date, to carry out
the
full intent and meaning of this Agreement, give effect to the transactions
contemplated by this Agreement and assure to the Purchaser good and valid title
to the Assets, free and clear of all Encumbrances except Permitted Encumbrances
number 1 through 4 and the ability to continue the Business, provided that
no
party shall be required to incur any out-of-pocket costs in excess of $25,000.00
in the aggregate after the Closing in connection with the foregoing, provided
that in the case of Vendor and Parent Company such $25,000.00 limit shall be
applied to them collectively and not individually, and any unreimbursed costs
incurred under Section 6.5 shall count against said limit.
13.4. Time
of the Essence
Time
shall be of the essence of this Agreement.
13.5. Entire
Agreement
This
Agreement constitutes the entire agreement between the Vendor, the Parent
Company and the Purchaser pertaining to the transactions contemplated by this
Agreement and supersedes all prior agreements, undertakings, negotiations and
discussions, whether oral or written, of the Vendor, the Parent Company and
the
Purchaser, other than the Confidentiality Agreement between the Parent Company
and the Purchaser dated as of April 26, 2007, which shall continue in effect
in
accordance with its terms, and there are no warranties, representations,
covenants, obligations or agreements between the Vendor or the Parent Company
(or any Affiliate thereof) and the Purchaser except as set forth in this
Agreement.
13.6. Assignment
Except
with the written consent of the other parties (which may be arbitrarily
withheld), none of the parties may assign any of their respective benefits,
obligations or liabilities under or in respect of this Agreement; provided
however that, at any time prior to the Closing, the Purchaser may, without
any
such consent, assign all of its rights and benefits under this Agreement to
any
Affiliate of the Purchaser which delivers to the Vendor an instrument in writing
executed by the Affiliate confirming that it is bound by and shall perform
all
of the covenants and obligations of the Purchaser under this Agreement as if
it
were an original signatory thereto, jointly and severally bound thereby with
the
Purchaser, and such instrument in writing shall contain an acknowledgement
of
the Purchaser that it continues to be bound by this Agreement. Unless otherwise
agreed in writing by the Vendor and the Parent Company, no such assignment
will
relieve the Purchaser of its obligations and liabilities under this Agreement.
In the event of an assignment contemplated above, any reference in this
Agreement to “Purchaser” will be deemed to include the aforesaid
assignee.
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13.7. Invalidity
Each
of
the provisions contained in this Agreement is distinct and severable and a
determination of illegality, invalidity or unenforceability of any such
provision or part hereof by a court of competent jurisdiction shall not affect
the validity or enforceability of any other provision hereof, unless as a result
of such determination this Agreement would fail in its essential
purposes.
13.8. Waiver
and Amendment
Except
as
expressly provided in this Agreement, no amendment or waiver of it will be
binding unless made in writing by the party to be bound by such amendment or
waiver. No waiver of any provision, or any portion of any provision, of this
Agreement will constitute a waiver of any other part of the provision or any
other provision of this Agreement nor a continuing waiver unless otherwise
expressly provided.
13.9. Surviving
Provisions on Termination
Notwithstanding
any other provisions of this Agreement, if this Agreement is terminated, the
provisions of Sections 6.2, 6.3, and 13.1 shall survive such termination and
remain in full force and effect.
13.10. Captions
The
captions in this Agreement are inserted for convenience of reference only and
shall not be considered a part of or affect the construction or interpretation
of any provision of this Agreement.
13.11. Counterparts
This
Agreement may be signed in counterparts and each such counterpart will
constitute an original document and such counterparts, taken together, will
constitute one and the same instrument. Electronically transmitted or facsimile
copies shall be deemed to be originals.
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13.12. Enurement
This
Agreement will enure to the benefit of and will be binding upon the parties
and
their respective successors and any Affiliate of the Purchaser which is an
assignee of the Purchaser, and any other assignee consented to, as contemplated
in Section 13.6.
[Remainder
of page intentionally left blank]
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IN
WITNESS WHEREOF the parties have executed this Agreement as of the day and
year
first above written.
|
Best
Medical International, Inc.
|
)
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)
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)
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||
|
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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)
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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)
|
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Title:
General Counsel
|
)
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NOMOS
Corporation
|
)
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)
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||
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)
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||
|
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇
|
)
|
|
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Name:
▇▇▇▇ ▇. ▇▇▇▇
|
)
|
|
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Title:
President & CEO
|
)
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North
American Scientific, Inc.
|
)
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)
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||
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)
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||
|
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇
|
)
|
|
|
Name:
▇▇▇▇ ▇. ▇▇▇▇
|
)
|
|
|
Title:
President & CEO
|
)
|
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Schedule
A-Financial Statements
Schedule
B-Employees
Schedule
C-Excluded Assets
Schedule
D-Intellectual Property
Schedule
E-Leased Premises and Leases
Schedule
F-Permits
Schedule
G-Material Contracts
Schedule
H-Office Equipment
Schedule
I-Permitted Encumbrances
Schedule
J-Personal Property
Schedule
K-Customers and Suppliers
Schedule
L-Bank Facilities
Schedule
M-Litigation
Schedule
N-Existing Employment Contracts
Schedule
O-Benefit Plans
Schedule
P- Assumption Agreement
Schedule
Q-Computer Hardware
Schedule
R-Computer Software
Schedule
S-Manufacturing Equipment
Schedule
T-Vehicles
Schedule
U-Product Warranties
Schedule
V-Non-Competition Agreement
Schedule
1.1(v) - Disclosure Letter
Schedule
2.5(a)(i) - Warranty Agreements
Schedule
2.5(a)(ii) - Vendor Contracts
Schedule
2.5(a)(vii) - Certain Additional Assumed Liabilities
Schedule
2.5(b)(xiv) - Bonuses
Schedule
LR - Legal Requirements
Schedule
GA - Government Authorization
Schedule
3.2(l) - Non-Assignable Contracts
Schedule
3.3 - Jurisdictions in which Business is carried on
Schedule
3.6 - Insurance
Schedule
6.1(a)(vii) - Vendor’s Commission Plans
Schedule
8.1 - Employee Agreements
Schedule
W - Certain Assets: Accounts Receivable as at August 31, 2007, Prepaid
Expenses
and Stock
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