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ASSET PURCHASE AGREEMENT
BY AND AMONG
APACHE MEDICAL SYSTEMS, INC.
AND
COGNIZANT CORPORATION
AND
DUN & BRADSTREET HEALTHCARE INFORMATION, INC.
DATED AS OF DECEMBER 30, 1996
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT ("Agreement") dated as of December 30, 1996,
by and between APACHE Medical Systems, Inc., a Delaware corporation ("Buyer"),
Cognizant Corporation, a Delaware corporation ("Cognizant"), and Dun &
Bradstreet HealthCare Information, Inc., an Illinois corporation. ("Seller").
WHEREAS, Cognizant, through the Seller, owns and operates a business
line called Health Research Network (the "Business") in Chicago, Illinois,
which provides medical information relating to HIV/AIDS through its proprietary
database (the "HIV Insight Database"), proprietary software ("Clinical Practice
Analyst Software") and proprietary reports ("HIV Insight Report Library" and,
together with the HIV Insight Database and the Clinical Practice Analyst
Software, the "Proprietary Products");
WHEREAS, the parties desire to provide for the sale and transfer of
certain of the assets of the Business and other covenants and agreements in
exchange for cash upon the terms and subject to the conditions set forth
herein; and
WHEREAS, this Agreement sets forth the terms and conditions to which
the parties have agreed and further contemplates the execution and delivery of
certain collateral agreements hereinafter described.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, representations and warranties contained herein, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE
1.1. ASSETS SOLD AND PURCHASED. At the Closing on the Closing Date
(as such terms are hereinafter defined) Seller shall convey, sell, assign,
transfer and deliver to Buyer, free and clear of all liens, claims and
encumbrances except as are specifically assumed by Buyer hereunder, all right,
title and interest of Seller in and to the following assets of the Business,
except to the extent included in Excluded Assets (the "Purchased Assets"):
(a) All intellectual property (whether as owner,
inventor, employer of an inventor, licensor, licensee or otherwise),
including, without limitation, the Proprietary Products (subject to
the limitations in Schedule 1.1); the names "Health Research Network",
"HRN","HIV Insight" and "Clinical Practice Analyst"; the intellectual
property described on Schedule 4.13 hereto; patents or patent
applications; trademarks, service marks, trade dress, trade names,
corporate names or any registrations or applications to register any
of the foregoing; copyrights or copyright registrations; trade
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secrets or other proprietary rights or any licenses to or from
third parties with respect to any of the foregoing (including, without
limitation, all computer software, data and documentation and all
copies thereof) primarily relating to the Business as now conducted
(subject to the assets specifically referred to in Schedule 1.1);
(b) All computer equipment and furniture and fixtures
described on Schedule 1.1 hereto;
(c) All notes or accounts receivable due to Seller except
to the extent included in Schedule 1.2;
(d) All orders, contracts, commitments and proposals for
the sale of the products of the Business listed on Schedule 4.10
hereto, including, without limitation, leases, licenses, conditional
sale agreements, guarantees and confidentiality agreements;
(e) All permits, franchises, licenses, bonds, approvals,
qualifications and the like issued by any government or governmental
unit, agency, board, body or instrumentality, whether federal, state
or local and all applications therefor pertaining primarily to the
Business or the Purchased Assets, including, without limitation, the
intellectual property described on Schedule 4.13 hereto;
(f) All books and records primarily related to the
Business, including, without limitation, all records on finance,
operations, legal activities, customers, suppliers, sales and
promotional literature, advertising services, correspondence and
files;
(g) Any other assets identified on Schedule 1.1; and
(h) All causes of action, rights of action and claims
relating to the Purchased Assets of the Business against any other
person.
1.2. EXCLUDED ASSETS. Seller shall not sell to Buyer and Buyer
shall not purchase from Seller the following assets of the Business (the
"Excluded Assets"):
(a) All cash and cash equivalent items existing as of the
Closing Date;
(b) The lease of the real property used by Seller in the
operation of the Business located at Suite 300, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Lease"), any insurance policy and any
employment agreement;
(c) All personal property (whether owned, leased or
licensed) not specifically included in the Purchased Assets as
described in Section 1.1 above, including, without limitation,
computer equipment not described on Schedule 1.1, furniture, office
equipment (other than leased equipment) and vehicles;
(d) The corporate minute books and stock ledgers of
Seller;
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(e) All claims, rights and interests in and to any
refunds for federal, state or local franchise, income or other taxes
or fees of any nature whatsoever relating to the Assets, the Business
or the Seller for periods prior to the Closing Date;
(f) Any of the employee benefit agreements, plans or
arrangements maintained by Seller on behalf of persons employed in the
Business;
(g) Any right to use the name "The Dun & Bradstreet
Corporation", "Dun & Bradstreet", "Cognizant", "IMS", or any part or
variation of those names, including the names "Dun", "Bradstreet",
"D&B", "IMSIGHT", or any acronym. logo, name, trademark or tradestyle
associated with those names; and
(h) Any other asset identified on Schedule 1.2.
1.3. ASSUMED LIABILITIES. On the Closing Date, Buyer shall
assume and agree to pay, perform and discharge all of the liabilities and
obligations of Seller relating to the Business which exist as of the Closing or
which arise out of events occurring prior to the Closing (except to the extent
such obligations and liabilities constitute Excluded Liabilities, as
hereinafter defined) in accordance with their terms.
All of the foregoing liabilities to be assumed by Buyer
hereunder (excepting any Excluded Liabilities) are referred to herein as the
"Assumed Liabilities". Buyer will indemnify and hold harmless Seller against
any and all liabilities, losses, damages, deficiencies and expenses (including,
without limitation, the reasonable fees and expenses of counsel) resulting from
any and all of the Assumed Liabilities.
1.4. EXCLUDED LIABILITIES. Except as provided in Section 1.3
hereof, Buyer shall not assume, nor in any way become liable for, any
liabilities or obligations of Seller or of the Business, of any kind or nature,
whether accrued, absolute, contingent or otherwise, or whether due or to become
due, whether known or unknown. Specifically, but without limiting the
foregoing, Buyer shall not assume or be liable for the following debts,
liabilities and obligations (the "Excluded Liabilities"):
(a) Any liability of the Business relating to its
accounts payable (other than bonuses which are addressed below)
accrued prior to the Closing Date;
(b) To the extent accrued or relating to claims occurring
prior to the Closing Date and as more specifically provided for in
Section 6.1 any wages, vacation and other fringe benefits and all
costs and benefits provided under any pension, profit sharing,
savings, retirement, health, medical, life, disability, dental,
deferred compensation, stock option, bonus, except as provided in (h)
below, incentive, severance pay, group insurance or other similar
employee plans or arrangements, or under any policies, handbooks, or
custom or practice, or any employment arrangements, whether express or
implied, applicable to any of the employees of the Business (the
"Employee Plans");
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(c) As relating to any Purchased Asset, any liability or
obligation of Seller arising out of unlawful violation or infringement
of any intellectual property right, or breach of confidentiality of
patient data, of any person or entity occurring on or prior to the
Closing Date (excluding, however, any liability or obligation arising
out of any claim by the Center for Disease Control ("CDC"), physicians
who have provided data ("Physicians"), or patients whose data is in
the HIV Insight Database ("Patients") regarding ownership of the HIV
Insight Database or any data included therein which liability and
obligation shall be assumed by the Buyer);
(d) Any liability relating to any tax which may be
imposed on Seller or assessable with respect to the Business for
periods prior to Closing;
(e) Any other liability or obligation identified as
excluded on Schedule 1.4;
(f) Any costs and expenses incurred by Seller incident to
its negotiation and preparation of this Agreement and its performance
and compliance with the agreements and conditions contained herein;
(g) Any liabilities relating to the Excluded Assets; and
(h) Liabilities for the bonus payable to ▇▇▇▇▇ ▇▇▇▇▇▇▇
upon consummation of the sale hereunder in excess of $35,000 in the
aggregate (i.e., Buyer shall assume up to $35,000 of such bonus).
ARTICLE II.
PURCHASE PRICE; ALLOCATION
2.1. CONSIDERATION PAYABLE AT THE CLOSING. In reliance on the
representations and warranties of Seller and Cognizant contained herein, and
on the terms and subject to the conditions of this Agreement, Buyer, in
consideration for the transfer and delivery to it of the Purchased Assets, the
Seller's payment of rent on the Leased Space (as hereinafter defined) and the
non-competition and confidentiality provisions, as provided herein, will, in
addition to the assumption of the Assumed Liabilities set forth in Section 1.3
above, provide consideration to Seller at Closing of $1,565,000 in cash,
payable by wire transfer of funds, (the "Purchase Price").
2.2. ALLOCATION OF PURCHASE PRICE. Cognizant and Buyer agree to
allocate the Purchase Price in accordance with the rules under Section 1060 of
the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury
Regulations promulgated thereunder. Cognizant and Buyer shall, in good faith,
seek to reach agreement on such allocation by January
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24, 1997 (provided that Buyer agrees to provide to Seller by January 16, 1997,
a proposed allocation). If Cognizant and the Buyer are unable to reach
agreement, Cognizant and Buyer, at their shared expense, shall retain an
independent nationally recognized big six accounting firm to settle any dispute
between Cognizant and Buyer regarding the allocations prior to the date upon
which either party is required to file any 1060 Forms (as defined below).
Cognizant and Buyer agree to act in accordance with the computations and
allocations contained in the allocation in any relevant tax returns or filings
(including any forms or reports required to be filed pursuant to Section 1060
of the Code, the Treasury Regulations promulgated thereunder or any provisions
of local and state law ("1060 Forms") and to cooperate in the preparation of
any 1060 Forms and to file such 1060 Forms in the manner required by applicable
law.
ARTICLE III.
CLOSING
3.1. CLOSING. Subject to the terms and conditions of this
Agreement, consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇, on
December 30, 1996 (the "Closing Date"), or at such other time, date and place
as the parties shall mutually agree. In the event of any postponement thereof,
all references in this Agreement to the Closing Date shall be deemed to refer
to the time and to the date to which the Closing Date shall have been so
postponed.
3.2. METHOD OF PAYMENT ASSUMPTION AGREEMENT. Buyer shall make the
cash payment to Seller at Closing by delivery of a bank wire transfer of
immediately available funds to a bank account designated by Cognizant prior to
Closing. Buyer shall deliver to Cognizant an undertaking and assumption, in
form reasonably satisfactory to Cognizant's counsel, pursuant to which the
Buyer will assume and agree to discharge the Assumed Liabilities.
3.3. INSTRUMENTS OF CONVEYANCE AND TRANSFER. At the Closing,
Seller shall deliver to Buyer such bills of sale, endorsements, assignments and
other good and sufficient instruments of transfer, conveyance and assignment,
in form reasonably satisfactory to Buyer's counsel as shall be effective to
vest in Buyer good and marketable title to the Purchased Assets, free and clear
of all liens, claims and encumbrances. Seller shall take all such steps as may
be required to put Buyer in actual possession and control of the Purchased
Assets and the Business as of the Closing.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF COGNIZANT AND SELLER
Cognizant and Seller hereby represent and warrant as follows:
4.1. ORGANIZATION; GOOD STANDING; QUALIFICATION; STATUS OF HRN.
Each of Cognizant and Seller are duly organized and validly existing in good
standing under the laws of the State of Delaware and Illinois respectively.
Each of Cognizant and Seller has full power and authority to conduct its
business as it is now being conducted and is duly qualified to do business
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in each jurisdiction in which the nature of property owned or leased, or the
nature of the business conducted by it requires such qualification. HRN is a
division of Seller and does not constitute a separate legal entity.
4.2. AUTHORIZATION; VALID AND BINDING NATURE. Each of Cognizant
and Seller has full power and authority to execute, deliver and perform this
Agreement and all other agreements and transactions contemplated herein and has
taken all corporate actions required by law and its charter or bylaws to
authorize the execution and delivery of this Agreement and all other agreements
and transactions contemplated herein and to consummate the transactions
contemplated hereby and thereby. This Agreement and all other documents and
agreements contemplated herein constitute the valid and binding agreements of
each of Cognizant and Seller enforceable in accordance with their terms except
as limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, subject to the limitations imposed by general
equitable principles (regardless of whether such enforceability is considered
in a proceeding at law or in equity).
4.3. NO VIOLATION. The execution and delivery of this Agreement
and all other documents and agreements contemplated herein and the consummation
of the transactions contemplated hereby and thereby will not violate any
provision of, or result in the breach of, or accelerate or permit the
acceleration of any obligation relating to the Business or the Purchased
Assets, or result in the creation of any lien, claim or encumbrance thereon,
under
(i)any applicable law, rule or regulation of any governmental body
having jurisdiction,
(ii)Cognizant or Seller's charter or bylaws,
(iii)any agreement to which Cognizant or Seller is a party or by which
it may be bound, or
(iv)any order, judgment, or decree applicable to it.
Except in the cases of clauses (i),(iii) and (iv), to the extent any
such events would not, individually or in the aggregate, reasonably be expected
to have material adverse effect on the business, properties or financial
condition of the Business, taken as a whole ("Material Adverse Effect") and
except to the extent the consent of a third party is required to assign such
agreement where the required consent has been disclosed to Buyer in writing.
4.4. TITLE AND CONDITION OF ASSETS. Seller has good and marketable
title to the Purchased Assets, free and clear of all liens, claims or
encumbrances of any nature except for liens, claims and encumbrances disclosed
on Schedule 4.4. At the Closing, Seller shall deliver the Purchased Assets to
Buyer free and clear of all liens, claims and encumbrances except as expressly
agreed to by Buyer.
4.5. FINANCIAL STATEMENTS. The balance sheet, income statement,
and the attachments thereto relating to the Business for fiscal years 1994 and
1995 and a balance sheet for September
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30, 1996, which are attached as Schedule 4.5 and made a part hereof
(collectively, the "Financial Information"):
(a) are derived from the books of account and records of
the Business; and
(b) fairly present, in all material respects, the
financial condition and the results of operations of the Business at
and for the period specified therein.
4.6. ABSENCE OF CERTAIN CHANGES. Except as disclosed in Schedule
4.6, since September 30, 1996, there has not been, at any time, any:
(a) transaction by Cognizant or Seller relating to the
Business, including, without limitation, the amendment or termination
of any contract, agreement or license material to the conduct of the
Business, except in the ordinary course of the Business;
(b) sale, assignment, transfer or abandonment of any
patent, trademark, trade name, copyright, license or other intangible
asset; nor any sale, assignment, transfer or abandonment of any other
asset other than in the ordinary course of the Business for fair
value;
(c) damage, destruction or loss, whether or not covered
by insurance, which materially and adversely affects the assets or
business of the Business; or
(d) a Material, Adverse Effect nor has the Seller made
any distribution in kind of any assets of the Business other than
Excluded Assets.
4.7. TAX MATTERS. All federal, state, local and foreign tax
returns and reports with respect to Cognizant, Seller or the Business required
by law to be filed have been duly filed (except those under valid extension),
and all federal, state, local, foreign and any other taxes, assessments, fees
and other governmental charges with respect to the employees, properties,
assets, income or franchises of Cognizant, Seller or the Business, shown on
such returns and reports to be due and payable, or which are otherwise due and
payable, have been paid (unless being contested in good faith).
4.8. RIGHTS OF THIRD PARTIES. Other than as disclosed on Schedule
4.8, Cognizant and Seller have not entered into any leases, licenses or other
agreements, recorded or unrecorded, granting rights to third parties in any
personal property of the Business, and no person or entity has, to the
knowledge of Cognizant and Seller, asserted or threatened to assert any right
to possession of any of the property of the Business.
4.9. FORMS. The forms of all contracts executed in consideration
for services and/or products provided or to be provided by the Business are in
compliance in all material respects with all federal, state and local laws,
orders and regulations.
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4.10. CONTRACTS. Set forth on Schedule 4.10 are all written
contracts, agreements, commitments or understandings of Seller relating to the
Business which provide for annual expenditures or revenues by the Seller of
more than $5,000 (excluding the Lease and Physician Site Contracts (as defined
below) third-party software license and maintenance agreements and the
distribution agreement with IMS) (collectively, "Material Contracts"). Each
Material Contract which requires the consent of any party to its assignment in
connection with the transactions contemplated hereby is appropriately
identified as such. Seller is not a party to any executory Material Contract
relating to the Business in which any of the parties thereto is in breach or
default. All such Material Contracts are valid, legally binding and
enforceable.
4.11 INTENTIONALLY BLANK.
4.12. CUSTOMERS. To the knowledge of Cognizant and Seller, the
Seller has overall good relations with its customers and neither Cognizant nor
Seller has reason to believe that such relations will in the foreseeable future
deteriorate or suffer any changes which would be reasonably be expected to have
a Material Adverse Effect.
4.13. PROPRIETARY RIGHTS. Except as set forth on Schedule 4.13 and
the Excluded Assets, there are no patents or patent applications; registered
trademarks, service marks, trade dress, trade names, corporate names or any
applications to register any of the foregoing; copyrights or copyright
registrations; computer software, or trade secrets or any licenses to or from
third parties with respect to the foregoing (including, without limitation, the
Proprietary Assets and all other computer software, data and documentation and
all copies thereof) relating to the Business as now conducted. Except as
indicated on Schedule 4.13, and other than any claims by the CDC, Patients, or
Physicians, in or to the HIV Insight Database or any data included therein,
Seller owns and possesses all right, title and interest in and to the
proprietary rights set forth therein or has licenses from third parties with
respect thereto. Except as set forth on Schedule 4.13, Cognizant and Seller
have not received nor, to the knowledge of Seller, been threatened with any
notices of infringement or misappropriation from any third party with respect
to the proprietary rights which are listed thereon. To the knowledge of
Seller, it has not infringed nor is it currently infringing on the proprietary
rights of any person.
4.14. PHYSICIAN SITE CONTRACTS. An accurate and complete list of
the existing contracts between Seller and physician sites is attached as
Schedule 4.14 (the "Physician Site Contracts"). Any Untransferred Physician
Site Contracts as of the date hereof (as hereinafter defined in Section 6.3)
are indicated on such Schedule. All Physician Site Contracts are included in
the Purchased Assets as described in Section 1.1 hereof.
4.15. HIV INSIGHT DATABASE. To Cognizant and Seller's knowledge,
the information and data provided to Buyer under the terms hereof is, in all
material respects, the complete and accurate information and data currently
utilized by Cognizant and Seller in connection with the HIV Insight Database
and the operation of the Business (the "Data"). The Data purchased by Buyer
hereunder includes the entire HIV Insight Database. An accurate and complete
description of the HIV Insight Database is attached as Schedule 4.15.
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4.16. THIRD PARTY SOFTWARE. An accurate and complete list of all
third party software necessary to run the Clinical Practice Analyst Software is
attached as Schedule 4.16 (the "Third Party Software"). All Third Party
Software and respective licenses are included in the Purchased Assets as
described in Section 1.1 hereof.
4.17. PURCHASED ASSETS NOT IN PUBLIC DOMAIN. To Seller's and
Cognizant's knowledge, except as described in Schedule 4.17, the data in the
HIV Insight Database and the Clinical Practice Analyst have not entered the
public domain.
4.18 INTENTIONALLY BLANK
4.19. DEFAULT. Cognizant and Seller are not in default under, nor
has any event occurred which, with the lapse of time or action by a third
party, would constitute in a default under
(i) any outstanding note, indenture, mortgage, contract or agreement
relating to the Business by which it is bound, or
(ii)under any provision of the charter or bylaws of Seller except for
breaches in the case of clause (i) which individually or in the aggregate would
not reasonably be expected to have a Material Adverse Effect. Subject to
obtaining the consents of third parties, where such required consents have been
disclosed to Buyer in writing, the execution and performance of this Agreement
and the transactions contemplated hereby will not violate any provision of or
result in the breach of, modification of, acceleration of, or constitute a
default under the charter or bylaws of Cognizant and Seller, any law, order,
writ, injunction or decree of any court, governmental agency or arbitration
tribunal or any contract, note, mortgage, security agreement, agreement or
instrument affecting the Purchased Assets.
4.20. LITIGATION. No action or proceeding before any court or
governmental body is pending or, to the knowledge of Cognizant or Seller,
threatened against Cognizant, Seller or the Business wherein a judgment, decree
or order would resonably expected to have a Material Adverse Effect or would
prevent the carrying out of this Agreement, declare unlawful the transactions
contemplated hereby, cause such transactions to be rescinded, or require
Cognizant, Seller or Buyer to divest itself of any of the Purchased Assets.
4.21. COURT ORDERS AND DECREES. There is no outstanding or, to
Cognizant or the Seller's knowledge, threatened order, writ, injunction or
decree of material nature of any court, governmental agency or arbitration
tribunal against or affecting the Business, the Purchased Assets or this
transaction.
4.22. LEGAL AND REGULATORY COMPLIANCE. Other than an audit required
by the Center for Disease Control, with respect to the Business and the
Purchased Assets, Seller is in compliance with all applicable laws, regulations
and administrative orders of the United States or any state, county,
municipality or of any subdivision thereof to which the Business or the
Purchased Assets may be subject except where the failure to be in compliance
would not reasonably be expected to have a Material Adverse Effect.
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4.23. LICENSES AND CONTINUATION OF BUSINESS. Seller has and is in
possession of all licenses, permits, consents, approvals and authorizations
under all applicable laws, regulations, rules and ordinances as may be
necessary, appropriate or convenient to enable Seller to own and operate the
Business and to continue to conduct the Business under the name now being used
except where the failure to possess such a license, permit, consent, approval
or authorization would not reasonably be expected to have a Material Adverse
Effect.
4.24. LIABILITIES. To the knowledge of Cognizant of Seller other
than as disclosed herein (including the Schedules hereto) there are no
liabilities of the Business that are required pursuant to FASB Statement No. 5
(Accounting for Contingencies) to be included in the financial statements of
the Business or a footnote thereto.
4.25 LIABILITIES Other than (i) as disclosed herein (including the
Schedules hereto), (ii) liabilities or obligations arising in the ordinary
course of business since September 30, 1996, and (iii) liabilities or
obligations arising under contracts and agreements entered into by the Seller
in the ordinary course of business, there are no liabilities of the business of
any kind arising from events occurring on or prior to the Closing Date or
existing on or prior to the Closing Date.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
5.1. ORGANIZATION; GOOD STANDING. Buyer is duly organized and
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to conduct its business as it is now
being conducted.
5.2. AUTHORIZATION; VALID AND BINDING NATURE. Buyer has full power
and authority to execute, deliver and perform this Agreement and all other
agreements and transactions contemplated herein and has taken all actions
required by law, its charter or bylaws or otherwise, to authorize the execution
and delivery of this Agreement and all other agreements and transactions
contemplated herein and to consummate the transactions contemplated hereby and
thereby. This Agreement and all other documents and agreements contemplated
herein constitute the valid and binding agreements of Buyer, enforceable in
accordance with their terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally, subject to the
limitations imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
5.3. LITIGATION. No action or proceeding before any court or
governmental body is pending or, to the knowledge of Buyer, threatened against
Buyer wherein a judgment, decree or order would prevent the carrying out of
this Agreement, declare unlawful the transactions contemplated hereby or cause
such transactions to be rescinded.
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ARTICLE VI.
COVENANTS
6.1. NON-COMPETITION.
(a) Other than as agreed by APACHE in writing and other
than pursuant to the IMS marketing agreement, for a period ending the
earlier of (i) two years from the Closing and (ii) the termination or
nonrenewal by APACHE of the IMS marketing agreement (the "Non-Compete
Period"), Cognizant shall not, and Cognizant shall procure that each
corporation, partnership or other entity in which Cognizant owns,
directly or indirectly through one or more intermediaries, shares of
stock or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity ("Cognizant Entity"), shall not, develop or market
products which are derived from a data source providing solely
longitudinal HIV/AIDS clinical patient data collected within the
United States ("Competitive Products").
(b) Notwithstanding (a) above, nothing herein shall
prohibit Cognizant or any Cognizant Entity from acquiring any Person
(an "Acquired Person") which conducts a business which develops or
markets a Competitive Product (a "Competitive Business") provided that
such Acquired Person derived less than 33% of its revenue from the
Competing Business during the 12 month period immediately prior to the
acquisition thereof and nothing herein shall prohibit such Acquired
Person from continuing to engage in the Competitive Business.
(c) If a court of competent jurisdiction finally
holds that the time, territory or any other provision set forth in
this Section constitutes an unreasonable restriction, such provision
shall not be rendered void, but shall apply as to such time, territory
or to such other extent as such court may determine constitutes a
reasonable restriction. Cognizant acknowledges that the restrictions
set forth in this Section 6.1 are reasonable and necessary to protect
the legitimate interests of Buyer and that any breach of the terms,
conditions or covenants set forth herein (a) may be competitively
unfair and may cause irreparable damage to the Buyer because of the
special, unique, unusual and extraordinary character of the Business
and the Buyer's recovery of damages at law may not be an adequate
remedy. Accordingly, Cognizant agrees that for any breach of the
terms, covenants or agreements set forth in this Section 6.1, a
restraining order or injunction or both may be issued against
Cognizant, in addition to any other rights or remedies the Buyer may
have. Cognizant acknowledges that Buyer shall be entitled to an
equitable accounting of all earnings, profits or other benefits
arising from such breach and shall be entitled to receive such other
damages, direct or consequential, as may be appropriate.
(d) During the Non-Compete Period, Cognizant will not
solicit to employ any employee of the Business, as of December 1,
1996, so long as they are employed by the
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Buyer. Nothing herein shall prohibit Cognizant from any
advertisement or general solicitation (or any hiring pursuant
thereto).
6.2. CONFIDENTIALITY. Cognizant and Seller shall not use for its
own benefit or divulge or convey to any third party the terms of the IMS
Agreement while such agreement is in effect, the terms of the CDC Cooperative
Agreement, the HIV Insight Database, the Clinical Practice Analyst software,
the list of physicians who have entered into the Physician Site Contracts.
Information which enters the public domain or is publicly available loses its
confidential status hereunder so long as Seller directly or indirectly has not
caused such information to enter the public domain. Seller agrees to deliver
to Buyer as soon as practicable after the Closing all copies of the HIV Insight
Database, the Clinical Practice Analyst Software (to the extent not installed
in a Physician Site) and the list of physicians who have entered into the
Physician Site Contracts which Cognizant or Seller may then possess or have
under its control.
6.3. PHYSICIAN SITE CONTRACTS. Subsequent to the Closing Date,
Seller will act as Buyer's agent to secure for Buyer the benefit of any
Physician Site Contracts which have not been assigned to Buyer or replaced by a
similar contract between Buyer and the physician site formerly a party to such
Physician Site Contract (the "Untransferred Physician Site Contracts"). Seller
agrees to use good faith and reasonable commercial efforts (which shall not
require the expenditure of funds) to cause an assignment to Buyer of any
Untransferred Physician Site Contracts or the other part thereto, to enter into
a replacement contract between Buyer and each physician site which is a party
to an Untransferred Physician Site Contract.
6.4. RENT DUE UNDER LEASE OF REAL PROPERTY. Subject to the terms of
the Use and Occupancy Agreement (as defined below), Seller agrees to make rent
payments on behalf of Buyer, including all pass-through expenses (on a triple
net basis) on the leased real property located at Suite 300, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Leased Space") through December 31, 1997.
Notwithstanding the foregoing, Seller may, upon 60 days written notice, request
that Buyer relocate, provided that in such event Seller is obligated to pay
Buyer the reasonable costs of relocation and the lesser of (a) $5,000 per
month, or (b) the actual monthly rent due on the new space, including all
pass-through expenses (on a triple net basis) charged to Seller through
December 31, 1997. Seller will use reasonable commercial efforts (which shall
not require the expenditure of funds) to obtain any and all consents required
by the lessor of the Leased Space to allow Buyer to occupy such space and to
operate the Business thereon through December 31, 1997. Seller is not
obligated to make the payments described in this paragraph relating to space
occupied by Buyer outside of the Chicago metropolitan area if prior to December
31, 1997 Buyer relocates the Business to a site outside of the Chicago
metropolitan area.
6.5. USE OF "HEALTH RESEARCH NETWORK" AND "HRN". Each of Cognizant
and Seller agrees not to use, in any manner, the names "Health Research
Network", "HRN", "HIV Manager", "HIV Insight", or "Clinical Practice Analyst"
or any similar name. Notwithstanding
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the foregoing, nothing herein shall affect Cognizant's right to use the name
"IMSIGHT" in connection with any product or service.
6.6. CONSENTS AND APPROVALS. In addition to its obligations
pursuant to Section 6.3 above, Seller agrees to use good faith and reasonable
commercial efforts to cause an assignment to Buyer of the CDC Cooperative
Agreement. Buyer, Cognizant and Seller shall each use reasonable commercial
efforts (which shall not require the expenditure of funds) to obtain all other
consents, approvals, amendments and agreements required in order to duly and
validly carry out the transactions contemplated by this Agreement and to
satisfy the conditions precedent herein and to do all other things necessary in
order to make effective the transactions contemplated herein. Each party
agrees to cooperate with the other in their respective efforts with respect to
this Section 6.6.
6.7. EMPLOYEE PLANS. Seller shall remain obligated to pay
and shall pay all wages, salaries, benefits and/or the monetary equivalent of
benefits, including but not limited to the employer portion of FICA payments,
vacation pay, severance pay, bonuses, commissions, pensions, personal leave pay
and sick leave, accrued by employees of the Business to which they are entitled
by law, rule or regulation or under the employment practices, policies or
procedures of the Business. Seller shall also remain responsible for the
payment of all health insurance, pension, worker's compensation, unemployment
compensation and disability claims which relate to periods of employment with
the Business, as well as all payments under Employee Plans related to the
Business, relating to the service of employees of the Business.
6.8. FURTHER ASSURANCES. Cognizant and Seller hereby covenants and
agrees that from time to time at the request of Buyer, and without further
consideration, to execute and deliver such additional instruments and to take
such other action as Buyer reasonably may require to convey, assign, transfer
and deliver the Purchased Assets of the Business and to otherwise to carry out
the terms of the Agreement Notwithstanding anything to the contrary set forth
in this Agreement, to the extent that any consent or approval required for
assignment of agreements is not obtained with respect to any contract, lease,
license or agreement as contemplated above, this Agreement shall not constitute
an assignment or an attempted assignment thereof In each such case, Cognizant
agrees to cooperate with Buyer in any reasonable arrangement designed to (i)
provide for Buyer the benefits under any such contract, lease, license or
agreement, including enforcement at the cost and for the account of Buyer of
any and all rights of Seller against the other party or otherwise and (ii)
insure performance by Buyer of Cognizant and Seller's obligations thereunder to
the extent Buyer receives such benefits. Until the CDC Cooperative Agreement
is transferred to Buyer, Cognizant and Seller shall cooperate with Buyer to
maintain the CDC Cooperative Agreement for the benefit of the Buyer. Buyer
shall perform the obligations of the CDC Cooperative Agreement and Cognizant
and Seller shall forward all funding under the CDC Cooperative Agreement to
Buyer.
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6.9 REVENUE RECOGNITION POLICY. Seller shall and Cognizant will
cause Seller to continue its normal revenue recognition policy (i.e., revenue
is not recognized until delivery of reports to IMS).
6.10 FINANCIAL RECORDS AND INFORMATION.
After the Closing, upon reasonable written notice, the Buyer, on the one hand,
and the Seller and Cognizant, on the other hand, shall furnish or cause to be
furnished to each other and their employees, counsel, auditors and
representatives access, during normal business hours, such information and
assistance relating to the Business as is reasonably necessary for financial
reporting and accounting matters, government audits, the preparation and filing
of any tax returns, or the defense of any tax claim or assessment or filings
made with other government entities. Each party shall reimburse the other
party for reasonable out-of-pocket costs and expenses incurred in assisting the
other pursuant to this Section 6.10 promptly upon receipt of statements
therefor. Neither party shall be required by this Section 6.10 to take any
action that would unreasonably interfere with the conduct of its business or
unreasonable disrupt its normal operations.
6.11 BENEFIT PLANs
a) Buyer shall make offers of employment to all employees of the Seller
primarily engaged in the Business listed upon Schedule 6.11 on the same terms
(including salary, job responsibility and location) as immediately prior to
Closing. Those employees who accept Buyer's offer of employment shall be
"Transferred Employees"("TE"). Effective as of the Closing Date, all
Transferred Employees shall cease participation in all Cognizant Benefit Plans.
(b) No assets and liabilities shall be transferred in respect of
employees of the Seller primarily involved in the Business who participate in
the Master Retirement Plan of the Dun & Bradstreet Corporation (or successor
Cognizant plan), and benefits accrued under such plan shall be in accordance
with the terms of such plans.
(c) The Buyer shall cause each TE to be given credit for all
service prior to the Closing Date with Cognizant, the Seller(and The Dun &
Bradstreet Corporation) and their affiliates (to the extent taken into account
under similar plans, programs and arrangements in effect immediately prior to
the Closing Date) under each type of employee benefit plan (including, without
limitation, any severance plan), program and arrangement maintained for his or
her benefit on or after the Closing Date.
(d) Cognizant and Seller shall retain responsibility for and
continue to pay all medical, life insurance, disability and other welfare plan
expenses and benefits for each TE with respect to claims incurred by such
employees or their covered dependents prior to the Closing Date. For purposes
of this paragraph, a medical claim shall be deemed incurred when the services
that are the subject of such claim are performed. Claims incurred by any TE
under any applicable workers' compensation legislation shall if incurred prior
to the Closing Date, be the sole responsibility and liability of Cognizant and
the Seller. Seller and Cognizant shall be responsible for all legally mandated
continuation of health care coverage for any former TE and
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their covered dependents who participated in a plan maintained by HRN or the
Seller and who had or have a loss of health care coverage due to a qualifying
event occurring prior to Closing Date. Legally mandated health care coverage to
which a former TE is entitled as a result of a qualifying event occurring on or
after the Closing Date shall be the responsibility of the Buyer.
(i) As of the later of the Closing Date or the date on which the
Cognizant Savings Plan (the "Cognizant 401(k) Plan") receives a transfer of
assets and liabilities in respect of the TE, (the "Transfer Date"), Cognizant
shall (A) cause the trustee of the Cognizant 401(k) Plan to segregate, in
accordance with the spin-off provisions set forth under Section 414(l) of the
Code, the assets of the Cognizant 401(k) Plan representing the full account
balances of TEs who participate therein ("Participants") for all periods of
participation through the Closing Date (including, as applicable, all employee
and employer contributions attributable thereto); (B) make all required filings
and submissions to appropriate Governmental Entities; and (C) make all required
amendments to the D&B 401(k) Plan and related trust agreement necessary to
provide for such segregation and the distribution or transfer of assets
described in this Section 6.10. The Cognizant 401(k) Plan shall be amended to
provide that contributions thereto with respect to the Participants for periods
after the Closing Date shall cease as of the Closing Date. Prior to the
Transfer Date, the Buyer shall give Cognizant written notice of the name of the
trustee of a qualified 401(k) plan (the "Buyer 401(k) Plan") it designates to
receive a transfer of assets and liabilities from the Cognizant 401(k) Plan
accompanied by a copy of the most recent favorable determination letter for
such plan received by the Buyer and (y) make all required filings and
submissions to appropriate governmental entities.
(ii) To the extent permitted under the applicable plan, prior to the
Closing Date, each Participant shall be offered an election (the "Cognizant
401(k) Election") to (A) receive a distribution of such Participant's account
balance (or cause the trustee of the Cognizant 401(k) Plan to make a direct
rollover to an eligible retirement plan (as defined in Code Section 402(c)(8))
trustee or custodian designated by the Participant pursuant to the terms of the
Cognizant 401(k) Plan); (B) direct the trustee of the Cognizant 401(k) Plan to
transfer assets and liabilities equal to such account balance to the Buyer
401(k) Plan if Participant is a full time employee of APACHE; or (C) cause his
or her account balance to remain in the Cognizant 401(k) Plan. If the
Participant elects to have his or her account balance distributed or rolled
over, such account balance shall be distributed or rolled over after the
Transfer Date, in accordance with the terms of the Cognizant 401(k) Plan. As
soon as practicable after the Transfer date, Cognizant shall cause the trustee
of the Cognizant 401(k) Plan to transfer in cash, in notes held by the
Cognizant 401(k) Plan in respect of participant loans, or in the form of
guaranteed insurance contracts, the full account balance of each participant
who has elected to cause the trustee to transfer his or her account balance to
the Buyer 401(k) Plan (the "Transfer Participants") which account balance
shall have been credited with appropriate earnings or losses, if any,
attributable to the period ending on the close of business of the last day of
the month preceding the Transfer Date, reduced by any benefit or withdrawal
payments in respect of the Transfer Participant prior to the Transfer Date, to
the trustee of the Buyer 401(k) Plan. In consideration of the transfer of
assets hereunder, the Buyer shall cause the trustee of the Buyer 401(k) Plan
to assume the corresponding liabilities for benefits of the Transfer
Participant for whom assets were transferred. For a Participant who elects to
cause his or her account balance to
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remain with the Cognizant 401(k) Plan, such balance shall remain in such plan
subject to the terms thereof. Each of the parties hereto shall pay its own
expenses in connection with any transfer of assets and liabilities hereunder.
(iii)Cognizant retains the right to modify the terms of the Cognizant
401(k) Election described in Section 6.11(g)(ii) for Participants whose account
balances are $3500 or less.
(e) With respect to any welfare benefit plans maintained for the
benefit of TE's on and after the Closing Date, the Buyer shall cause there to
be waived any pre-existing condition limitations.
(f) Buyer shall immediately following the Closing, pay the bonus
referred to in Section 1.4(h) as being assumed by Buyer.
6.12 PUBLICITY. Prior to the Closing and for a period of six (6)
months following the Closing, each party shall consult with and obtain the
consent of the other before issuing any press release or making any other
public disclosure concerning this Agreement or the transactions contemplated by
the Agreement, unless, in the reasonable judgment of counsel to the party
issuing the release or making the disclosure, the release or disclosure is
required to discharge its disclosure obligations (in which case it shall
consult with the other party before issuing the release or making the
disclosure) under applicable law or the rules of any national securities
exchanges on which such party's securities are listed.
ARTICLE VII.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF COGNIZANT AND SELLER
All obligations of Cognizant and Seller under this Agreement are
subject to the performance, at or prior to Closing, of the following
conditions, unless expressly waived in writing by Cognizant and Seller at or
prior to Closing:
7.1. REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties made by Buyer in this Agreement or in any related Schedule,
Exhibit, certificate or document shall be true in all material respects as of
the date of this Agreement and on the Closing Date except that those
representations and warranties which are made as of a specific date shall be
true only as of such date
7.2. COMPLIANCE WITH THIS AGREEMENT. Buyer shall have performed
and complied in all material respects with all agreements and conditions
required by this Agreement to be performed or complied with by it to the extent
required hereunder on the Closing Date.
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7.3. CLOSING CERTIFICATE. Seller shall have received a certificate
from Buyer dated the Closing Date, certifying that the conditions specified in
Sections 7.1 and 7.2 hereof have been fulfilled.
7.4. NO LITIGATION. On the Closing Date, no suit, action or other
proceeding, or injunction or final judgment relating thereto, shall be pending
before any court or governmental or regulatory official, body or authority in
which it is sought to restrain or prohibit or to obtain damages or other relief
in connection with this Agreement or the consummation of the transactions
contemplated hereby.
7.5. CONSENTS AND APPROVALS. All material consents, approvals,
amendments and agreements required of Buyer to duly and validly carry out the
transactions contemplated by this Agreement shall have been obtained.
7.6. INSTRUMENTS OF TRANSFER, ETC. Buyer shall have duly executed
and delivered to Seller all closing documents, instruments and certificates,
including an undertaking, and assumption agreement, as shall have been
reasonably and customarily requested.
7.7 USE AND OCCUPANCY AGREEMENT. Buyer shall have executed a Use
and Occupancy Agreement substantially in the form attached hereto (the "Use and
Occupancy Agreement").
7.8 IMS AGREEMENT. Buyer shall have entered into the Marketing
Agreement (as defined under Section 8.6) with IMS on mutually acceptable terms
for the sale by IMS of HIV Insight products through December 31, 1997.
ARTICLE VIII.
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
All obligations of Buyer under this Agreement are subject to the
performance, at or prior to Closing, of the following conditions, unless
expressly waived in writing by Buyer at or prior to Closing:
8.1. REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties made by Cognizant in this Agreement or in any related Schedule,
Exhibit, certificate or document shall be true as of the date of this
Agreement and on the Closing Date except that those representations and
warranties which are made as of a specific date shall be true in all material
respects only as of such date and those representations and warranties that are
qualified by materiality shall be true.
8.2. COMPLIANCE WITH THIS AGREEMENT. Each of Cognizant and Seller
shall have performed and complied in all material respects with all agreements
and conditions required by this Agreement to be performed or complied with by
it to the extent required hereunder on the Closing Date.
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8.3. CLOSING CERTIFICATE. Buyer shall have received a certificate
from Seller dated the Closing Date, certifying in such detail as Buyer may
reasonably request that the conditions specified in Sections 8.1 and 8.2 and
8.8 hereof have been fulfilled.
8.4. PHYSICIAN SITE CONTRACTS. At least twelve (12) of the
Physician Site Contracts, including at least six (6) HOPS sites, shall have
been assigned to Buyer or shall have been replaced with a similar contract
between Buyer and the physician site formerly a party to such Physician Site
Contract.
8.5. THIRD PARTY SOFTWARE CONTRACTS. All Third Party Software
Contracts and or Licenses as described in Section 4.16, shall have been
assigned to Buyer (subject to Buyer's, Agreement to be bound by the terms
thereof).
8.6. IMS AGREEMENT. IMS shall have entered into a written
agreement (the "Marketing Agreement") with Buyer on mutually acceptable terms
for the sale by IMS of Buyer's HIV Insight products for the period through
December 31, 1997.
8.7. NO THREATENED OR PENDING LITIGATION. On the Closing Date, no
suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened or pending before any court or governmental or
regulatory official, body or authority in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with this Agreement
or the consummation of the transactions contemplated hereby.
8.8. CONSENTS AND APPROVALS. All material consents, approvals,
amendments and agreements required of Seller to duly and validly carry out the
transactions contemplated by this Agreement shall have been obtained (excluding
consents to assign any Physician Site Contracts which are addressed by Section
8.4) provided that the consent of the landlord to the Use and Occupy Agreement
(and Buyer's occupancy thereunder) and the consent of the Center for Disease
Control for the assignment of contracts with it shall not be conditions to
Buyer's obligations hereunder.
8.9. INSTRUMENTS OF TRANSFER, ETC. Seller shall have duly executed
and delivered to Buyer all documents and instruments necessary or desirable to
transfer the Purchased Assets to Buyer and such other closing documents,
instruments and certificates as shall have been reasonably and customarily
requested.
8.10. USE AND OCCUPANCY AGREEMENT. The Seller shall have executed a
Use and Occupancy Agreement substantially in the form attached hereto.
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ARTICLE IX.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION
9.1. NATURE OF REPRESENTATIONS. The contents of all schedules and
the certificates delivered or executed pursuant to this Agreement shall, in
addition to the representations and warranties contained in this Agreement, be
deemed representations and warranties by Cognizant, Seller or Buyer.
9.2. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants of the parties contained in this
Agreement or made in connection with this transaction shall survive the
Closing, where practicable, and any investigation by the parties with respect
thereto. However, a party shall have no liability under this Agreement (other
than under those provisions of this Agreement requiring performance of an
obligation after the Closing) for breach of warranty or agreement, or
misrepresentation, unless a claim therefor is asserted by the other party in a
written notice delivered prior to the second anniversary following the Closing.
Any notice of such claim shall set forth with particularity the
representations, warranties, and agreements with respect to which the claim is
made, the facts giving rise to and the alleged basis for the claim and the
amount of liability asserted by reason of the claim.
9.3. INDEMNIFICATION OF BUYER. Cognizant and Seller shall
indemnify, defend and hold Buyer harmless from and against any and all damages,
losses, liabilities, claims and expenses arising out of:
(a) The breach of or any inaccuracy of any representation
or warranty that survives the Closing and the nonfulfillment of any
covenant or agreement made by Cognizant or Seller in this Agreement or
any other agreement furnished to Buyer pursuant to this Agreement, and
any and all actions, suits, claims, proceedings, investigations,
audits, demands, assessments, fines, judgments, costs and other
expenses (including reasonable attorney's fees) incurred by Buyer
resulting therefrom provided that Cognizant's and Seller's liability
for the foregoing (other than with respect to Sections 4.24 and 4.25)
shall be limited to $750,000, in the aggregate, provided further that
to the extent Cognizant's and Seller's liability relates to the
representation and warranties in Sections 4.4, 4.13, 4.15 and 4.17
herein and the covenants and agreements under Sections 6.1 and 6.2
herein, the limitation on Cognizant's and Seller's liability shall be
increased by the lesser of (i) an additional $750,000, in the
aggregate, and (ii) the aggregate amount of liability pursuant to the
foregoing sections; and
(b) Any Excluded Liabilities, provided that the
indemnification pursuant to this Sub-Section shall not be exclusive of
any other remedies available at law.
9.4. INDEMNIFICATION OF SELLER. Buyer shall indemnify, defend and
hold Cognizant and Seller harmless from and against any and all damages,
losses, liabilities, claims and expenses arising out of:
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(a) The breach of or any inaccuracy of any representation
or warranty that survives the Closing and the nonfulfillment of any
covenant or agreement made by Buyer in this Agreement and any and all
actions, suits, claims, proceedings, investigations, audits, demands,
assessments, fines, judgments, costs and other expenses (including
reasonable attorney's fees) incurred by Buyer resulting therefrom or
any other agreement furnished to Cognizant pursuant to this Agreement,
provided that Buyer's liability for the foregoing shall be limited to
$750,000, in the aggregate; and
(b) Any Assumed Liabilities or the use of the Purchased
Assets, provided that after the Closing Date, the indemnification
pursuant to this Sub-Section shall not be exclusive of any other
remedies available at law.
9.5 DETERMINATION OF DAMAGES AND RELATED MATTERS
(a) In calculating any amounts payable to either party under Sections
9.3 and 9.4: (i) the indemnifying party shall receive credit for any
reduction in the indemnified party's tax liability as a result of the
facts giving rise to the claim for indemnification and any insurance
recoveries by the indemnified party; (ii) any payments shall be
deemed an increase or decrease, as the case may be, in the Purchase
Price., and (iii) no amount shall be included for the indemnified
party's special or consequential damages.
(b) EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY HAS MADE OR SHALL HAVE LIABILITY FOR ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF
ANY INFORMATION REGARDING THE BUSINESS.
(c) Neither the Buyer, on the one hand, nor Cognizant and
Seller, on the other hand, shall have liability to the other under
this Agreement or otherwise for breach of warranty or agreement, or
misrepresentation, unless, and only to the extent that, the aggregate
amount of the losses, liabilities, damages and expenses of that party
from all claims under this Agreement or otherwise for breach of
warranty or agreement, and misrepresentation, (other than of Sections
4.24 and 4.25) exceeds $35,000. Cognizant and Seller shall have no
liability to Buyer under this Agreement or otherwise for a breach or
inaccuracy of the representation and warranty set forth in Section
4.25 unless, and only to the extent that, the aggregate amount of the
losses, liabilities, damages and expenses of the Buyer for breach of
such representation or warranty exceeds the sum of $1,500,000 plus the
amount of any recovery by Buyer under Section 9.3 hereof for a breach
or inaccuracy of any representation or warranty other than in Section
4.25, where such recovery is from the same underlying facts or events.
Cognizant and Seller shall not have liability to Buyer under this
Agreement or otherwise for a breach or inaccuracy of the
representation and warranty set forth in Section 4.24 unless, and only
to the extent that, the aggregate amount of the losses, liabilities,
damages and expenses of that party from
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all claims under this Agreement or otherwise for breach of the
representation and warranty in Section 4.24, exceeds $50,000.
9.6. DEFENSE OF CLAIMS BY THIRD PARTIES
If any claim is made against a third party that, if sustained, would give rise
to a liability of the other party under this Agreement, the party against whom
the claim is made shall promptly cause notice of the claim to be delivered to
the other party within the time set forth in Section 9.2 and shall afford the
other party and its counsel, at the other party's sole expense, the opportunity
to defend or settle the claim. The failure to provide the notice referred to
above shall not relieve the indemnifying party of liability under this
Agreement, except to the extent the indemnifying party has actually been
prejudiced by such failure. If any claim is compromised or settled without the
consent of the indemnifying party which consent shall not be unreasonably
withheld, no liability shall be imposed upon the indemnifying party by reason
of the claim which consent shall not be unreasonably withheld.
ARTICLE X.
MISCELLANEOUS
10.1. NOTICES. Any notice, request, demand, waiver, consent,
approval or other communication required or permitted hereunder shall be in
writing and may be given by any of the following methods: (a) personal
delivery against a signed receipt; (b) facsimile transmission; (c) registered
or certified mail, postage prepaid, return receipt requested; or (d) overnight
delivery service. Notices shall be sent to the appropriate party at its
address or facsimile number given below (or at such other address or facsimile
number for such party as shall be specified by notice given hereunder):
(a) If to Buyer: APACHE Medical Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Seller: The Cognizant Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to: Cognizant Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed upon (a) actual receipt
thereof by the addressee, (b) actual delivery thereof to the appropriate
address, or (c) in the case of a facsimile transmission, upon transmission
thereof by the sender and confirmation of receipt via telephone. In the case
of notices sent by facsimile transmission, the sender shall contemporaneously
dispatch a copy of the notice to the addresses at the address(es) provided for
above by an overnight courier service. However, such mailing shall in no way
alter the time at which the facsimile notice is deemed received.
10.2. AMENDMENTS AND TERMINATION; WAIVER. This Agreement may be
amended or modified only by a written instrument executed by the parties
hereto. Any term or provision of this Agreement may be waived at any time by
the party entitled to the benefit thereof by a written instrument duly executed
by such party.
10.3. PARTIES IN INTEREST; ASSIGNMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement shall not be assigned by any party
hereto without the prior written consent of the other parties except for
Section 6.11. Except as provided in the next sentence, nothing in this
Agreement, expressed or implied, is intended to confer upon any third person
any rights or remedies under or by reason of this Agreement. The TEs shall be
third party beneficiaries of Section 6.11.
10.4. EXPENSES. Except as provided below in Section 10.5, each
party hereto shall pay its own expenses including, without limitation, fees and
expenses of any agents, representatives, counsel, auditors, and accountants
incidental to the preparation and carrying out of this Agreement. Any sales tax
or use taxes payable by reason of the transfer of the Assets hereunder shall be
paid by the Buyer.
10.5. ATTORNEY'S FEES. In the event of any controversy, claim or
dispute between or among any of the parties hereto arising out of or relating
to this Agreement, or any default or breach or alleged default or breach
thereof, then the party prevailing in such action shall be entitled to be
reimbursed by the non-prevailing party for reasonable attorney's fees and costs
associated with any such action. In addition, if any party hereto shall be
joined as a party in any judicial, administrative, or other legal proceeding
arising from or incidental to any obligation, conduct or action of another
party hereto, the party so joined shall be entitled to be reimbursed by the
other party for its reasonable attorney's fees and costs associated therewith.
10.6. BROKERS. The parties agree that neither party has engaged the
services of a broker. Cognizant and Seller agrees to indemnify Buyer against
any claim by any third person for any commission, brokerage or finder's fee or
any other payment based upon any alleged
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agreement or understanding between such third person and Seller, whether
expressed or implied. Buyer agrees to indemnify Cognizant and Seller against
any claim by any third person for any commission, brokerage or finder's fee or
any other payment based upon any alleged agreement or understanding between
such third person and Buyer, whether expressed or implied.
10.7. SPECIFIC PERFORMANCE. The parties hereto agree that damages
for breach of the agreements and covenants contained herein will be inadequate
and that each of the parties shall be entitled to specific performance or
injunctive relief, or both.
10.8. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the internal substantive laws of the
State of Delaware, excluding any choice of law rules which may direct the
application of the laws of another jurisdiction.
10.9. ENTIRE AGREEMENT. This instrument, including Schedules and
Exhibits hereto and documents and agreements referred to herein, embodies the
whole agreement of the parties. There are no promises, terms, conditions, or
obligations other than those contained herein. All previous negotiations,
representations or agreements between the parties, either verbal or written,
not contained herein are hereby withdrawn and annulled.
10.10. SEVERABILITY. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11. CAPTIONS; SCHEDULES AND EXHIBITS; COUNTERPARTS. The section
and subsection captions contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Unless otherwise indicated, all references in this Agreement to a
particular schedule or exhibit are references to a schedule or exhibit attached
hereto, which such schedules and exhibits are made a part hereof. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.12 DEFINITIONS. (a) References to this Agreement to any gender
include references to all genders, and references to the singular include
references to the plural and vice versa.
(b) The words "include", "includes" and "including" when used in this
Agreement shall be deemed to be followed by the phrase "without limitation".
(c) Unless the context otherwise requires, references in this
Agreement to Articles, Sections, Exhibits, Schedules, Appendices and
Attachments shall be deemed references to Articles and Sections of, and
Exhibits, Schedules, Appendices and Attachments to, this Agreement.
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(d) Unless the context otherwise requires, the words "hereof",
"hereby" and "herein" and words of similar meaning when used in this Agreement
refer to this Agreement in its entirety and not to any particular Article,
Section or provision of this Agreement.
(e) "Knowledge of Cognizant and Seller" shall mean the actual
knowledge of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the TEs.
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IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement on the date first above written.
APACHE MEDICAL SYSTEMS, INC.
By:
----------------------------------
Name:
Title:
COGNIZANT CORPORATION
By:
------------------------------------
Name:
Title:
DUN & BRADSTREET
HEALTHCARE INFORMATION, INC.
By:
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Name:
Title:
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