Exhibit 2
PURCHASE AND STANDSTILL AGREEMENT
AND MUTUAL RELEASE
THIS PURCHASE AND STANDSTILL AGREEMENT ("Agreement"), dated as of June 26, 1997,
by and among HACH COMPANY, a Delaware corporation (the "Company"), and ▇▇▇▇▇▇
INTERNATIONAL, INC., a Delaware corporation ("▇▇▇▇▇▇").
R E C I T A L S:
Whereas, ▇▇▇▇▇▇ owns 3,157,220 shares of the $1.00 par value Common Stock of the
Company (the "Shares"), which is approximately 28% of the issued and outstanding
shares of Common Stock of the Company; and
Whereas, ▇▇▇▇▇▇ proposes to sell and the Company proposes to purchase the
Shares; and
Whereas, the Board of Directors of the Company, in consultation with legal and
financial advisors, has unanimously (with certain directors abstaining)
determined that the purchase of the Shares at the negotiated price is in the
best interests of the Company and its stockholders; and
Whereas, the Board of Directors of ▇▇▇▇▇▇, in consultation with legal and
financial advisors, has unanimously determined that the sale of the Shares at
the negotiated price is in the best interests of ▇▇▇▇▇▇ and its stockholders;
and
Whereas, the Company and ▇▇▇▇▇▇ are willing to effect the purchase and sale of
the Shares on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, the Company and ▇▇▇▇▇▇ in consideration of the agreements,
covenants and conditions set forth herein, agree as follows:
ARTICLE 1.
TRANSFERS OF SHARES, PAYMENT AND CLOSING
1.1 Transfer of Shares by ▇▇▇▇▇▇. On the terms and subject to the
conditions of this Agreement, at the Closing (as defined herein), in exchange
for the Purchase Price referred to in Section 1.2, ▇▇▇▇▇▇ shall sell, transfer
and deliver to the Company, and the Company shall purchase, acquire and accept
from ▇▇▇▇▇▇, the Shares.
1.2 Payment for Shares. The purchase price to be paid by the Company for
the Shares (the "Purchase Price") will be $19.00 per share or a total of
$59,987,180.00 for all said Shares. The Purchase Price shall be paid by wire
transfer of immediately available funds to an account or accounts designated in
writing by ▇▇▇▇▇▇. Such designation shall be received by the Company at least
48 hours prior to Closing.
1.3 Closing. The closing of the transaction contemplated by Section
1.1 of this Agreement ("Closing") shall take place at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, on July
8, 1997 at 10:0 0 a.m., or at such earlier date and time as the parties may
mutually agree.
1.4 Deliveries at Closing.
(a) At the Closing, ▇▇▇▇▇▇ shall deliver or cause to be delivered to the
Company the following:
(i) stock certificates representing the Shares accompanied by stock powers
duly executed in blank and otherwise in form acceptable for transfer on the
books of the Company (the certificates and powers are referred to herein as the
"Share Certificates").
(ii) a certificate of the Secretary of ▇▇▇▇▇▇ certifying resolutions of the
Board of Directors of ▇▇▇▇▇▇ approving this Agreement and the transactions
contemplated hereby together with an incumbency and signature certificate
regarding the officer or officers signing on behalf of ▇▇▇▇▇▇.
(b) At the Closing, the Company shall deliver or cause to be delivered to
▇▇▇▇▇▇ the following:
(i) a certificate of the Secretary of the Company certifying resolutions of
the Board of Directors of the Company approving this Agreement and the
transactions contemplated hereby together with an incumbency and signature
certificate regarding the officer or officers signing on behalf of the Company.
(ii) the amount of $59,987,180.00 constituting the aggregate Purchase Price
by wire transfer of immediately available funds to a bank account
designated by ▇▇▇▇▇▇.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
OF ▇▇▇▇▇▇
▇▇▇▇▇▇ represents and warrants to the Company as follows:
2.1 Ownership and Delivery of Shares. ▇▇▇▇▇▇ is the lawful owner of record
of the Shares and the Shares being transferred by ▇▇▇▇▇▇ are owned by ▇▇▇▇▇▇,
free and clear of any and all pledges, security interests, liens, charges,
encumbrances or adverse claims. There are no outstanding options, warrants,
calls, subscriptions, agreements or commitments of any character affecting the
Shares. ▇▇▇▇▇▇ is not a party to any voting trust, proxy or other agreement or
understanding with respect to t he voting of the shares. At the Closing against
payment therefor pursuant to Section 1.2 hereof, ▇▇▇▇▇▇ shall transfer valid
title to the Shares to the Company. Upon payment therefor and delivery thereof
at the Closing as provided herein, the Company will own the Shares free and
clear of all claims, liens and encumbrances other than those created by the
Company.
2.2 Authorization of Transaction. ▇▇▇▇▇▇ has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement has been duly and validly authorized, executed and delivered by
▇▇▇▇▇▇ and constitutes the valid and legally binding obligation of ▇▇▇▇▇▇,
enforceable against ▇▇▇▇▇▇ in accordance with its terms and conditions. ▇▇▇▇▇▇
is not required to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of its stockholders or of any government or
governmental agency or any stock exchange in order to consummate the
transactions contemplated by this Agreement.
2.3 Noncontravention. Neither the execution and the delivery by ▇▇▇▇▇▇ of
this Agreement, nor the consummation by ▇▇▇▇▇▇ of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge or other restriction of any
government, governmental agency, or court to which ▇▇▇▇▇▇ is subject, or (B)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which ▇▇▇▇▇▇ is a party or by
which it is bound or to which any of its assets are subject.
2.4 Brokers' Fees. ▇▇▇▇▇▇ has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Company could become liable or
obligated.
2.5 Litigation. ▇▇▇▇▇▇ has no knowledge (as defined below) of any action,
suit, proceeding, hearing, or investigation of, in or before any court or quasi-
judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator involving the Shares, its ownership or
authority with respect to the Shares, or the transactions contemplated by this
Agreement.
2.6 Entire Ownership. Other than the Shares and other than 500 shares of
Common Stock of the Company owned by a director of ▇▇▇▇▇▇, neither ▇▇▇▇▇▇ nor
any of its Affiliates (as defined below) beneficially owns, directly or
indirectly, any securities issued by the Company. Since September 15, 1995, the
date of ▇▇▇▇▇▇'▇ last amendment to its Schedule 13D, neither ▇▇▇▇▇▇ nor any of
its Affiliates has (i) directly or indirectly, purchased or sold any shares of
the Common Stock of the Company o r (ii) caused or encouraged any Person (as
defined below) to purchase or sell any such shares.
ARTICLE 3.
REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company represents, warrants and agrees for the benefit of ▇▇▇▇▇▇ as
follows:
3.1 Authorization of Transaction. The Company has full power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms and
conditions. The Company is not required to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of its stockholders or
of any government or governmental agency or NASDAQ (as defined below), in order
to consummate the transactions contemplated by this Agreement.
3.2 Noncontravention. Neither the execution and the delivery by the Company
of this Agreement, nor the consummation by the Company of the transactions
contemplated hereby, will (A) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Company is
subject, or (B) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Company is a party or by which it is bound or to which any of its assets
are subject.
3.3 Brokers' Fees. The Company has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which ▇▇▇▇▇▇ could become liable
or obligated.
3.4 SEC Reports. Since July 1, 1996, the Company has filed all forms,
reports and documents with the SEC required to be filed by it pursuant to the
Federal securities laws and the rules and regulations of the SEC (as defined
below) thereunder, all of which to the Company's knowledge (as defined below)
complied in all material respects with all applicable requirements of the 1933
Act (as defined below) and the 1934 Act (as defined below) and the rules and
regulations promulgated thereunder. The above reports of the Company to the SEC
are collectively referred to herein as the "Company SEC Reports." None of the
Company SEC Reports, including, without limitation, any financial statements or
schedules included therein, at the time filed and at the date of Closing,
contained or will contain any untrue statement of a material fact or omitted or
will omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
3.5 Litigation. The Company has no knowledge of any action, suit,
proceeding, hearing, or investigation of, in, or before any court or quasi-
judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator involving the transactions contemplated by
this Agreement.
ARTICLE 4.
STANDSTILL PROVISIONS
4.1 Standstill Provisions. From the date hereof through and including the
tenth (10th) anniversary of the Closing, ▇▇▇▇▇▇ agrees that, without the
Company's prior written consent, ▇▇▇▇▇▇ will not, and will not permit or cause
any of its Controlled Affiliates (as defined below) to and will not encourage
any of its Controlling Affiliates (as defined below) to:
(a) acquire, announce an intention to acquire, offer or propose to acquire,
or agree to acquire, directly or indirectly, by purchase or otherwise,
beneficial ownership of any $1.00 par value Common Stock of the Company or other
securities of the Company (collectively the "Securities") or direct or indirect
rights or options to acquire (through purchase, exchange, conversion or
otherwise) any Securities;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined in Rule 14a-1 under the
▇▇▇▇ ▇▇▇) to vote any Securities, seek to advise, encourage or influence any
person or entity with respect to the voting of any Securities, initiate or
propose any shareholder proposal under Rule 14a-8 under the 1934 Act or induce
or attempt to induce any other person to initiate any shareholder proposal;
(c) make any statement or proposal, whether written or oral, to the Board of
Directors of the Company, or to any director, officer or agent of the Company,
or make any public announcement or proposal whatsoever with respect to a merger
or other business combination, sale or transfer of assets, recapitalization,
dividend, share repurchase, liquidation or other extraordinary corporate
transaction with the Company or other transaction which could result in a change
of control, or solicit or encourage any other person to make such statement or
proposal;
(d) form, join or in any way participate in a "group" (within the meaning of
Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to any Securities;
(e) otherwise act, alone or in concert with others, to seek to exercise any
control over the management, Board of Directors or policies of the
Company;.
(f) make a public request to the Company (or its directors, officers,
shareholders, employees or agents) to amend or waive any provisions of
this Agreement, the Certificate of Incorporation or By-Laws of the
Company;
(g) take any action which might require the Company to make a public
announcement regarding the possibility of any transaction referred to in
paragraph (c) above or similar transaction or, advise, assist or encourage any
other persons in connection with the foregoing; or
(h) disclose any intention, plan or arrangement inconsistent with the
foregoing.
Notwithstanding the foregoing, if the Closing shall not take place hereunder
(other than as a result of a material breach hereof by ▇▇▇▇▇▇), then the
obligations of ▇▇▇▇▇▇ under this Section 4.1 shall be of no further force or
effect.
ARTICLE 5.
ADJUSTMENT ON CHANGE OF CONTROL
5.1 Adjustment on Change of Control. In the event that a Change of Control
(as defined below) (i) occurs on or prior to September 30, 1998, and (ii) if as
a result of the transaction resulting in such Change of Control any stockholders
of the Company receive cash of more than $19.00 per share (the purchase price to
be paid per share for the Shares at Closing) for their respective shares of
Common Stock of the Company, then at the closing of such transaction the Company
shall pay to ▇▇▇▇▇▇ i n cash an amount equal to the product of (x) the
difference between the greatest amount per share received by stockholders of the
Company in such transaction and the amount of the purchase price to be paid per
share for the Shares at Closing times (y ) 3,157,220. In the event that between
the date hereof and the date of the consummation of such transaction the
Company's stock is subject to any stock split, stock dividend, merger,
consolidation, recapitalization, combination or reorganization, an equitable
adjustment shall be made to reflect any such event in computing the additional
amount to be paid to ▇▇▇▇▇▇ pursuant to this provision. In the event the
payment in such Change of Control transaction is not made solely in cash, the
parties shall in good faith negotiate a fair cash equivalent for any non-cash
element and failing to reach agreement thereon the same shall be determined
through arbitration in Chicago, Illinois, in accordance with the rules of the
American Arbitration Association, with ▇▇▇▇▇▇ and the Company each selecting one
arbitrator and such arbitrators selecting a third arbitrator. The decision of
such panel of arbitrators shall be final, conclusive and binding on the parties
hereto.
5.2 Definition of Change of Control. A "Change of Control" shall occur (A)
when the stockholders of the Company approve a definitive agreement or plan (i)
to merge or consolidate the Company with or into another Company (other than a
merger or consolidation which would result in the Voting Stock (as defined
below) of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity ) more than fifty percent of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation), or (ii) to sell, or
otherwise dispose of, all or substantially all of the Company's property and
assets, or (iii) to liquidate the Company or (B) if the Company is the subject
of a Rule 13e-3 transaction (as defined under the 1934 Act). The term "Voting
Stock" means all capital stock of the Company which by its terms may be voted on
all matters submitted to stockholders of the Company generally. Without
limiting the generality of the foregoing, the transaction contemplated by this
Agreement is not a Change of Control.
ARTICLE 6.
CONDITIONS PRECEDENT TO OBLIGATION
OF THE COMPANY TO PURCHASE THE SHARES
Each of the following shall be conditions to the Company's obligations with
respect to the Closing:
6.1 Representations and Warranties Correct. The representations and
warranties of ▇▇▇▇▇▇ made in this Agreement shall be correct as of the Closing,
with the same force and effect as though such representations and warranties
had been made at the Closing.
6.2 Performance of Covenants. Except where specifically provided to the
contrary, all the terms, conditions and covenants of this Agreement shall be
complied with and performed by ▇▇▇▇▇▇ on or before the Closing.
6.3 Closing Deliveries. The Company shall have received all of the
documents and items specified in Section 1.4(a) executed by ▇▇▇▇▇▇ and the other
parties thereto.
6.4 No Injunction. On the Closing Date there shall be no effective
injunction, writ, preliminary injunction, temporary restraining order or other
order of any nature issued by a court of competent jurisdiction directing that
the transactions provided for herein or any of them not be consummated as so
provided.
6.5 Market Out. (a) There shall not have occurred any material adverse
change in the financial markets in the United States (as defined below) or any
outbreak of hostilities or escalation thereof or other calamity or crisis, (b)
trading generally on the New York Stock Exchange shall not have been suspended,
limited or restricted or minimum or maximum prices for trading shall not have
been fixed, or maximum range for prices for securities shall not have been
required, by said exchange or by order of the SEC or any other governmental
authority, and (c) a banking moratorium shall not have been declared by either
Federal or New York authorities. A "material adverse change in the financial
markets in the United States" shall mean (i) a more than 10% single-day decline
in either the Dow ▇▇▇▇▇ Industrials Average or the Standard & Poors index of 500
stocks or (ii) a more than 20% decline in either such index on a cumulative
basis between the close of trading on June 25, 1997 and the close of trading on
the last trading day prior to Closing.
ARTICLE 7.
CONDITIONS PRECEDENT TO OBLIGATION
OF ▇▇▇▇▇▇ TO SELL THE SHARES
Each of the following shall be conditions of ▇▇▇▇▇▇'▇ obligations with respect
to the Closing:
7.1 Representations and Warranties Correct. The representations and
warranties of the Company made in this Agreement shall be correct as of the
Closing, with the same force and effect as though such representations and
warranties had been made a t the Closing.
7.2 Performance of Covenants. Except where specifically provided to the
contrary, all of the terms, conditions and covenants of this Agreement shall be
complied with and performed by the Company on or before the Closing.
7.3 Closing Deliveries. ▇▇▇▇▇▇ shall have received all of the documents and
items specified in Section 1.4(b) executed by the Company and the other parties
thereto.
7.4 No Injunction. On the Closing Date, there shall be no effective
injunction, writ, preliminary injunction, temporary restraining order or other
order of any nature issued by a court of competent jurisdiction directing that
the transactions provided for herein or any of them not be consummated as so
provided.
ARTICLE 8.
TERMINATION
8.1 Termination. This Agreement may be terminated at any time on or prior
to the Closing Date:
(a) by the mutual consent of ▇▇▇▇▇▇ and the Company;
(b) by ▇▇▇▇▇▇ or the Company, if the Closing shall not have taken place on
or before July 31, 1997;
(c) by the Company, if there shall have been a material breach of any
covenant or representation or other agreement of ▇▇▇▇▇▇ hereunder, and such
breach shall not have been remedied within three (3) business days after receipt
by ▇▇▇▇▇▇ of a notice in writing from the Company specifying the breach and
requesting such be remedied; or
(d) by ▇▇▇▇▇▇, if there shall have been a material breach of any covenant or
representation or other agreement of the Company hereunder, and such breach
shall not have been remedied within three (3) business days after receipt by the
Company of notice in writing from ▇▇▇▇▇▇ specifying the breach and requesting
such be remedied.
8.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 8.1, all obligations and agreements o the parties hereunder shall
terminate, except that no such termination shall relieve any party from
liability for any prior willful breach of this Agreement.
ARTICLE 9.
MUTUAL RELEASES
9.1 Release and Waiver. Effective upon the Closing, each of the parties
hereto, for itself and its subsidiaries, and for each of their respective
principals, partners, fiduciaries, affiliates, managers, directors,
stockholders, officers, agents and employees and for the predecessors,
successors and assigns of each of them (the "Releasing Persons"), does hereby
forever and unconditionally release, acquit and discharge each of the other
parties hereto, and each of their respective principals, partners, fiduciaries,
affiliates, managers, directors, stockholders, officers, agents and employees,
and the predecessors, successors and assigns of each of them (collectively the
"Released Persons"), with respect to any and all claims, controversies, causes
of action, suits or liabilities of whatever kind or nature, whether known or
unknown, whether in law or in equity, which the Releasing Persons had or has
against any Released Person for any matter, thing, event or omission which
arises directly or indirectly out of the ownership by ▇▇▇▇▇▇ of the Shares,
including without limitation claims which ▇▇▇▇▇▇ has or believes it may have as
a stockholder relating to fiduciary duties of directors or officers, disclosure
or similar matters; provided, however, that nothing contained herein shall
release any claim with respect to this Agreement.
ARTICLE 10.
MISCELLANEOUS
10.1 Defined Terms. The following shall have the meanings indicated:
"Affiliates" shall have the meaning specified in Rule 12b-2 under the 1934 Act.
"Controlled Affiliates" shall mean a Person which is controlled by another
Person. "Controlling Affiliates" shall mean a Person which controls another
Person.
"NASDAQ" shall mean the Nasdaq Stock Market.
"Knowledge," when used in respect of the Company or ▇▇▇▇▇▇, shall mean the
actual knowledge of its Chief Executive Officer, Chief Operating Officer or
Chief Financial Officer.
"Person" shall have the meaning specified in Section 2(a)(2) of the ▇▇▇▇ ▇▇▇.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"1933 Act" shall mean Securities Act of 1933, as amended.
"1934 Act" shall mean Securities Exchange Act of 1934, as amended.
10.2 Specific Performance. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, it is agreed that, in addition to any other
remedies which they may have, the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of competent jurisdiction.
10.3 Efforts to Close. Subject to the terms and conditions hereof, the
Company and ▇▇▇▇▇▇ each agree to use their commercially reasonable efforts to
take all action required of them to fulfill their respective obligations under
the terms of this agreement and to facilitate the consummation of the
transactions contemplated hereby.
10.4 Public Disclosure. As soon as practicable following the execution and
delivery of this Agreement, the Company and ▇▇▇▇▇▇ shall issue press releases in
the forms attached hereto as Exhibits A and B, respectively. Thereafter,
without the prior written consent of the other party, neither party shall make a
public statement regarding the other party or the transactions contemplated
hereby; provided, however, that without such prior written consent, each party
shall be free to make comments to its stockholders and employees and to
financial analysts and the press which are substantially consistent with
disclosures in such press releases and in prior public disclosures; provided,
further that ▇▇▇▇▇▇ may make appropriate disclosures in a n amendment to its
Schedule 13D and the Company may make appropriate disclosures in an amendment to
its preliminary proxy statement filed with the SEC on May 19, 1997; and
provided, further, that each party may file the press release and a copy of this
Agreement as part of a Form 8-K filing under the 1934 Act or other required
regulatory filing and may make any other disclosure required by law.
10.5 Expenses. Each party to this Agreement shall pay its own costs and
expenses (including all legal, accounting, broker, finder and investment banker
fees) relating to this Agreement, the negotiations leading up to this Agreement
and the transactions contemplated by this Agreement.
10.6 Amendment. This Agreement shall not be amended or modified except by a
writing duly executed by ▇▇▇▇▇▇ and the Company.
10.7 Further Assurances. Each party to this Agreement shall execute all
instruments and documents and take all actions as may reasonably be necessary to
effectuate this Agreement.
10.8 Entire Agreement. This Agreement, including the other instruments,
agreements and documents delivered pursuant to this Agreement, contain all of
the terms, conditions and representations and warranties agreed upon by the
parties relating to the subject matter of this Agreement and supersede all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter.
10.9 Headings. The headings contained in this Agreement are intended solely
for convenience and shall not affect the rights of the parties to this
Agreement.
10.10 Notices. All notices, requests, demands, and other communications
hereunder shall be deemed to have been duly given if delivered in person, or by
electronic facsimile, or mailed, certified and registered mail with postage
prepaid (and, if by electronic facsimile, with acknowledgment or evidence of
receipt or with copies mailed, certified or registered mail with postage
prepaid):
(a) If to ▇▇▇▇▇▇:
▇▇▇▇▇▇ International, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇'▇▇▇▇▇▇▇, Chairman
and Chief Executive Officer
Telefax No.: 847/559-0285
With a copy to:
▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇
Three First National Plaza, Suite 3200
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telefax No. 312/372-2098
(b) If to the Company:
Hach Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇, Chairman and
Chief Executive Officer
Telefax No.: 970/962-6740
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Case, Esq.
Telefax No.: 312/993-9350
10.11 Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to this Agreement to the
extent possible. In an y event, all other provisions of this Agreement shall be
deemed valid and enforceable to the full extent possible.
10.12 Waiver. Waiver of any term or condition of this Agreement by any party
shall only be effective if in writing and shall not be construed as a waiver of
any subsequent breach or failure of the same term or condition, or a waiver of
any other term or condition of this Agreement.
10.13 No Third Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any person or entity which is not a party or an assignee of a
party to this Agreement.
10.14 Survival of Representations and Warranties. Each and every
representation, warranty and agreement of the Parties contained herein or in any
certificate, schedule or other document delivered before or at the Closing shall
survive the Closing.
10.15 Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Delaware without regard to conflicts of law principles.
10.16 Attorneys' Fees. Should an action be instituted by either of the
parties hereto in any court of law or equity pertaining to the enforcement of
any of the provisions of this Agreement, the prevailing party shall be entitled
to recover, in addition to any judgment or decree rendered therein, all court
costs and reasonable attorneys' fees and expenses.
10.17 Construction. Each party to this Agreement and its counsel have
reviewed and revised this Agreement. The rule of construction that any
ambiguity shall be resolved against the drafting party shall not be employed in
the interpretation of this Agreement.
10.18 Successors and Assigns; Assignment. All of the terms, covenants and
conditions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. No party hereto
shall be permitted to assign its rights under this Agreement except with the
written consent of the other party, except that ▇▇▇▇▇▇ may assign its rights
under this Agreement to any subsidiary of ▇▇▇▇▇▇ or to any successor (whether by
purchase, merger or otherwise) to all or substantially all of the assets or
business of ▇▇▇▇▇▇. No assignment or transfer permitted hereunder shall relieve
any such assignor or transferor of any of its obligations hereunder and any
assignee or transferee shall assume in writing all of the undertakings of
assignor or transferor under this Agreement.
IN WITNESS WHEREOF, each of the parties have executed its name to this
Agreement, authorized as of the day and year first above written.
HACH COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Its: President
▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Its: Chairman and Chief Executive
Officer