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EXHIBIT 10.2
LIMITED LIABILITY COMPANY INTEREST
PURCHASE AGREEMENT
by and among
PINPOINT TECHNOLOGIES, INC.
as Buyer and a wholly-owned subsidiary of
ZOLL MEDICAL CORPORATION
PINPOINT PROPERTY MANAGEMENT, LLC
(the "Company")
and
The Members of the Company
listed on Exhibit A hereto
October 15, 1999
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LIMITED LIABILITY COMPANY INTEREST
PURCHASE AGREEMENT
INDEX
PAGE
SECTION 1. SALE OF LLC INTERESTS AND PURCHASE PRICE.........................1
1.1 Sale and Transfer of LLC Interests...............................1
1.2 Purchase Price and Payment.......................................2
1.3 Time and Place of Closing........................................2
1.4 Further Assurances...............................................2
1.5 Transfer Taxes...................................................2
SECTION 2. GENERAL REPRESENTATIONS AND WARRANTIES OF THE MEMBERS
AND THE COMPANY..................................................2
2.1 Making of Representations and Warranties.........................2
2.2 Organization and Qualifications of the Company...................2
2.3 Interests of the Company; Beneficial Ownership...................3
2.4 Authority of the Company; Enforceability; No Conflict............3
2.5 Liabilities......................................................4
2.6 Taxes............................................................4
2.7 Absence of Certain Changes.......................................5
2.8 Banking Relations................................................6
2.9 Contracts........................................................6
2.10 Litigation.......................................................6
2.11 Compliance with Laws.............................................6
2.12 Insurance........................................................6
2.13 Powers of Attorney...............................................7
2.14 Finder's Fee.....................................................7
2.15 Corporate Records; Copies of Documents...........................7
2.16 Unit Repurchase..................................................7
2.17 Property.........................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES OF MEMBERS........................8
3.1 Authority........................................................9
3.2 Securities Laws Matters..........................................9
3.3 Representation Disclaimer.......................................10
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER AND ZOLL................10
4.1 Making of Representations and Warranties........................10
4.2 Organization....................................................10
4.3 Authority.......................................................11
(i)
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PAGE
4.4 Litigation......................................................11
4.5 Finder's Fee....................................................11
4.6 Zoll Common Stock...............................................11
SECTION 5. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING....................12
5.1 Survival of Warranties..........................................12
SECTION 6. INDEMNIFICATION.................................................12
6.1 Indemnification by Members......................................12
6.2 Indemnification by Zoll.........................................13
SECTION 7. MISCELLANEOUS...................................................13
7.1 Fees and Expenses...............................................13
7.2 Governing Law...................................................14
7.3 Notices.........................................................14
7.4 Entire Agreement................................................15
7.5 Assignability; Binding Effect...................................15
7.6 Captions and Gender.............................................15
7.7 Execution in Counterparts.......................................15
7.8 Amendments......................................................15
7.9 Publicity and Disclosures.......................................15
7.10 Specific Performance............................................15
7.11 Dispute Resolution..............................................16
(ii)
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LIMITED LIABILITY COMPANY INTEREST
PURCHASE AGREEMENT
AGREEMENT (the "Agreement") entered into as of October 15, 1999 by and
among Pinpoint Technologies, Inc., a Delaware corporation (the "Buyer"), Zoll
Medical Corporation, a Massachusetts corporation and the owner of all the issued
and outstanding equity interests of Buyer ("Zoll"), and the members of Pinpoint
Property Management, LLC, a Colorado limited liability company (the "Company")
listed on EXHIBIT A hereto, (collectively referred to as the "Members" and
individually as a "Member").
W I T N E S S E T H
WHEREAS, the Buyer and a wholly-owned subsidiary of Zoll have
consummated a merger under Delaware law so that Buyer is a wholly-owned
subsidiary of Zoll (the "Merger");
WHEREAS, the Members own of record and beneficially one hundred percent
(100%) of the outstanding interests of the Company which interests are
represented by capital accounts as set forth on EXHIBIT A hereto ("LLC
Interests");
WHEREAS, the Members desire to sell all of the LLC Interests to Buyer,
and Buyer desires to acquire all of the LLC Interests; and
WHEREAS, the Company owns title to a parcel of land and improvements
thereon as more fully set forth on EXHIBIT B hereto (the "Property").
NOW, THEREFORE, in order to consummate aforesaid purchase and sale and
in consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
SECTION 12. SALE OF LLC INTERESTS AND PURCHASE PRICE.
12.1 SALE AND TRANSFER OF LLC INTERESTS. In consideration of and in
reliance upon the representations, warranties and covenants contained herein and
subject to the terms and conditions of this Agreement, the Members agree to
sell, and Buyer agrees to purchase, at the Closing (as defined below), the LLC
Interests. At the Closing, (a) each Member shall deliver or cause to be
delivered to Buyer all of the LLC Interests owned by such Member, as set forth
on EXHIBIT A, and such LLC Interests shall be duly endorsed in blank for
transfer or shall be presented with membership interest powers duly executed in
blank, with such signature guarantees and such other documents as may be
reasonably required by Buyer to effect a valid transfer of such LLC Interests by
such Member, free and clear of any and all liens,
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encumbrances, charges or claims of any kind (collectively "Claims") and such
other documentation as may be reasonably agreed to by Buyer and the Members in
connection with the consummation of the transaction contemplated by this
Agreement; and (b) Buyer shall deliver to the Members certificates for Zoll
Common Stock, as set forth in Section 1.2 and such other documentation as may be
reasonably agreed to by Buyer and the Members in connection with the
consummation of the transactions contemplated by this Agreement.
12.2 PURCHASE PRICE AND PAYMENT. In consideration of the sale by the
Members to Buyer of the LLC Interests and in reliance upon the representations
and warranties of the Company and the Members herein contained and made at the
Closing and subject to the satisfaction of all of the conditions contained
herein, Buyer agrees that at the Closing it will deliver an aggregate of 23,769
shares of Common Stock of Zoll, par value $.02 per share ("Zoll Common Stock")
to the Members, with such aggregate amount to be registered in the names of the
Members as set forth on EXHIBIT A.
12.3 TIME AND PLACE OF CLOSING. The closing of the purchase and sale
provided for in this Agreement (the "Closing") shall be held at the offices of
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, Boston, Massachusetts immediately following the
Merger on October 15, 1999 or at such other place or an earlier or later date or
time as may be mutually agreed upon by the parties (the "Closing Date").
12.4 FURTHER ASSURANCES. The Members from time to time after the
Closing at the request of Buyer and without further consideration shall execute
and deliver further instruments of transfer and assignment and take such other
action as Buyer may reasonably require to more effectively transfer and assign
to, and vest in, Buyer the LLC Interests and all rights thereto, and to fully
implement the provisions of this Agreement.
12.5 TRANSFER TAXES. All transfer taxes, fees and duties under
applicable law incurred in connection with the sale and transfer of the LLC
Interests under this Agreement will be borne and paid by the Members, and the
Members shall promptly reimburse the Company and Buyer for any such tax, fee or
duty which any of them is required to pay under applicable law.
SECTION 13. GENERAL REPRESENTATIONS AND WARRANTIES OF THE
MEMBERS AND THE COMPANY.
13.1 MAKING OF REPRESENTATIONS AND WARRANTIES. As a material inducement
to Buyer and Zoll to enter into this Agreement and consummate the transactions
contemplated hereby, each of the Members and the Company jointly and severally
hereby make to Buyer and Zoll the representations and warranties contained in
this Section 2.
13.2 ORGANIZATION AND QUALIFICATIONS OF THE COMPANY. The Company is a
limited liability company duly organized, validly existing and in good standing
under the laws of the
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State of Colorado. The Company is not required to be registered as a foreign
limited liability company in any other jurisdiction.
13.3 INTERESTS OF THE COMPANY; BENEFICIAL OWNERSHIP.
(a) Immediately prior to giving effect to this transaction,
the Members own 100% of the LLC Interests. EXHIBIT A sets forth (i) the names of
each member of the Company and the sharing ratio percentage of such LLC
Interests owned of record and beneficially by such Member and such LLC Interests
are owned by such Member free and clear of any liens, restrictions or
encumbrance, and (ii) the names and positions of each manager and officer, if
any, of the Company. There are no outstanding subscriptions, options, warrants,
commitments, preemptive rights, agreements, arrangements or commitments of any
kind for or relating to the issuance, or sale of, or outstanding securities
convertible into or exercisable or exchangeable for any LLC Interests or other
equity interests of the Company. There are no voting trusts, voting agreements,
proxies or other agreements, instruments or undertakings with respect to the
voting of the LLC Interests to which the Company or any of the Members is a
party. The Company has no obligation to purchase, redeem or otherwise acquire
any of its LLC Interests or any interests therein, and has never redeemed any
LLC Interests. All of the LLC Interests of the Company will have been duly and
validly authorized and issued and will be fully paid and non-assessable and will
have been offered, issued, sold and delivered in compliance with applicable
federal and state securities laws and not subject to any preemptive rights which
have not been otherwise expressly waived. The Company is managed solely by the
Members.
13.4 AUTHORITY OF THE COMPANY; ENFORCEABILITY; NO CONFLICT.
(a) The Company has full right, authority and power to enter
into this Agreement and each agreement, document and instrument to be executed
and delivered by the Company pursuant to this Agreement and to carry out the
transactions contemplated hereby. The execution, delivery and performance by the
Company of this Agreement and each such other agreement, document and instrument
have been duly authorized by all necessary action of the Company and no other
action on the part of the Company or the Members is required in connection
therewith.
This Agreement and each agreement, document and instrument executed and
delivered by the Company pursuant to this Agreement constitutes, or when
executed and delivered will constitute, valid and binding obligations of the
Company enforceable in accordance with their terms. The execution, delivery and
performance by the Company of this Agreement and each such agreement, document
and instrument:
(i) does not and will not violate any provision of
the Articles of Organization or Operating Agreement of the Company;
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(ii) does not and will not violate any laws of the
United States, or any state or other jurisdiction applicable to the
Company or require the Company to obtain any approval, consent or
waiver of, or make any filing with, any person or entity (governmental
or otherwise) that has not been obtained or made; and
(iii) does not and will not result in a breach of,
constitute a default under, accelerate any obligation under, or give
rise to a right of termination of any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien,
lease, permit, authorization, order, writ, judgment, injunction,
decree, determination or arbitration award to which the Company is a
party or by which the property of the Company is bound or affected, or
result in the creation or imposition of any mortgage, pledge, lien,
security interest or other charge or encumbrance on any of the
Company's assets or the LLC Interests, except as specifically
identified on SCHEDULE 2.4.
13.5 LIABILITIES.
(a) As of the Closing, the Company does not and will not have
any liabilities of any nature, whether accrued, absolute, contingent or
otherwise, asserted or unasserted, known or unknown (including without
limitation, liabilities as guarantor or otherwise with respect to obligations of
others, liabilities for taxes due or then accrued or to become due, or
contingent or potential liabilities relating to activities of the Company or the
conduct of their business prior to the Closing Date regardless of whether claims
in respect thereof had been asserted as of such date), except (i) liabilities
represented by the Mortgage dated March 15, 1999 between Bank One, Colorado,
N.A. and Pinpoint Properties Management LLC (the "Mortgage"), (ii) executory
obligations under a lease to Green Mountain Geophysics, Inc. (the "Tenant
Lease"), and (iii) executory obligations under a lease to Buyer (the "Pinpoint
Lease").
13.6 TAXES. The Company has filed all tax returns which it is required
to file under applicable laws and regulations; all such returns are complete and
correct in all material respects; the Company has paid all taxes due and owing
by it, whether or not shown on a return, and has withheld and paid over all
taxes which it is obligated to withhold from amounts paid or owing to any
employee, Member, creditor or other third party (collectively "Taxes"); the
Company has not waived any statute of limitations with respect to Taxes or
agreed to any extension of time with respect to a Tax assessment or deficiency;
to the Company's knowledge, no foreign, federal, state or local Tax audits are
pending or being conducted with respect to the Company, no information related
to Tax matters has been requested by any foreign, federal, state or local taxing
authority and no notice indicating an intent to open an audit or other review
has been received by the Company from any foreign, federal, state or local
taxing authority; and to the Company's knowledge, there are no material
unresolved questions or claims concerning the Company's Tax liability; the
Company qualifies (and has qualified since the date of its formation) to be
treated as a partnership for Federal, state and local income tax purposes. The
Company is not a party to any Tax allocation or sharing agreement. The Company
does not have any liability for the Taxes of any person as a transferee or
successor, by
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contract, or otherwise. The unpaid Taxes of the Company will not exceed
_____________ as of the Closing Date. There are no liens on or other security
interests in the assets of the Company that arose in connection with any failure
(or alleged failure) to pay any Tax other than for current Taxes not yet due and
payable.
13.7 ABSENCE OF CERTAIN CHANGES. Except as disclosed in SCHEDULE 2.7
attached hereto, since September 30, 1999, there has not been:
(a) any change in the financial condition, properties, assets,
liabilities, business or operations of the Company, which change by itself or in
conjunction with all other such changes, whether or not arising in the ordinary
course of business, has been materially adverse with respect to the Company;
(b) any contingent liability incurred by the Company as
guarantor or otherwise with respect to the obligations of others or any
cancellation of any material debt or claim owing to, or waiver of any material
right of, the Company;
(c) any mortgage, encumbrance or lien placed on any of the
properties of the Company which remains in existence on the date hereof or will
remain on the date of the Closing;
(d) any obligation or liability of any nature, whether
accrued, absolute, contingent or otherwise, asserted or unasserted, known or
unknown (including without limitation liabilities for Taxes due or to become due
or contingent or potential liabilities relating to products or services provided
by the Company or the conduct of the business of the Company since September 30,
1999 regardless of whether claims in respect thereof have been asserted),
incurred by the Company other than obligations and liabilities incurred in the
ordinary course of business consistent with the terms of this Agreement (it
being understood that product or service liability claims shall not be deemed to
be incurred in the ordinary course of business);
(e) any purchase, sale or other disposition, or any agreement
or other arrangement for the purchase, sale or other disposition, of any of the
properties or assets of the Company other than in the ordinary course of
business;
(f) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, assets or business
of the Company;
(g) any declaration, setting aside or payment of any dividend
by the Company, or the making of any other distribution in respect of the LLC
Interests, or any direct or indirect redemption, purchase or other acquisition
by the Company of its own securities;
(h) any obligation or liability incurred by the Company to any
of its officers, Members or employees, or any loans or advances made by the
Company to any of its officers,
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Members or employees, except normal compensation and expense allowances payable
to officers or employees;
(i) any change in accounting methods or practices, credit
practices or collection policies used by the Company;
(j) any other transaction entered into by the Company other
than transactions in the ordinary course of business; or
(k) any agreement or understanding whether in writing or
otherwise, for the Company to take any of the actions specified in paragraphs
(a) through (j) above.
13.8 BANKING RELATIONS. All of the arrangements which the Company has
with any banking institution are completely and accurately described in SCHEDULE
2.8 attached hereto, indicating with respect to each of such arrangements the
type of arrangement maintained (such as checking account, borrowing
arrangements, safe deposit box, etc.) and the person or persons authorized in
respect thereof.
13.9 CONTRACTS. Except for the Mortgage, the Tenant Lease and the
Pinpoint Lease, and as set forth on SCHEDULE 2.9, the Company is not subject to
any contracts, commitments, leases or subleases, plans and agreements.
The Company is not in default under any of its contracts, commitments,
leases or subleases, plans or agreements and does not have any knowledge of
conditions or facts which with notice or passage of time, or both, would
constitute a default.
13.10 LITIGATION. There is no currently pending litigation and
governmental or administrative proceedings or investigations to which the
Company is a party.
13.11 COMPLIANCE WITH LAWS. To the Company's knowledge, the Company is
in compliance in all material respects with all applicable statutes, ordinances,
orders, judgements, decrees, rules and regulations promulgated by any federal,
state, municipal entity, agency, court or other governmental authority which
apply to the Company or to the conduct of its business, and the Company has not
received notice of a violation or alleged violation of any such statute,
ordinance, order, rule or regulation.
13.12 INSURANCE. The physical properties and assets of the Company are
insured to the extent disclosed in SCHEDULE 2.12 attached hereto and all such
insurance policies and arrangements are disclosed in said Schedule. Said
insurance policies and arrangements are in full force and effect, all premiums
with respect thereto are currently paid, and the Company is in compliance in all
material respects with the terms thereof. Said insurance is adequate and
customary for the business engaged in by the Company and is sufficient for
compliance by the Company with all requirements of law and all agreements and
leases to which the Company is a party.
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13.13 POWERS OF ATTORNEY. Except as set forth on SCHEDULE 2.13, neither
the Company nor any Member has any outstanding power of attorney.
13.14 FINDER'S FEE. Neither the Company nor any Member has incurred or
become liable for any broker's commission or finder's fee relating to or in
connection with the transactions contemplated by this Agreement.
13.15 CORPORATE RECORDS; COPIES OF DOCUMENTS. The corporate record
books of the Company accurately record all corporate action taken by the Members
in their own capacities and on behalf of the Company. The copies of the
corporate records of the Company, as made available to Buyer for review, are
true and complete copies of the originals of such documents. The Company has
made available for inspection and copying by Buyer and its counsel true and
correct copies of all documents referred to in this Section or in the Schedules
delivered to Buyer pursuant to this Agreement.
13.16 UNIT REPURCHASE. The Company has not redeemed or repurchased any
of its Units.
13.17 PROPERTY. Neither the Company nor any Member has received notice
or is otherwise aware that all or any part of the Property is in violation of
(1) any zoning, subdivision, building, health, traffic, environmental, flood
control or other applicable rules, regulations, ordinances or statutes of any
local, state or federal authorities or any other governmental entity having
jurisdiction over the Property or (2) any outstanding covenants or any
instruments affecting the Property;
(a) No licenses, permits and/or other approvals required for
the ownership of the existing use and operation of the Property or any portion
thereof, have been terminated, suspended or otherwise are not in full force and
effect.
(b) There are no suits, actions, orders, decrees, claims,
writs, injunctions or proceedings pending or, to the best knowledge of the
Company, the Manager or any Member, threatened against the Company or any
Member, or affecting all or any part of the Property or the operation thereof
before any court or administrative agency or officer which, if adversely
determined, would have a material adverse effect upon the operation or
condition, financial or otherwise, of all or any part of the Property.
(c) There are no condemnation proceedings pending, or, to the
best knowledge of the Company or any Member, proposed or threatened against all
or any part of the Property.
(d) Except for the Tenant Lease and the Pinpoint Lease, there
are no leases, agreements or contracts affecting all or any part of the Property
or the use thereof to which the Company or any Member is a party which would not
be terminable at will without penalty from and after the Closing.
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(e) All bills and claims for labor performed and materials
furnished to or for the benefit of the Company or the Members with respect to
the Property will either be paid in full by the Company at or before the Closing
or shall be bonded over by the Company.
(f) The Company has good and marketable fee simple title to
the Property and the Company's title to the Property is not directly or
indirectly derived from any foreclosure proceeding or any proceeding for the
sale of land for the nonpayment of taxes or assessments.
(g) Municipal water and sanitary sewer service are available
on the Property or in the public way abutting the Property.
(h) The Company has not generated, manufactured, refined,
transported, treated, stored, handled, disposed, transferred, produced, or
processed any Hazardous Material or any solid waste at the Property, except in
compliance with all applicable Environmental Laws, has not transported or
arranged for the transport of any Hazardous Material from the Property to
another property, and has no knowledge of the Release or Threat of Release or
any presence of any Hazardous Material on, in, under, or in the vicinity of the
Property. No lien has been imposed on the Property by any governmental agency at
the federal, state, or local level in connection with the presence on or off the
Property of any Hazardous Material. "Environmental Laws" shall mean any
environmental or health and safety-related law, regulation, rule, ordinance, or
by-law at the federal, state, or local level, whether existing as of the date
hereof, previously enforced, or subsequently enacted. "Hazardous Material" shall
mean any pollutant, contaminant, toxic substance, hazardous waste, hazardous
material, or hazardous substance, or any oil, petroleum, or petroleum product,
as defined in or pursuant to the Resource Conservation and Recovery Act, as
amended, the Comprehensive Environmental Response, Compensation, and Liability
Act, as amended, the Federal Clean Water Act, as amended, or any other federal,
state, or local environmental law, regulation, ordinance, rule, or by-law,
whether existing as of the date hereof or previously enforced. "Release" shall
mean any releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing, or dumping into the
environment. "Threat of Release" shall mean a substantial likelihood of a
Release which requires action to prevent or mitigate damage to the environment
which may result from such Release.
(i) The Company is not a foreign corporation, foreign
partnership or foreign estate (as such terms are defined in Section 1445 of the
Internal Revenue Code). The Company shall provide Buyer with an affidavit to
this effect at Closing.
SECTION 14. REPRESENTATIONS AND WARRANTIES OF MEMBERS.
As a material inducement to Buyer and Zoll to enter into this Agreement
and consummate the transactions contemplated hereby, each Member hereby
severally makes to Buyer and Zoll each of the representations and warranties set
forth in this Section 3 with
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respect to such Member. No Member shall have any right of indemnity or
contribution from the Company with respect to the breach of any representation
or warranty hereunder.
14.1 AUTHORITY. Such Member has full right, authority, power and
capacity to enter into this Agreement and each agreement, document and
instrument to be executed and delivered by or on behalf of such Member pursuant
to this Agreement and to carry out the transactions contemplated hereby and
thereby. This Agreement and each agreement, document and instrument executed and
delivered by such Member pursuant to this Agreement constitutes a valid and
binding obligation of such Member, enforceable in accordance with their
respective terms, and such Member has full power and authority to transfer and
deliver the LLC Interests to Buyer pursuant to this Agreement. The execution,
delivery and performance of this Agreement and each such agreement, document and
instrument:
(i) does not and will not violate any laws of the
United States or any state or other jurisdiction applicable to such
Member, or require such Member to obtain any approval, consent or
waiver from, or make any filing with, any person or entity
(governmental or otherwise) that has not been obtained or made; and
(ii) does not and will not result in a breach of,
constitute a default under, accelerate any obligation under, or give
rise to a right of termination of, any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien,
lease, permit, authorization, order, writ, judgment, injunction,
decree, determination or arbitration award to which such Member is a
party or by which the property of such Member is bound or affected, or
result in the creation or imposition of any mortgage, pledge, lien,
security interest or other charge or encumbrance on any assets of the
Company or on the LLC Interests owned by such Member.
14.2 SECURITIES LAWS MATTERS. Each Member hereby represents and
warrants to Zoll that with respect to such Member's receipt of Zoll Common Stock
hereunder:
(a) Each Member is acquiring the Zoll Common Stock for his own
account, for investment, and not with a view to any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"). Each Member is knowledgeable and experienced in the making of investments
of the type involved in the acquisition of the Zoll Common Stock pursuant to the
Agreement, is able to bear the economic risk of loss of its investment in Zoll,
has been granted the opportunity to investigate the affairs of the Zoll and to
ask questions of their officers and employees regarding the business, assets,
liabilities, financial condition, cash flow and operations of Zoll, and has
availed himself of such opportunity either directly or through his authorized
representative; each Member acknowledges that he has made his own independent
examination, investigation, analysis and evaluation of Zoll, including his own
estimation of Zoll's business; each Member acknowledges that he has undertaken
such due diligence as he has deemed adequate. Except as set forth on SCHEDULE
3.2, each Member is an "accredited investor" as defined in the Securities Act;
and
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(b) Each Member understands that because the shares of Zoll
Common Stock have not been registered under the Securities Act nor under
securities or "blue sky" laws of any jurisdiction, he cannot dispose of any or
all of the shares of the Zoll Common Stock unless such Zoll Common Stock is
subsequently registered under the Securities Act or exemption from such
registration is available. Each Member acknowledges and understands he has no
right to require Zoll to register the Zoll Common Stock, except as set forth in
the Registration Rights Agreement among Zoll and the Members of even date
herewith. Each Member further understands that Zoll may, as a condition to the
transfer of any shares of Zoll Common Stock, require that the request for
transfer be accompanied by an opinion of counsel as described below. Each Member
understands that each certificate representing the Zoll Common Stock will bear a
legend in substantially the form provided below (in addition to any legend
required under applicable state securities laws).
THE SHARES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY THE HOLDER
NAMED HEREON FOR THE HOLDER'S OWN ACCOUNT FOR INVESTMENT; AND
SUCH SECURITIES MAY NOT BE PLEDGED, SOLD OR IN ANY OTHER WAY
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF
1933, AS IN EFFECT AT THAT TIME, OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT.
14.3 REPRESENTATION DISCLAIMER. Each Member agrees that neither Buyer
nor Zoll shall be deemed to have made to any Member any representation or
warranty other than those expressly made by Buyer pursuant to Section 4 hereof.
Without limiting the generality of the foregoing, neither Buyer nor Zoll has
made any representation or warranty to any Member with respect to (i) any
projections, estimates or budgets heretofore delivered to or made available to
any Member of future revenues, expenses or expenditures or future results of
operations; or (ii) any other information or documents (financial or otherwise)
made available to any Member, his counsel or accountants or advisors with
respect to Buyer.
SECTION 15. REPRESENTATIONS AND WARRANTIES OF BUYER AND ZOLL.
15.1 MAKING OF REPRESENTATIONS AND WARRANTIES. As a material inducement
to the Company and the Members to enter into this Agreement and consummate the
transactions contemplated hereby, Zoll and the Buyer hereby jointly and
severally make the representations and warranties to the Company and the Members
contained in this Section 4.
15.2 ORGANIZATION. Zoll and Buyer are corporations duly organized,
validly existing and in good standing under the laws of Massachusetts and
Delaware, respectively, with full
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corporate power to own or lease their properties and to conduct their business
in the manner and in the places where such properties are owned or leased or
such business is conducted by them.
15.3 AUTHORITY. Each of Zoll and Buyer have full right, authority and
power to enter into this Agreement, and each agreement, document and instrument
to be executed and delivered by them pursuant to this Agreement and to carry out
the transactions contemplated hereby. The execution, delivery and performance by
Zoll and Buyer of this Agreement, and each such other agreement, document and
instrument have been duly authorized by all necessary corporate action of Zoll
and Buyer, respectively, and no other action on the part of Zoll or Buyer is
required in connection therewith. This Agreement and each other agreement,
document and instrument executed and delivered by Zoll or Buyer pursuant to this
Agreement constitute, or when executed and delivered will constitute, valid and
binding obligations of Zoll and Buyer, respectively, enforceable in accordance
with their terms against the applicable party. The execution, delivery and
performance by Zoll and Buyer, respectively of this Agreement, and each such
other agreement, document and instrument:
(i) does not and will not violate any provision of
the Articles of Organization or By-laws of Zoll or the Certificate of
Incorporation or By-laws of Buyer;
(ii) does not and will not violate any laws of the
United States or of any state or any other jurisdiction applicable to
Zoll and Buyer, respectively, or require Zoll or Buyer to obtain any
approval, consent or waiver of, or make any filing with, any person or
entity (governmental or otherwise) which has not been obtained or made;
and
(iii) does not and will not result in a breach of,
constitute a default under, accelerate any obligation under, or give
rise to a right of termination of any indenture, loan or credit
agreement, or other agreement mortgage, lease, permit, order, judgment
or decree to which Zoll or Buyer is a party and which is material to
the business and financial condition of Zoll and its parent and
affiliated organization, on a consolidated basis.
15.4 LITIGATION. There is no litigation pending or, to its knowledge,
threatened against Zoll or Buyer which would prevent or materially hinder the
consummation of the transactions contemplated by this Agreement.
15.5 FINDER'S FEE. Neither Zoll nor Buyer has incurred or become liable
for any broker's commission or finder's fee relating to or in connection with
the transactions contemplated by this Agreement.
15.6 ZOLL COMMON STOCK. The Zoll Common Stock, when issued pursuant to
this Agreement, will be duly authorized, fully paid and non-assessable.
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SECTION 16. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING.
16.1 SURVIVAL OF WARRANTIES. Each of the representations, warranties,
agreements, covenants and obligations herein or in any schedule, exhibit,
certificate or financial statement delivered by any party to the other party
incident to the transactions contemplated hereby are material, shall be deemed
to have been relied upon by the other party and shall survive the Closing
regardless of any investigation and shall not merge in the performance of any
obligation by either party hereto.
SECTION 17. INDEMNIFICATION.
17.1 INDEMNIFICATION BY MEMBERS. Each Member severally agrees to
indemnify and hold harmless Zoll and Buyer and their respective directors,
officers, agents, affiliates and employees (each a "Zoll Indemnified Party")
from and against any and all claims, actions, suits, liabilities, losses,
damages, and expenses of every nature and character whether accrued, absolute,
contingent or otherwise (including, but not by way of limitation, all reasonable
attorneys' fees incurred by Zoll or Buyer and all amounts paid by it in
settlement of any claim, action, suit or liability) (collectively, a "Claim"),
which arise or result directly or indirectly by reason of:
(i) any error, misstatement or omission in any
representation or warranty made by the Company or any Member in this
Agreement, any Schedule or exhibit hereto, or in any document or
instrument provided for herein or furnished or to be furnished to Zoll
or Buyer in connection with this Agreement;
(ii) any breach of or default in performance of any
of the covenants, agreements or other undertakings of the Company or
any Member;
(iii) any action or inaction by the Company or any
event, circumstance or condition occurring or existing with respect to
the Company on or prior to the Closing;
provided, however, that (A) the indemnification obligation of the Members
hereunder shall be limited to $12,000,000, less any amounts paid to the Zoll
Indemnified Parties pursuant to the indemnification provisions of the Agreement
and Plan of Merger by and among Zoll, Zollsub, Inc., Pinpoint Technologies, Inc.
and the stockholders named therein, dated October 15, 1999 (the "Merger
Agreement") (the "Indemnity Cap"), provided, however, that such limitations
shall not apply to indemnification claims relating to or arising from a breach
of any representation or warranty set forth in Sections 2.3, 2.4, 2.6 and 3.1;
(B) each Member shall only be liable for his pro rata share of the total
indemnification obligation (such pro rata share constituting the equivalent of
each Member's ownership percentage in the Company just prior to the Closing);
and (C) the indemnification obligation hereunder shall terminate twelve (12)
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months after the date such obligation commences, except that Claims relating to
or involving tax matters shall expire on the date three (3) months after the
applicable statute of limitations relating thereto.
17.2 INDEMNIFICATION BY ZOLL. Zoll and Buyer shall indemnify and hold
harmless the Members (each a "Seller Indemnified Party"), from and against any
and all Claims which arise or result directly or indirectly by reason of:
(i) any error, misstatement or omission in any
representation or warranty made by Zoll or Buyer in this Agreement, any
Schedule or Exhibit hereto, or in any document or instrument provided
for herein or furnished or to be furnished to the Members in connection
with this Agreement;
(ii) any breach of or default in performance of any
of the covenants, agreements or other undertakings of Zoll or Buyer; or
(iii) any action or inaction by Zoll or Buyer or any
event, circumstance or condition occurring or existing with respect to
the Company after the Closing (except to the extent any Member is,
under the terms hereof or of any agreement contemplated hereby, liable
or responsible therefor or obligated to indemnify Zoll or Buyer with
respect thereto).
Notwithstanding anything in this Section 6.2 to the contrary, Zoll and
Buyer shall not be required to indemnify Seller Indemnified Parties with respect
to any Claims in an aggregate amount in excess of $12,000,000 less any amounts
paid to a Seller Indemnified Party pursuant to the indemnification provisions of
the Merger Agreement and the indemnification obligation hereunder shall
terminate twelve (12) months after the date such obligation commences.
SECTION 18. MISCELLANEOUS.
18.1 FEES AND EXPENSES.
(a) Each of the parties will bear its own expenses in
connection with the negotiation and the consummation of the transactions
contemplated by this Agreement, and no expenses of the Company or the Members
relating in any way to the purchase and sale of the LLC Interests hereunder and
the transactions contemplated hereby, including without limitation legal,
accounting or other professional expenses of the Company or any Member shall be
charged to or paid by the Company or Buyer.
(b) The Members will pay all costs incurred, whether at or
subsequent to the Closing, in connection with the transfer of the LLC Interests
to Buyer as contemplated by this Agreement, including without limitation, all
transfer taxes and charges applicable to such
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transfer, and all costs of obtaining permits, waivers, registrations or consents
with respect to any assets, rights or contracts of the Company.
18.2 GOVERNING LAW. This Agreement shall be construed under and
governed by the internal laws of the State of Delaware without regard to its
conflict of laws provisions, provided, however, that the parties hereby agree
that the venue for this Agreement shall be in Denver, Colorado.
18.3 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, or if
sent by registered or certified mail, upon the sooner of the date on which
receipt is acknowledged or the expiration of three (3) days after deposit in
United States post office facilities properly addressed with postage prepaid.
All notices to a party will be sent to the addresses set forth below or to such
other address or person as such party may designate by notice to each other
party hereunder:
TO BUYER: Zoll Medical Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TO COMPANY: Pinpoint Properties Management, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: Holland & ▇▇▇▇ LLP
Suite 500
1050 Walnut
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
18.4 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits referred to herein and the other writings specifically identified
herein or contemplated hereby, is complete, reflects the entire agreement of the
parties with respect to the purchase and sale of
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the LLC Interests, and supersedes all previous written or oral negotiations,
commitments and writings, including without limitation, the Letter of Intent
among Pinpoint Technologies, Inc., the Buyer and the Members, dated September 1,
1999. No promises, representations, understandings, warranties and agreements
have been made by any of the parties hereto except as referred to herein or in
such Schedules and Exhibits or in such other writings; and all inducements to
the making of this Agreement relied upon by either party hereto have been
expressed herein or in such Schedules or Exhibits or in such other writings.
18.5 ASSIGNABILITY; BINDING EFFECT. This Agreement shall only be
assignable by Buyer to an affiliate of Buyer upon written notice to the Company
and the Members, and such assignment shall not relieve Buyer of any liability
hereunder. This Agreement may not be assigned by the Members or the Company
without the prior written consent of Buyer. This Agreement shall be binding upon
and enforceable by, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns.
18.6 CAPTIONS AND GENDER. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
18.7 EXECUTION IN COUNTERPARTS. For the convenience of the parties and
to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
18.8 AMENDMENTS. This Agreement may not be amended or modified, nor may
compliance with any condition or covenant set forth herein be waived, except by
a writing duly and validly executed by each party hereto, or in the case of a
waiver, the party waiving compliance.
18.9 PUBLICITY AND DISCLOSURES. No press releases or public disclosure,
either written or oral, of the transactions contemplated by this Agreement,
shall be made by a party to this Agreement without the prior knowledge and
written consent of Buyer and the Company.
18.10 SPECIFIC PERFORMANCE. The parties agree that it would be
difficult to measure damages which might result from a breach of this Agreement
by the Company, the Members, Buyer or Zoll and that money damages would be an
inadequate remedy for such a breach. Accordingly, if there is a breach or
proposed breach of any provision of this Agreement by the Company, the Members,
Buyer or Zoll, the other party shall be entitled, in addition to any other
remedies which it may have, to an injunction, specific performance, or other
appropriate equitable relief to restrain or remedy such breach without having to
show or prove actual damage to the Company, the Members, Buyer or Zoll.
18.11 DISPUTE RESOLUTION. Except with respect to matters as to which
injunctive relief is being sought, in the event of a dispute between the parties
concerning their respective rights
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and obligations under this Agreement, or the breach, termination, negotiation,
or validity hereof and/or the rights or obligations of the parties arising out
of or relating to this Agreement or the breach, termination, negotiation or
validity thereof, in any case that the parties are unable to resolve amicably
between themselves within sixty (60) days of proper notice from one party to
another, such dispute shall be settled by arbitration in Denver, Colorado in an
expedited manner in accordance with the Commercial Rules of the American
Arbitration Association by a panel of three arbitrators. Zoll shall select one
arbitrator, the other party to the dispute shall select one arbitrator, and the
two arbitrators shall in good faith jointly select a third arbitrator. All
arbitrators so selected shall be commercially sophisticated parties with
knowledge of the software industry. The decision of the arbitrators shall be
final and binding upon the parties. Each of the parties consents to the
jurisdiction and venue of the courts of Colorado for the purposes of enforcing
the dispute resolution provisions of this Section 7.11. Each party further
irrevocably waives any objection to proceeding before the American Arbitration
Association based upon lack of personal jurisdiction or to the laying of venue
and further irrevocably and unconditionally waives and agrees not to make a
claim in any court that dispute resolution before the American Arbitration
Association has been brought in an inconvenient forum. Each of the parties
hereto agrees that its or his submission to jurisdiction is made for the express
benefit of the other parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
BUYER:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: President
--------------------------------
ZOLL MEDICAL CORPORATION
By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Vice President and Chief
--------------------------------
Financial Officer
--------------------------------
COMPANY:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Member
--------------------------------
MEMBERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A: List of Members, Stockholdings and Consideration to be Paid
B: Description of the Property
Schedule 2.4 Conflicts
2.7 Absence of Changes
2.8 Banking Arrangements
2.9 Contracts, etc.
2.12 Insurance
2.13 Power of Attorney
3.2 Accredited Investors
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Exhibit A
LIST OF MEMBERS, CAPITAL ACCOUNTS AND CONSIDERATION TO BE PAID
OWNERSHIP OF CAPITAL
NAME AND ADDRESS OF MEMBERSHIP ACCOUNT SHARES OF ZOLL PAYABLE BY
MEMBER INTERESTS BALANCE BUYER
▇▇▇▇▇ ▇▇▇▇▇ 45 $247,500 10,696
▇▇▇▇▇ ▇. ▇▇▇▇▇ 45 $247,500 10,696
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. 10 $ 55,000 2,377
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Exhibit B
▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ of Colorado, also known
by street number ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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