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EXHIBIT 28
ASSET PURCHASE AGREEMENT
DATED AS OF NOVEMBER 30, 1999,
BY AND AMONG
ZILA, INC. ("ZILA"),
INTEGRATED DENTAL TECHNOLOGIES, INC. ("SELLER"),
INFOCURE SYSTEMS, INC. ("BUYER") AND
INFOCURE CORPORATION ("INFOCURE")
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ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the 30th day of November, 1999 (the "Effective Time"), by and among
ZILA, INC., a Delaware corporation ("Zila"), INTEGRATED DENTAL TECHNOLOGIES,
INC., a California corporation (the "Seller"), INFOCURE SYSTEMS, INC., a Georgia
corporation (the "Buyer") and INFOCURE CORPORATION, a Delaware corporation
("InfoCure"). Zila, Seller, Buyer and InfoCure are referred to collectively
herein as the "Parties."
RECITALS:
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A. Seller is engaged, among other businesses, in that certain dental
practice management systems business known as "PracticeWorks" (the "Acquired
Business").
▇. ▇▇▇▇ owns one hundred percent (100%) of the issued and outstanding
shares of the capital stock of Bio-Dental Technologies, Inc. ("Bio-Dental") and
Bio-Dental owns one hundred percent (100%) of the issued and outstanding shares
of the capital stock of Seller, consisting of one hundred thousand (100,000)
shares.
C. On the terms and subject to the conditions set forth herein, the
Parties desire to enter into this Agreement, pursuant to which Buyer will
purchase from Seller and Seller will sell to Buyer, substantially all of
Seller's assets and properties relating to the Acquired Business, and Buyer
agrees to assume certain identified liabilities of Seller relating to the
Acquired Business.
COVENANTS:
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In consideration of the mutual representations, warranties and
covenants and subject to the conditions herein contained, the parties hereto
agree as follows:
1. PURCHASE AND SALE OF THE ASSETS.
1.1. Purchased Assets. On the terms and subject to the conditions
contained in this Agreement, on the Closing Date (as hereinafter defined), Buyer
shall purchase from Seller, and Seller shall sell, assign and deliver to Buyer,
the Purchased Assets (as hereinafter defined), free and clear of all liens,
security interests, options, charges and other restrictions whatsoever
(hereinafter referred to as "Encumbrances") except for the Permitted
Encumbrances referenced in Section 4.6. below. The term "Encumbrances" shall not
be construed to include any claims by a third party for patent and trademark
infringement except to the extent of Seller's representations and warranties
regarding such infringement as set forth in Section 4.9.2.G. The term "Purchased
Assets" shall mean all the assets, properties, rights, titles and interests of
every kind and nature, whether tangible or intangible, and wherever located and
by whomever possessed, related to the Acquired Business as of the Effective Time
(the "Purchased Assets") including, without limitation, all of the following
assets (but excluding all "Excluded Assets" as defined in Section 1.2.):
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1.1.1. All cash and cash equivalents on hand on the Closing Date and in
banks, certificates of deposit, commercial paper, stocks, bonds and other liquid
investments;
1.1.2. All prepayments and prepaid expenses (including,
without limitation, any and all prepaid insurance, lease payments and deposits
and customer deposits) (the "Prepayments");
1.1.3. All inventories, work in process and supplies;
1.1.4. All rights existing under all supply and distribution
agreements and arrangements, sales and purchase agreements and orders (including
unfilled orders for products and services of the Acquired Business), customer
contracts and license agreements, real and personal property leases, license
agreements, consulting agreements, confidentiality and non-disclosure
agreements, including, without limitation, such agreements with current or prior
customers and current or prior employees, agents, officers and directors
("Confidentiality Agreements"), and under all other contracts, agreements and
arrangements, but only to the extent the foregoing are assignable or
transferable to Buyer;
1.1.5. All lists and records pertaining to customer accounts
(whether past or current), suppliers, distributors, personnel and agents and all
other books, ledgers, files, documents correspondence and business records;
provided that Seller shall be given copies of these records upon request, as
such records exist as of the Effective Time;
1.1.6. All claims, deposits, warranties, guarantees, refunds,
causes of action, rights of recovery, rights of set-off and rights of recoupment
of every kind and nature, other than those relating exclusively to Excluded
Assets or Excluded Liabilities (each as defined below);
1.1.7. All Owned Software, all of Seller's interest in
Customer Software, all of Seller's interest in Other Software, all Intangibles
owned by Seller, and all of Seller's interest in all Intangibles not owned by
Seller, as those terms are defined in Section 4.9. hereof, together with all
copies and tangible embodiments of the foregoing (in whatever form or medium and
including, without limitation, all copies of all or any part thereof, in object
code, source code or other format, and in all magnetic or optical media), but
only to the extent the foregoing are assignable or transferable to Buyer;
1.1.8. All, to the extent transferable, permits, licenses,
franchises, orders, registrations, certificates, variances, approvals and
similar rights necessary for the conduct of the Acquired Business obtained from
governments and governmental agencies and all data and records pertaining
thereto;
1.1.9. All insurance, warranty and condemnation proceeds
received after the Closing Date with respect to damage, non-conformances of or
loss to the Purchased Assets;
1.1.10. All rights to receive mail and other communications
addressed to Seller and relating to the Purchased Assets including, without
limitation, accounts receivable payments;
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1.1.11. All fixed assets, furniture, equipment and other
tangible personal property, whether owned, leased or otherwise (including,
without limitation, items which, have been fully depreciated or expensed),
including, without limitation, the assets which are set forth on SCHEDULE 1.1.11
attached hereto;
1.1.12. All books, records, ledgers, files, documents,
correspondence, lists, studies and reports and other printed or written
materials;
1.1.13. All accounts, notes and other receivables, including,
without limitation, all receivables from any current or former employee of
Seller (collectively, the "Receivables"); and
1.1.14. All goodwill as a going concern and associated with
the items listed above (including, without limitation, the goodwill associated
with (i) the items referred to in subsections 1.1.7. and 1.1.8. above and (ii)
all telephone numbers, facsimile numbers and web pages owned and used by Seller
in the Acquired Business).
1.2. Excluded Assets. Notwithstanding the foregoing, the following
assets are expressly excluded from the purchase and sale contemplated hereby
(the "Excluded Assets") and, as such, are not included in the Purchased Assets:
1.2.1. Seller's rights under or pursuant to this Agreement
(including, without limitation, Seller's rights to the Purchase Price);
1.2.2. Seller's general ledger, accounting records, minute
books and corporate seal; provided that Buyer shall be given copies upon request
of the general ledger and accounting records for any calendar year beginning on
or after January 1, 1994, as such documents exist as of the Closing Date;
1.2.3. Any right to receive mail and other communications
addressed to Seller relating exclusively to the Excluded Assets or to all
liabilities other than the Assumed Liabilities (as defined in Section 2.2.
below);
1.2.4. Those assets of Seller which are set forth on SCHEDULE
1.2.4; and
1.2.5. Assets and property of Seller not described in Section
1.1. shall be retained by Seller and shall not be sold, transferred, conveyed or
assigned by Buyer in connection with the sale of the Acquired Business.
2. PURCHASE PRICE; ASSUMPTION OF LIABILITIES.
2.1. Amount of Purchase Price. In consideration for the purchase of the
Purchased Assets, Buyer agrees to assume the Assumed Liabilities and to pay
Seller an amount (the "Base Consideration Amount") equal to Four Million Seven
Hundred Thousand and No/100 Dollars ($4,700,000.00).
The "Purchase Price" shall be equal to the sum of the Assumed
Liabilities and the Base Consideration Amount, subject to adjustment pursuant to
Section 2.1.1. below.
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2.1.1. Net Worth Adjustment. The Purchase Price will be
subject to adjustment as described in this Section 2.1.1. below.
A. Within sixty (60) days after the Effective Time,
Seller will deliver to Buyer a calculation of the net worth of the Acquired
Business as of November 30, 1999 (the "Effective Time Net Worth"). For purposes
hereof, Effect Time Net Worth shall be equal to (i) the total assets of the
Acquired Business as reflected on a balance sheet (the "November 30 Balance
Sheet") of the Acquired Business as of the Effective Time (prepared without
regard to any Excluded Assets) less (ii) the total liabilities of the Acquired
Business as reflected on the November 30 Balance Sheet (prepared without regard
to any Excluded Liabilities).
B. Buyer will have forty-five (45) days from receipt
of the November 30 Balance Sheet to object to the calculation of the Effective
Time Net Worth contained therein by delivering written notice to Seller. If
Seller does not receive notice of an objection within such time, the November 30
Balance Sheet prepared by Seller will be final and binding on the parties. If
Buyer timely notifies Seller of an objection, the parties will have thirty (30)
days from the date of Buyer's notice to resolve the objection. If the parties do
not resolve the objection within such time, either Seller or Buyer may submit
the dispute to Ernst & Young (the "Independent Auditors") for resolution, and
such resolution will be final and binding on the parties. The fees and expense
of the Independent Auditors will be borne by Seller and Buyer in proportion to
the respective differences between their positions submitted to the Independent
Auditors and the final determination of the Independent Auditors.
C. The November 30 Balance Sheet will be prepared on
a basis consistent with the preparation of that certain August 31, 1999 summary
balance sheet of the Acquired Business which has been previously provided to
Buyer.
D. The Purchase Price will be reduced if the
Effective Time Net Worth reflected on the November 30 Balance Sheet is less than
negative Three Hundred Thousand and No/100 Dollars ($300,000.00). The actual
amount of the reduction shall be the amount of such deficiency.
E. The Purchase Price will be increased if the
Effective Time Net Worth reflected on the November 30 Balance Sheet is greater
than negative Three Hundred Thousand and No/100 Dollars ($300,000.00). The
actual amount of the increase shall be the amount of such increase.
F. If there is an adjustment in the Purchase Price
pursuant to this Section 2.1.1., within ten (10) days after final determination
of the adjustment (whether by Buyer's failure to object, agreement of the
parties or determination by the Independent Auditors), Seller or Buyer, as
applicable, will pay the applicable amount by wire transfer of immediately
available funds to the account(s) designated by Seller or Buyer, as applicable.
2.1.2. Escrow Agreement. As security for the indemnities
provided herein by Seller, Seller shall deposit in escrow with the escrow agent
named in the Escrow Agreement attached hereto as EXHIBIT A the cash sum equal to
Four Hundred Seventy Thousand and No/100
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Dollars ($470,000.00) (which shall be deducted from the Base Consideration
Amount referenced in Section 2.1.1. above).
2.2. Assumed Liabilities. Buyer agrees to and shall at the Closing
assume and agree to pay, discharge and perform when lawfully due only those
liabilities, contracts, commitments and other obligations of Seller that are
listed on SCHEDULE 2.2 hereto (the "Assumed Liabilities").
2.3. Excluded Liabilities. Except for the Assumed Liabilities set forth
in Section 2.2., Buyer shall not assume, and shall have no liability for, any
debts, liabilities, obligations, expenses, taxes, contracts or commitments of
the Seller or the Acquired Business of any kind, character or description,
whether accrued, absolute, contingent or otherwise, arising out of any act or
omission occurring or state of facts existing prior to or on the Closing Date
including, but not limited to, all liabilities of Seller for federal, state,
local or foreign taxes attributable to the operations of the Acquired Business
for any taxable year or portion thereof ending prior to the Closing Date,
arising out of the conduct of the Acquired Business prior to the Closing Date
(collectively the "Excluded Liabilities" and individually an "Excluded
Liability"). Seller shall remain fully liable for the Excluded Liabilities.
2.4. Allocation of the Purchase Price. Within a reasonable time after
the November 30 Balance Sheet has been finally determined pursuant to Section
2.1.1., the parties shall execute the Allocation Agreement in the form of
EXHIBIT B (including appropriate adjustment to SCHEDULE 1 thereto).
3. CLOSING.
3.1. Time and Place of the Closing. The closing of the purchase and
sale of the Purchased Assets shall take place at ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., Atlanta, Georgia, on or about December 20, 1999, the second (2nd)
business day following the date on which all conditions to Closing contained in
Sections 8. and 9. have been satisfied or complied with or, if not all
conditions have been satisfied or complied with, all such conditions which have
not been so satisfied or complied with have been waived by the party entitled to
the benefit of such condition. Throughout this Agreement, such event is referred
to as the "Closing" and such date and time are referred to as the "Closing
Date."
The parties agree to use their best efforts to cause all conditions to
Closing to occur on or before December 31, 1999, and, if that is done, then the
Purchased Assets will be deemed to have transferred, and the Assumed Liabilities
will be deemed to have been assumed, as of the beginning of business on December
1, 1999, but all documents shall be dated the actual date the Closing occurs and
all representations, warranties and covenants shall extend to that date.
3.2. Procedure at the Closing. At the Closing, the parties agree to
take the following steps in the order listed below (provided, however, that upon
their completion all such steps shall be deemed to have occurred
simultaneously):
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3.2.1. Seller shall deliver to Buyer a Certificate in the form
of EXHIBIT C hereto, certifying that each of the conditions to the obligation of
Buyer to purchase the Purchased Assets from Seller which is set forth in Section
8. of this Agreement has been satisfied.
3.2.2. Buyer and InfoCure shall each deliver to Seller a
Certificate in the form of EXHIBIT D hereto, certifying that each of the
conditions to the obligations of Seller to sell the Purchased Assets to Buyer
which is set forth in Section 9. in this Agreement has been satisfied.
3.2.3. Seller shall deliver to Buyer such deeds, bills of
sale, endorsements, assignments, lease assignments and estoppel agreements (duly
executed by the lessor under the leases) and other instruments, including a ▇▇▇▇
of Sale in the form of EXHIBIT E hereto, as shall be sufficient to vest in Buyer
good and marketable title to the Purchased Assets, free and clear of all
Encumbrances other than Permitted Encumbrances.
3.2.4. Buyer shall pay to Seller the Purchase Price (less
amounts to be escrowed pursuant to Section 2.1.2.) by wire transfer in
accordance with the Wire Transfer Instructions attached hereto as EXHIBIT F.
3.2.5. Buyer shall deliver to Seller instruments, in the form
of EXHIBIT G hereto, as shall be sufficient to effect the assumption by Buyer of
the Assumed Liabilities.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND ZILA.
In order to induce Buyer to enter into this Agreement and to consummate
the transactions contemplated hereunder, Seller and Zila, jointly and severally,
make the following representations and warranties as of the date hereof and as
of the Closing Date:
4.1. Organization, Power and Authority of Seller. Seller is a
corporation duly organized and legally existing in good standing under the laws
of California and has full corporate power and authority to carry on the
Acquired Business as it is now being conducted, to own and lease the Purchased
Assets, to enter into this Agreement and to carry out the transactions and
agreements contemplated hereby. The Seller is in good standing and authorized to
do business in each jurisdiction in which the character of the Acquired Business
makes such qualification necessary except for such jurisdictions where the
failure to be in such standing and so authorized will not materially adversely
affect the financial condition, business or operations of the Seller or the
ability of the Seller to perform its obligations hereunder.
4.2. No Involvement of Subsidiaries and Affiliates. The Acquired
Business is operated solely by Seller and Seller has never owned or controlled,
and does not own or control, directly or indirectly, any stock, partnership
interest, joint venture interest or other security, equity participation or
interest in any corporation, partnership, trust or other business organization
that performs services for, or conducts business with, the Acquired Business.
4.3. Financial Statements of Seller. Seller has delivered to Buyer the
following financial statements relating to the Acquired Business, copies of
which are attached as SCHEDULE 4.3:
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4.3.1. Audited balance sheets at July 31 of each of the years
1998 and 1999;
4.3.2. Audited statements of income for the years ended July
31, 1998 and August 31, 1999;
4.3.3. Unaudited interim balance sheet at October 31, 1999;
and
4.3.4. Unaudited interim statement of income from August 1,
1999, to October 31, 1999.
The foregoing financial statements (collectively the
"Financial Statements") were prepared in accordance with generally accepted
accounting principles which have been consistently applied through the
respective periods and present fairly the financial condition of the Acquired
Business at each of such balance sheet dates and the results of its operations
for each of the periods covered; provided, however, that the unaudited interim
financial statements are subject to normal year-end adjustments and are without
footnotes and other presentation items.
4.4. Liabilities of Seller. Except as set forth in SCHEDULE 4.4,
Seller has no liabilities, debts, commitments or obligations relating to the
Acquired Business (whether individually or in the aggregate), of any nature,
accrued, absolute, contingent or otherwise, except:
A. The Assumed Liabilities; and
B. Normal liabilities incurred in the ordinary course of
business, in amounts and for terms consistent, individually and in the
aggregate, with Seller's past practices, since October 15, 1999.
4.5. Tax Matters.
4.5.1. Except as set forth on SCHEDULE 4.5.1 Seller has timely
filed all tax returns and reports required to be filed by it, including, without
limitation, all federal, state and local tax returns, and has paid in full or
made adequate provision by the establishment of reserves for all taxes and other
charges which have become due or which are attributable to the conduct of
Seller's Acquired Business or ownership of the Purchased Assets prior to
Closing. Seller will continue to make adequate provision for all such taxes and
other charges for all periods through the Closing Date. Except as set forth on
SCHEDULE 4.5.1 Seller has no knowledge of any tax deficiency proposed or
threatened against Seller. There are no tax liens upon the Acquired Business or
the Purchased Assets.
4.5.2. Except as set forth on SCHEDULE 4.5.2 all taxes and
other assessments and levies which Seller was required by law to withhold or to
collect have been duly withheld and collected, and have been paid over to the
proper governmental entity.
4.5.3. Under its contracts with its customers for sales or
licenses of Seller Software, to the knowledge of Seller, such customers are
liable for any and all sales or use taxes imposed by virtue of or with respect
to such sales or licenses.
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4.6. Real Property.
4.6.1. Seller does not own any real property used by the
Acquired Business.
4.6.2. The leases described in SCHEDULE 4.6 cover all of the
real estate leased, used or occupied by Seller in connection with its Acquired
Business (collectively, the "Real Property"). Except as set forth in SCHEDULE
4.6 the leases described in SCHEDULE 4.6 are in full force and effect and Seller
holds a valid and existing leasehold interest under each of such leases. Seller
has delivered to Buyer complete and accurate copies of such of the leases
described in SCHEDULE 4.6 and none of such leases has been modified, except to
the extent that such modifications are disclosed by the SCHEDULE 4.6.
Seller is not in default and no circumstances exist which
would result in a default, under any of such leases, and to the best knowledge
of Seller, no other party to such leases has the right to terminate, accelerate
performance under or otherwise modify (including upon the giving of notice or
the passage of time) any of such leases. To the best knowledge of Seller, no
lessor under any such lease is in default under any of such leases.
4.6.3. Seller has not assigned, transferred, conveyed,
mortgaged, deeded in trust, granted a security deed, subleased or encumbered any
interest in any of the leaseholds or subleaseholds described in SCHEDULE 4.6.
4.7. Good Title to and Condition of Purchased Assets.
4.7.1. Seller has good and assignable title to all of the
Purchased Assets (other than its interest in its leasehold premises and leased
personal property set forth on SCHEDULE 2.2 and SCHEDULE 4.6), free and clear of
all Encumbrances, except for (i) Encumbrances for current taxes, assessments or
government changes or levies on property not yet due or delinquent or which are
being contested in good faith and for which adequate reserves have been
established or (ii) Encumbrances related to the Assumed Liabilities
(Encumbrances of the type described in clauses (i) and (ii) above are sometimes
referred to as "Permitted Encumbrances") which are set forth in SCHEDULE 4.7.1.
4.7.2. The inventory and supplies of Seller consist of items
of a quality and quantity usable and saleable in the normal course of Seller's
Acquired Business at values in the aggregate at least equal to the values at
which such items are carried on its books. The values of obsolete or slow-moving
inventory and inventory of below standard quality, if any, have been written
down to the lower of cost or realizable market values or have been written off.
The value at which such inventories are carried on the Closing
Date Balance Sheet reflects the normal inventory valuation policies of Seller,
stating inventories at the lower of cost or market, all determined in accordance
with generally accepted accounting principles.
4.7.3. Except as otherwise set forth in this Agreement, the
tangible assets to be sold and transferred hereunder are to be sold and
transferred and are to be accepted by Buyer in an "AS IS" physical condition,
without any representation or warranty whatsoever. EXCEPT AS OTHERWISE SET FORTH
IN THIS AGREEMENT, NEITHER SELLER NOR ZILA MAKES
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ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE
TANGIBLE ASSETS, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION OR WARRANTY
AS TO THE MERCHANTABILITY OF THE TANGIBLE ASSETS OR AS TO THE FITNESS OF THE
TANGIBLE ASSETS FOR ANY PARTICULAR PURPOSE.
4.8. Receivables of Seller. Seller has previously delivered to Buyer a
complete list of all receivables of Seller as of October 31, 1999, including
accounts receivable, notes receivable and insurance proceeds receivable, which
lists are attached hereto as SCHEDULE 4.8. Except for any reserve for bad debts
shown on the Acquired Business' [audited] balance sheet as of August 31, 1999,
all of the receivables listed thereon were, as of the dates as of which the
information is given therein, and as of the Closing Date will be valid accounts
receivable which are or will be current and/or have the aging set forth in
SCHEDULE 4.8 and shall otherwise be subject to the terms of payment as shall
have been agreed upon between Seller and each customer and as have been
disclosed by Seller to Buyer, and, except as set forth on SCHEDULE 4.8, are not
subject to any setoff or adjustment.
4.9. Intellectual Property Rights of Seller.
4.9.1. SCHEDULE 4.9.1 (i) contains a complete list of each
governmental filing, whether federal, state, local, foreign or otherwise,
related to patents, copyrights, trademarks, service marks, trade names,
maskworks, other Intangibles and Software (collectively "Registrations") of
Seller that are related to the Acquired Business; (ii) identifies each pending
Registration of Seller with respect to the Intangibles and Software (defined in
Section 4.9.2.M.) which are related to the Acquired Business; (iii) identifies
all of Seller's applications for or Registrations regarding the Intangibles and
Software which have been withdrawn, abandoned, or have lapsed or been denied;
and (iv) specifies any written legal or regulatory advice to Seller with respect
to such Registration or protectability of the Intangibles and Software which are
related to the Acquired Business, summarizing such advice.
SCHEDULE 4.9.1 also identifies (i) each license agreement or
other written or oral agreement or permission which are related to the Acquired
Business ("License Agreement") and which Seller has granted to any third party
with respect to any of the Intangibles or Software; (ii) each item of the
Intangibles and Software used or possessed by Seller that any third party owns
and the license, sublicense, agreement or other permission in connection
therewith which are related to the Acquired Business (the "Third Party License
Agreement"), together with the term thereof, and all royalties or other amounts
due thereon and (iii) each source code escrow agreement entered into by Seller
and relating to such Intangibles and Software.
Seller has supplied Buyer with correct and complete copies of
all License Agreements and Third Party License Agreements, and except as
specified in SCHEDULE 4.9.1 all License Agreements and Third Party License
Agreements may be assigned to Buyer free of cost or expense without obtaining
the consent or approval of any other person.
Seller has complied with all License Agreements and Third
Party License Agreements, and to the best of Seller's knowledge, all other
parties to such agreements have
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complied with all provisions thereof; and, to the best of Seller's knowledge, no
default or event of default exists under any of the License Agreements or Third
Party License Agreements.
4.9.2.
A. SCHEDULE 4.9.2 is an accurate and complete list
and description (including a name, product description, the language in which it
is written (if known) and the type of hardware platform(s) on which it runs) of
all of the following:
(i) All Software owned by Seller, whether
purchased from a third party, developed by or on behalf of Seller, currently
under development or otherwise ("Owned Software").
(ii) All Software, other than the Owned
Software, related to the Acquired Business and that is either (x) offered or
provided by Seller, directly or through Distributors, to customers of Seller or
(y) used by Seller to provide information or services to customers of Seller for
a fee (collectively, "Customer Software"; the Owned Software and the Customer
Software are collectively referred to as the "Seller Software").
(iii) All Software, other than Seller
Software, related to the Acquired Business that is licensed or marketed to or
from third parties or otherwise used by Seller for any purpose whatsoever
(collectively, "Other Software").
B. To the extent not set forth in SCHEDULE 4.9.1,
SCHEDULE 4.9.2 separately sets forth an accurate and complete list and
description of each copyright, trademark, trademark application or registration,
service ▇▇▇▇, service ▇▇▇▇ application or registration, patent application or
registration, and name and logo included in the Intangibles (as defined below in
this Section) owned, marketed or licensed by Seller related to the Acquired
Business to or from third parties, used or under development by Seller related
to the Acquired Business. SCHEDULE 4.9.2 indicates Seller's ownership of such
items or the source of Seller's right to use such items.
C. No Software other than the Owned Software,
Customer Software and Other Software is required to operate Seller's Acquired
Business as currently conducted and as contemplated by existing Seller Software
product and service plans. To the best of Seller's knowledge, SCHEDULE 4.9.2
identifies all employees and independent contractors who have substantially
contributed to the development of the Owned Software.
D. Except as explained on SCHEDULE 4.9.2, Seller owns
and has good and marketable title to the Owned Software and Intangibles
attributable to the Owned Software, and has the full right to use all of the
Customer Software and Other Software, and Intangibles attributable thereto, as
used or required to operate Seller's Acquired Business as currently conducted,
free and clear of any liens, claims, charges or encumbrances which would affect
the use of such Software in connection with the operation of Seller's Acquired
Business as currently conducted and is not aware of any restrictions to or
claims against Seller's usage of the Owned Software.
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E. No rights of any third party not previously
obtained are necessary to market, license, sell, modify, update, and/or create
derivative works for any Software as to which Seller takes any such action in
its Acquired Business as currently conducted.
F. Except as set forth on SCHEDULE 4.9.2, with
respect to Seller Software which is licensed by Seller to third parties or used
in connection with the providing of services to third parties in the Acquired
Business:
(i) Seller maintains machine-readable
master-reproducible copies, except for source code on Customer Software,
reasonably complete technical documentation and/or user manuals for the most
current releases or versions thereof and for all earlier releases or versions
thereof currently being supported by Seller; and
(ii) Such Seller Software is written in the
language set forth, if known, on SCHEDULE 4.9.2, for use on the hardware set
forth on SCHEDULE 4.9.2 with standard operating systems.
G. Except as set forth on SCHEDULE 4.9.2, with
respect to Owned Software which is licensed by Seller to third parties, the
machine-readable copy substantially conforms to the corresponding source code.
H. To the best of Seller's knowledge, none of the
Software or Intangibles listed on SCHEDULE 4.9.1 or 4.9.2, or their respective
past or current uses by or through Seller, has violated or infringed upon, or is
violating or infringing upon, any Software, patent, copyright, trade secret or
other Intangible of any person. Seller has adequately maintained all trade
secrets and copyrights with respect to the Software. Seller has performed all
obligations imposed upon it with regard to the Customer Software and Other
Software which are required to be performed by it on or prior to the date
hereof, and neither Seller nor, to the knowledge of Seller, any other party, is
in breach of or default thereunder in any respect, nor to Seller's knowledge, is
there any event which with notice or lapse of time or both would constitute a
default thereunder.
I. To the knowledge of Seller, no person is violating
or infringing upon, or has violated or infringed upon at any time, any of
Seller's proprietary rights to any of the Software or Intangibles listed on
either SCHEDULE 4.9.1 or SCHEDULE 4.9.2.
J. None of the Software or Intangibles listed on
SCHEDULE 4.9.1 and SCHEDULE 4.9.2 are owned by or registered in the name of any
of Seller's shareholders, any current or former owner or shareholder, partner,
director, executive, officer, employee, salesperson, agent, customer, contractor
of Seller or its representative nor does any such person have any interest
therein or right thereto, including, but not limited to, the right to royalty
payments. Except as listed on SCHEDULE 4.9.2, Seller has granted no third party
any exclusive rights related to any Owned Software.
K. No litigation is pending and no claim has been
made against Seller or, to the knowledge of Seller, is threatened, which
contests the right of Seller to sell or license to
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any person or entity or use any of the Owned Software, or to the knowledge of
Seller, Customer Software or Other Software. No former employer of any employee
or consultant of Seller has made a claim against Seller or, to the knowledge of
Seller, against any other person, that Seller or such employee or consultant is
misappropriating or violating the Intangibles of such former employer.
L. Seller is not a party to or bound by and, upon the
consummation of the transactions contemplated by this Agreement, Buyer will not
be a party to or bound by (as a result of any acts or agreements of Seller), any
license or other agreement requiring the payment by Seller or its assigns of any
royalty or license payment, excluding such agreements relating to the Customer
Software to the extent such royalty or license payment is expressly set forth on
SCHEDULE 4.9.2.
M. Except as set forth in SCHEDULE 4.9.2, the Owned
Software, Seller's rights in and to the Customer Software and Other Software,
and the information used by Seller, and the Intangibles thereunder, are fully
transferable to Buyer in the manner contemplated in this Agreement (in, object
code, and if applicable, source code forms, including all related documentation,
to the extent that such documentation has been created).
N. Except as set forth on SCHEDULE 4.9.2, the use,
adaptation, modification, reproduction, distribution, sale or exhibition of the
Software will not infringe upon or violate the privacy, publicity or moral
rights of any third party or defame any third party.
O. Except as set forth in SCHEDULE 4.9.2, there is no
income, royalties, damages and payments due at Closing or thereafter with
respect to the Owned Software, Customer Software, Other Software, or other
Intangibles and all other rights thereunder including, without limitation,
damages and payments for past, present or future infringements or
misappropriations thereof, the right to ▇▇▇ and recover for past, present or
future infringements or misappropriations thereof.
P. For purposes of this Agreement, "Software" means
any computer program, operating system, applications system, microcode, firmware
or software of any nature, whether operational, under development or inactive,
including all object code, source code, technical manuals, compilation
procedures, execution procedures, flow charts, programmers notes, user manuals
and other documentation thereof, whether in machine-readable form, programming
language or any other language or symbols and whether stored, encoded, recorded
or written on disk, tape, film, memory device, paper or other media of any
nature.
"Intangible" means:
(i) Patents, patent applications, patent
disclosures, all re-issues, divisions, continuations, renewals, extensions and
continuation-in-parts thereof and improvements thereto;
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(ii) Trademarks, service marks, trade dress,
logos, trade names, and corporate names and registrations and applications for
registration thereof and all goodwill associated therewith;
(iii) Copyrights and registrations and
applications for registration thereof;
(iv) Maskworks and registrations and
applications for registration thereof;
(v) All right, title and interest in all
computer software, data and documentation (including, without limitation,
modifications, enhancements, revisions or versions of or to any of the foregoing
and prior releases of any of the foregoing applicable to any operating
environment);
(vi) Trade secrets and confidential business
information (including ideas, formulas, compositions, inventions, whether
patentable or unpatentable and whether or not reduced to practice, know-how,
manufacturing and production processes and techniques, research and development
information, drawings, flow charts, processes ideas, specifications, designs,
plans, proposals, technical data, copyrightable works, financial, marketing, and
business data, pricing and cost information, business and marketing plans, and
customer and supplier lists and information);
(vii) Other proprietary rights;
(viii) All rights to use all of the
foregoing; and
(ix) All other rights in, to, and under the
foregoing in the United States and Australia.
"Distributor" means Seller and any other person or
entity that has been authorized by Seller to sell, license or offer to sell or
license any Seller Software, other than an employee of Seller. Distributors may
include, without limitation, value added resellers, original equipment
manufacturers, dealers, sales agents, and distributors.
4.9.3. Except as noted in SCHEDULE 4.9.3, the Owned Software
and to the best knowledge of Seller, the Customer Software and Other Software,
are "Millennium Compliant." For the purposes of this Agreement "Millennium
Compliant" means:
A. The functions, calculations, and other computing
processes of the Owned Software, Other Software and Customer Software
(collectively, "Processes") perform in an accurate manner regardless of the date
in time on which the Processes are actually performed and regardless of the date
input to the Owned Software, Other Software, and Customer Software, whether
before, on, or after January 1, 2000, and whether or not the dates are affected
by leap years;
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B. The Owned Software, Other Software, and Customer
Software accept, store, sort, extract, sequence, and otherwise manipulate date
inputs and date values, and return and display date values, in an accurate
manner regardless of the dates used, whether before, on, or after January 1,
2000;
C. The Owned Software, Other Software, and Customer
Software will function without interruptions caused by the date in time on which
the Processes are actually performed or by the date input to the Owned Software,
Other Software, and Customer Software, whether before, on, or after January 1,
2000;
D. The Owned Software, Other Software, and Customer
Software accept and respond to two (2) digit year and four (4) digit year date
input in a manner that resolves any ambiguities as to the century in a defined,
predetermined, and accurate manner;
E. The Owned Software, Other Software, and Customer
Software display, print, and provide electronic output of date information in
ways that are unambiguous as to the determination of the century; and
F. The Owned Software has been tested by Seller and
the Customer Software and Other Software has either been tested by Seller or
Seller has made reasonably appropriate inquiry to determine whether the Owned
Software, Customer Software, and Other Software are Millennium Compliant. Seller
shall deliver the test plans, and results of such tests and inquiries, as
applicable, upon written request from Buyer. Seller shall notify Buyer
immediately of the results of any tests or any claim or other information that
indicates the Owned Software, Customer Software, and Other Software are not
Millennium Compliant.
4.9.4. Without limiting any of the foregoing, to the best
knowledge of Seller, none of Seller's current or former officers, executives,
directors, partners, shareholders, employees, salespersons, customers, or
independent contractors have disclosed to (in the case of trade secrets of
Seller without proper obligation of confidentiality) or otherwise used or
utilized on behalf of any person other than Seller, any trade secrets or
proprietary information, including, without limitation, the source codes for
Seller Software.
All License Agreements, Third Party License Agreements,
software development agreements, and any other written agreement between Seller
and any third party in which trade secrets or confidential information of
Seller, Seller's customers, agents, or suppliers are disclosed by Seller binds
the recipient thereof to take reasonable steps to protect the proprietary rights
of Seller and its customers, agents, and suppliers in such trade secrets and
confidential information.
4.9.5. Seller Software:
A. Performs in accordance with all published
specifications for such Seller Software;
B. Complies with all other published documentation,
descriptions and literature prepared or published by Seller, in the case of
Owned Software, or, to the best of
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Seller's and Zila's Knowledge, by the original licensor, in the case of Customer
Software with respect to such Seller Software; and
C. Complies with all representations, warranties and
other requirements specified in all of Seller's License Agreements.
4.9.6. Except as set forth on SCHEDULE 4.9.6, none of Seller's
shareholders have an ownership right or other interest in any Software or
Intangibles related to the Acquired Business, and no claims have been made or,
to the knowledge of the Seller, is threatened, that the Seller Software
substantially fails to perform as set forth in Section 4.9.5.
4.9.7. Except as set forth on SCHEDULE 4.9.7, all Seller's
contracts with customers in the Acquired Business (collectively "Customer
Contracts") for specific customers, whether completed or outstanding, were or
are evidenced by written agreements containing provisions reasonably equivalent
to those contained in SCHEDULE 4.9.7 hereto, with only such changes as would not
affect the rights of Buyer as assignee thereof and would not impose on Buyer, as
assignee thereof, any additional obligations.
Except as set forth on SCHEDULE 4.9.7, no Customer Contract
provided for the transfer to the customer therein of any Intangibles relating to
Seller Software as to which Seller thereafter shall have no further rights. No
current Customer Contract provides that the customer therein shall be entitled
to sublicense or otherwise transfer to a third party any of the Intangibles
relating to Seller Software unless such third party agrees to be bound by the
confidentiality provisions thereof and agrees to pay Seller royalties and other
amounts comparable to those under such Customer Contract.
Except as set forth on SCHEDULE 4.9.7, each past or present
customer of Seller and each past or present customer of Seller to whom Seller
disclosed any of the Intangibles relating to Seller Software is bound by a
confidentiality provision which requires such past or present customer to take
reasonable steps to protect the rights of Seller in the Intangibles relating to
Seller Software.
4.10. Adequacy of Purchased Assets. The Purchased Assets constitute, in
the aggregate, all of the property necessary for the conduct of the Acquired
Business in the manner in which and to the extent to which it is currently being
conducted.
4.11. Contracts; Insurance; Customers.
4.11.1. SCHEDULE 4.11 accurately and completely sets forth a
true and complete list of all of the contracts of Seller which are material
(solely for purposes of this Section 4.11., a contract shall be "material" if
(i) the contract is not cancelable on thirty (30) days or less notice without
payment of a penalty in excess of Ten Thousand and No/100 Dollars ($10,000.00)
or (ii) include the committed future expenditure by Seller in any twelve (12)
month period of at least Ten Thousand and No/100 Dollars ($10,000.00)) to the
Purchased Assets or the Acquired Business (the "Material Contracts").
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The contracts listed on SCHEDULE 4.11 together with the
License Agreements and Third Party License Agreements listed on SCHEDULE 4.9.1
are referred to herein as the "Material Contracts."
Seller has previously furnished Buyer with a true and complete
copy of each such agreement, contract or commitment listed in SCHEDULE 4.11.
There has not been any default in any obligation to be performed by Seller, nor
to the best knowledge of Seller, any other party, under any such agreement,
contract or commitment. Except as set forth on SCHEDULE 4.9.1 and SCHEDULE 4.11,
Seller is not a party to or bound by any other Material Contracts.
All Material Contracts have been entered into in the ordinary
course of business, are on normal and reasonable commercial terms.
4.11.2. Seller carries insurance, which is customary in scope
and reasonable in character and amount, with reputable insurers, covering all of
the assets and properties relating to the Acquired Business, and it has provided
all required performance or other surety bonds.
All premiums and other payments which become due under the
policies of insurance listed in SCHEDULE 4.11.2 have been paid in full and, to
the extent relating to periods prior to the Closing Date, will be paid in full
on or prior to the Closing Date. All of such policies are now in full force and
effect and Seller has received no notice from any insurer, agent or broker of
the cancellation of, or any increase in premium with respect to, any of such
policies or bonds. No insurer has the right to make retrospective premium
adjustments with respect to any of such policies.
Except as set forth in SCHEDULE 4.11.2, Seller has received no
notification from any insurer, agent or broker denying or disputing any claim
made by Seller or denying or disputing any coverage for any such claim or the
amount of any claim. Except as set forth in SCHEDULE 4.11.2, Seller has no claim
against any of its insurers under any of such policies pending or anticipated
and there has been no occurrence of any kind which would give rise to any such
claim.
4.11.3. SCHEDULE 4.11.3 sets forth a complete list of all of
Seller's current Acquired Business customers (defined as having received
products or services from Seller within the last three (3) years).
4.12. Litigation Involving Seller. Except as set forth on
SCHEDULE 4.12, there are no actions, suits, claims, governmental
investigations or arbitration proceedings pending or, to the best knowledge of
Seller, threatened against or affecting Seller or any of its assets or
properties with respect to or relating to (i) the Acquired Business; (ii) the
ownership or operation of the Purchased Assets or (iii) the transactions
contemplated by this Agreement. There are no outstanding orders, decrees or
stipulations issued by any federal, state, local or foreign judicial or
administrative authority in any proceeding to which Seller is or was a party and
which relates to (i) the Acquired Business; (ii) the ownership or operation of
the Purchased Assets or (iii) the transactions contemplated by this Agreement.
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4.13. No Adverse Change. Since October 31, 1999, all changes in the
business or properties relating to the Acquired Business, or in its financial
condition, including changes occurring in the ordinary course of business, have
not had or will not have an adverse effect on the business, properties,
financial condition, business prospects or operating results of the Acquired
Business. There is not, to the best knowledge of Seller, any threatened event or
condition of any character whatsoever which could adversely affect the assets,
properties, business, financial condition or results of operations of the
Acquired Business.
4.14. Absence of Certain Acts or Events. Except as disclosed in
SCHEDULE 4.14, since the October 31, 1999, with respect to the Acquired
Business, Seller has not:
A. Sold or transferred any of its assets other than in the
ordinary course of business;
B. Made or obligated itself to make capital expenditures
aggregating more than Ten Thousand and No/100 Dollars ($10,000.00);
C. Incurred any material obligations or liabilities (including
any indebtedness) or entered into any material transaction, except for this
Agreement and the transactions contemplated hereby; or
D. Suffered any theft, damage, destruction or casualty loss in
excess of Five Thousand and No/ 100 Dollars ($5,000.00).
4.15. Compliance With Laws by Seller. Seller is in material compliance
with all laws, regulations and orders applicable to the Purchased Assets or the
Acquired Business. Seller has not received notification of any asserted past or
present failure to comply with any such laws, regulations and orders.
4.16. Employment and Labor Matters.
4.16.1. SCHEDULE 4.16 lists all employees and agents who on
the date hereof perform services on a regular basis in the Acquired Business
operations of or for Seller. No such employee or agent has terminated or given
notice of termination of his employment as of the date hereof, nor, to the
knowledge of Seller, plans to refuse employment with Buyer after the Closing
Date.
A. Prior to the Closing Date, Buyer may offer
employment to commence on the Closing Date to any or all of the employees of
Seller related to the Acquired Business as it may determine. Buyer shall have
full and absolute discretion in determining the terms, conditions and benefits
relating to such employment. Nothing in this Agreement shall obligate Buyer or
InfoCure to employ after the Closing Date any employee of Seller or to offer
employment to any employee of Seller on the same terms or conditions or with the
same benefits offered by Seller. Nothing in this Agreement shall create any
claim or right on the part of any employee of Seller and no such employee shall
be entitled to assert any claim or right hereunder. Seller agrees to reasonably
cooperate with buyer in connection with any notices required by law including,
without limitation, the ▇▇▇▇▇▇ Act and its state law equivalent and regarding
any
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written communications made to the employees of Seller during the period from
the date hereof until the Closing Date which relate to the transactions
contemplated by this Agreement.
B. Seller and Buyer agree that the employees hired by
Buyer ("Employee) will be entitled to maintain health coverage through Seller's
existing group health plan(s) (not including any flexible spending arrangements
which constitute a group health plan, but including other medical and dental
coverages) through COBRA (as defined below) continuation coverage under such
plan through 12:01 a.m. on February 1, 2000 (the "COBRA Premium Payment End
Date"). To the extent that an Employee and his or her dependents is entitled to
a right to receive continuation coverage available pursuant to, and as required
under the provisions of, ERISA Sections 601 through 608 and Code Section
4980B ("COBRA") under the Seller's group health plan and/or the Seller's group
dental plan, if such Employee and his or her dependents exercises such right in
accordance with COBRA and the terms and provisions of such group health and/or
dental plan, the Buyer shall, solely during the period beginning with the
Closing Date and ending on the COBRA Premium Payment End Date, but not
thereafter, subsidize the COBRA premium required to be paid by such Employee
(and/or his or her dependents) for such continuation coverage by paying an
amount directly to the Employee (in a timely manner so that the Employee may
timely pay his required COBRA premium) such that when such amount is added to
the amount which would have been required to be paid by the Employee for the
coverage he or she had in place under Seller's group health plan immediately
prior to the Closing, the aggregate amount is equal to the COBRA premium
required to be paid by such Employee and his or her dependents (but, in no event
greater than the actual COBRA premium. The Employee and his or her dependents
shall remain completely responsible for timely paying any additional amount
required under COBRA, so that the total amount paid equals the COBRA premium.
This COBRA premium subsidy by the Buyer shall be provided from the Closing
through the COBRA Premium Payment End Date, but not thereafter, and is intended
to ensure that the Employees and their dependents have the ability to remain
covered under the Seller's group health and dental plans through 12:01 a.m.
February 1, 2000, by paying a monthly premium amount equal to the amount they
were paying prior to the Closing, and is not intended to alter the Seller's
group health plan(s) in any manner.
C. Seller shall remain liable for all "Seller
Employee Liabilities," regardless of when or how such liability arose, and
regardless of whether such liability may result in or has resulted in a claim
upon the Purchased Assets. For purposes of the preceding sentence, the term
"Seller Employee Liabilities" shall mean any claims, liabilities, costs,
expenses or compensation which exist, which arise by reason of, or which are in
any way connected with or based on (i) an employee's employment relationship
with Seller and/or the termination of such relationship; (ii) foreign, federal,
state, county or municipal fair employment practices act and/or any law,
ordinance or regulation promulgated by any foreign, federal, state, county,
municipality or other state subdivision as applied to employees of Seller; (iii)
interference with and/or breach of contract with employees of Seller; (iv)
retaliatory or wrongful discharge of any employee of Seller; (v) intentional or
negligent infliction of emotional distress or mental anguish upon employees of
Seller; (vi) outrageous conduct with respect to employees of Seller; (vii)
interference with business relationships, contractual relationships or
employment relationships involving employees of Seller and any third party;
(viii) breach of duty, fraud, fraudulent inducement to contract, breach of right
of privacy, libel, slander, or tortuous conduct of any kind
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with respect to employees of Seller; (ix) violations of Title VII of the Civil
Rights Act of 1964 and/or the Civil Rights Act of 1991 and/or 42 U.S.C. Section
1981 with respect to employees of Seller; (x) violations of the Age
Discrimination in Employment Act of 1967, the Age Discrimination Claims
Assistance Act of 1988 and/or the Older Workers' Benefit Protection Act with
respect to employees of Seller; (xi) violations of state or federal handicap or
disability discrimination laws or acts, including, but not limited to, the
Rehabilitation Act of 1973 and the Americans with Disabilities Act with respect
to employees of Seller; (xii) discriminatory or wrongful acts against employees
of Seller; (xiii) violations of ERISA or the Family and Medical Leave Act with
respect to employees of Seller; (xiv) violations of the workers' compensation
laws of any state or other jurisdiction; (xv) violations of any other federal,
state, county or municipal law or regulation with respect to employees of
Seller.
4.16.2. To the best knowledge of Zila and Seller, Seller has
complied, in all material respects, with all applicable federal, state and local
laws, rules and regulations and ordinances respecting health, safety and working
conditions of its employees, including, without limitation, the Occupational
Safety and Health Act of 1970, Pub. L. 91-596, as amended, and all similar
applicable federal, state and local laws, rules, regulations and ordinances, and
has provided Buyer with copies of all reports filed and notices provided under
any such laws, rules, regulations and ordinances during the last five (5) years.
To the best knowledge of Zila and Seller, Seller's operations
do not involve any unusual risk to the health or safety of its employees
(including, without limitation, any risk associated with hazardous airborne
contaminants or hazardous chemicals or waste materials).
4.16.3. To the best knowledge of Zila and Seller, Seller is
not a party to any agreement, contract or arrangement, written or oral,
providing for any payments to any person resulting from the consummation of the
transactions contemplated hereby, except for payments to holders of shares of
Seller's capital stock. Seller's obligation to make any such payments shall
constitute Excluded Liabilities.
4.17. Employee Benefits Matters.
4.17.1. SCHEDULE 4.17.1 sets forth a complete and accurate
listing and description of all plans, agreements, arrangements, commitments,
policies or understandings of any kind (whether written or oral) related to the
Acquired Business (i) which relate to present or former employees, retirees, or
independent contractors (or their beneficiaries, dependents or spouses) of
Seller and of the Acquired Business and (ii) which are currently, were within
the last seven (7) years, or are expected to be, adopted, maintained by,
sponsored by, or contributed to by, Seller, any of its predecessors in interest
or any ERISA Affiliate of Seller, or as to which Seller, any of its predecessors
in interest or any ERISA Affiliate of Seller has any ongoing liability or
obligation whatsoever, including, but not limited to, all employee benefit plans
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), deferred compensation, early retirement, incentive,
profit-sharing, thrift, stock ownership, stock appreciation, bonus, stock
option, stock purchase, welfare, nonqualified benefit, and fringe benefit plans
as defined in Section 6039D of the Internal Revenue Code of 1986, as amended
(the "Code") (hereinafter, such plans, agreements, etc., are referred to as the
"Plan" or "Plans"). For
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purposes of this Agreement, the term ERISA Affiliate of Seller shall mean any
other entity or person whose employees would, along with the employees of
Seller, be treated as employed by a single employer under Code Sections
414(b), (c), (m) or (o), and/or under Sections 210 and/or 4001 of ERISA. Seller
has provided to Buyer true, correct and complete copies of all documents
relating to the Plans which it has requested, with all amendments, modifications
and supplements thereto, including, without limitation, all plan texts (and
amendments thereto), all trust agreements (if any), all insurance and annuity
contracts (if any), all summary plan descriptions and annual reports (if any)
for the most recent three (3) years, and all correspondence with the IRS or the
U.S. Department of Labor concerning such Plans.
A. Seller, its predecessors in interest and all ERISA
Affiliates of Seller have complied in all respects with all of their respective
obligations under applicable law (including the Code and ERISA) with respect to
the Plans, and have maintained the Plans in compliance with all applicable laws
and regulations.
B. Neither Seller nor any ERISA Affiliate of Seller
contributes to, ever has contributed to, or ever has been required to contribute
to any pension plan (as defined in ERISA Section 3(35)), any pension plan (as
defined in ERISA Section 3(2) subject to the minimum funding standards of Code
Section 412 and/or any multi-employer plan (as defined in ERISA Section
3(37)(A)), and neither Seller nor any ERISA Affiliate of Seller has any
liability (including withdrawal liability) under or with respect to any pension
plan and/or multi-employer plan.
C. There is no liability of Seller or any ERISA
Affiliate of Seller with respect to any Plan which could result in the
imposition of any liability being imposed upon Buyer or InfoCure after the
Closing of the transactions contemplated by this Agreement, including, but not
limited to, any minimum funding liability under ERISA Section 302 or Code
Section 412, any plan termination liability under ERISA Sections 4041,
4042, 4062, 4068 and/or 4069, multi-employer plan liabilities under ERISA
Sections 4201-4205 or 4212, COBRA liability under Code Section 4980B or
ERISA Sections 601 through 608.
D. The parties hereto agree that InfoCure and Buyer
shall have no liability with respect to any
Plan.
4.17.2. With respect to each Plan to the extent applicable:
A. No litigation or administrative or other
proceeding is pending or threatened involving such Plan.
B. To the best knowledge of Seller, such Plan has
been administered and operated in substantial compliance with, and has been
amended to comply with all applicable laws, rules, and regulations, including,
without limitation, ERISA, the Internal Revenue Code, and the regulations issued
under ERISA and the Internal Revenue Code.
C. Seller has made and as of the Closing Date will
have made or accrued, all payments and contributions required, or reasonably
expected to be required, to be made under the provisions of such Plan or
required to be made under applicable laws, rules and
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regulations, with respect to any period prior to the Closing Date, such amounts
to be determined using the ongoing actuarial and funding assumptions of the
Plan.
D. Such Plan is and on the Closing Date will be fully
funded in an amount sufficient to pay all liabilities accrued (including
liabilities and obligations for health care, life insurance and other benefits
after termination of employment) and claims incurred to the date hereof and to
the Closing Date, or the Closing Date Balance Sheet contains adequate reserves
or paid-up insurance has been provided, therefor.
E. Such Plan has been administrated and operated only
in the ordinary and usual course and in accordance with its terms, and there has
not been in the four (4) years prior hereto any increase in the liabilities of
such Plan beyond increases typically experienced by employers similar to Seller.
4.17.3. The parties hereto agree that Buyer and InfoCure shall
have no liability with respect to any "Seller Controlled Group Plan." The
preceding sentence applies to any liability (herein "Seller Controlled Group
Plan Liabilities") with respect to a "Seller Controlled Group Plan," regardless
of when or how such liability arose, regardless of whether such liability
involves employees of the Acquired Business, and regardless of whether such
liability may result in or has resulted in a claim upon the assets purchased
under this Agreement. For purposes of this Agreement, the term "Seller
Controlled Group Plan" shall mean each and every plan, agreement, arrangement,
commitment, policy or understanding of any kind (whether written or oral) (i)
which relate to present or former employees, directors, retirees, or independent
contractors (or their beneficiaries, dependents or spouses) of the Seller or
(ii) which are currently, were, or are expected to be, adopted, maintained by,
sponsored by, or contributed to by, the Seller, any of its predecessors in
interest or any ERISA Affiliate of the Seller, or as to which the Seller, any of
its predecessors in interest or any ERISA Affiliate of the Seller has any
ongoing liability or obligation whatsoever, including, but not limited to,
employee benefit plans as defined in ERISA Section 3(3), deferred compensation,
early retirement, incentive, profit-sharing, thrift, stock ownership, stock
appreciation, bonus, stock option, stock purchase, welfare, nonqualified
benefit, and fringe benefit plans as defined in Code Section 6039D.
4.18. Due Authorization; Binding Obligation. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by necessary corporate action of
Seller. This Agreement has been duly executed and delivered by Seller and is a
valid and binding obligation of Seller, enforceable in accordance with its
terms.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will:
A. Conflict with or violate any provision of the articles of
incorporation or bylaws of Seller, or of any law, ordinance or regulation or any
decree or order of any court or administrative or other governmental body which
is either applicable to, binding upon or enforceable against Seller; or
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B. Result in any breach of or default under any mortgage,
contract, agreement, indenture, will, trust or other instrument which is either
binding upon or enforceable against Seller or the assets and properties of
Seller.
Without limiting the generality of the foregoing, Seller is not a party
to any continuing agreement or understanding, made by it or on its behalf, which
limits in any way the ability of:
A. Seller to enter into this Agreement and perform its
obligations hereunder;
B. Seller to sell the Purchased Assets to Buyer, all on the
terms and subject to the conditions set forth herein; or
C. Seller to consummate the transactions contemplated hereby,
nor has Seller breached any such agreement, which breach would entitle the other
party thereto to any equitable or monetary remedies.
4.19. Consents and Approvals. Except as set forth in SCHEDULE 4.19, no
consent, authorization or approval of, or exemption by, or filing with, any
governmental, public or self-regulatory body or authority (a "Governmental
Agency") or any other third party, including, without limitation, the licensors
of any Software, is required in connection with the execution, delivery and
performance by Seller of this Agreement or the consummation of the transactions
contemplated hereby or thereby or for the continuation by Buyer of the Acquired
Business of Seller after the Closing in the same manner as presently conducted
or proposed to be conducted.
4.20. Accuracy of Information Furnished by Seller. No representation,
statement or information in writing made or furnished by Seller to Buyer,
including, without limitation, those contained in this Agreement and the various
schedules attached hereto and the other information and statements previously
furnished by Seller to Buyer in writing, contains or shall contain any untrue
statement of a material fact or omits or shall omit any material fact necessary
to make the information contained therein in light of circumstances in which
they were made, not misleading.
4.21. Books and Records. The books of account and other financial
records to be transferred to Buyer pursuant hereto are complete and correct, are
maintained in accordance with all applicable laws, and are accurately reflected
in the Financial Statements.
5. REPRESENTATIONS AND WARRANTIES OF BUYER.
In order to induce Seller to enter into this Agreement and consummate
the transactions contemplated hereunder, Buyer makes the following
representations and warranties:
5.1. Organization, Power and Authority of Buyer. Buyer is a corporation
duly organized and validly existing under the laws of the State of Georgia, with
full corporate power and authority to enter into this Agreement and to carry out
the transactions and agreements contemplated hereby.
5.2. Due Authorization; Binding Obligation. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly
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authorized by all necessary corporate actions of Buyer. This Agreement has been
duly executed and delivered by Buyer and is a valid and binding obligation of
Buyer, enforceable in accordance with its terms.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will:
A. Conflict with or violate any provision of the articles of
incorporation or bylaws of Buyer or of any decree or order of any court or
administration or other governmental body which is either applicable to, binding
upon or enforceable against Buyer; or
B. Result in any breach of or default under any mortgage,
contract, agreement, indenture, will, trust or other instrument which is either
binding upon or enforceable against Buyer.
5.3. Litigation. There are no action, suits, or proceedings at law or
in equity or by or before any governmental instrumentality or other agency now
pending or, to the knowledge of Buyer threatened, against Buyer which could have
a material adverse effect on the ability of Buyer to consummate the transactions
contemplated hereby.
5.4. No Brokers. Except for ▇▇▇▇ ▇▇▇▇▇▇ who has been retained by Buyer,
neither Buyer nor any of its affiliates has employed or is subject to the valid
claim of any broker, finder, consultant or other intermediary in connection with
the transactions contemplated by this Agreement who will be entitled to a fee or
commission in connection with such transactions.
6. ADDITIONAL COVENANTS OF SELLER.
6.1. Best Efforts. Each of Zila and Seller will use its respective best
efforts to cause to be satisfied, as soon as practicable and prior to the
Closing Date, all of the conditions set forth in Section 8. to the obligation of
Buyer to purchase the Purchased Assets.
6.2. Conduct of Acquired Business Pending the Closing. From and after
the execution and delivery of this Agreement and until the Closing Date, except
as otherwise provided by the prior written consent of Buyer:
6.2.1. Seller will: (i) conduct the Acquired Business and its
operations in the manner in which the same have heretofore been conducted; (ii)
preserve its business organization intact; (iii) use its best efforts to keep
available the services of its officers, employees, agents and distributors and
(iv) use its best efforts to preserve its relationships with customers,
suppliers and others having dealings with Seller;
6.2.2. Seller will maintain all of its properties in customary
repair, order and condition, reasonable wear and use and damage by unavoidable
casualty excepted, and to maintain insurance of such types and in such amounts
upon all of its properties and with respect to the conduct of its Acquired
Business as are in effect on the date of this Agreement;
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6.2.3. Seller will: (i) not sell or transfer any of its assets
other than in the ordinary course of business consistent with past practices or
(ii) not incur any material obligations or liabilities or enter into any
material transaction, contract, arrangement or agreement without the prior
written consent of Buyer; and
6.2.4. Seller will not increase the compensation payable or to
become payable to any director, officer, employee or agent of Seller, make any
profit-share payment or other arrangement (whether current or deferred) to or
with any director, officer, employee or agent, hire any employee, officer or
director, consultant, or agent without the prior written approval of Buyer.
6.3. Access to Acquired Business' Properties and Records. From and
after the execution and delivery of this Agreement, Seller will afford to the
representatives of Buyer access, during normal business hours and upon
reasonable prior notice, to Seller's premises sufficient to enable Buyer to
inspect the assets and properties of the Acquired Business, and Seller will
furnish to such representatives during such period all such information relating
to the foregoing investigation as Buyer may reasonably request; provided,
however, that any furnishing of such information to Buyer and any investigation
by Buyer shall not affect the right of Buyer to rely on the representations and
warranties made by Seller in or pursuant to this Agreement, and, provided
further that Buyer will hold in confidence all documents and information
concerning Seller so furnished.
6.4. Preservation of and Access to Books and Records. Seller and Zila
agree that they shall preserve and keep all books and records of the Acquired
Business and all information relating to the accounting, business, financial and
tax affairs of the Acquired Business in existence on the Closing Date or which
come into existence after the Closing Date, but relate to the Acquired Business
prior to the Closing Date for a period of six (6) years thereafter, or for any
longer period (i) as may be required by any federal, state, local or foreign
governmental body or agency; (ii) as may be reasonably necessary with respect to
the prosecution or defense of any audit, suit, action, litigation or
administrative arbitration or other proceeding or investigation that is then
pending or threatened or (iii) that is equivalent to the period established by
any applicable statute of limitations (or any extension or waiver thereof) with
respect to matters pertaining to taxes. Seller and Zila agree not to destroy any
books, records or other documents containing such information without the prior
written consent of Buyer.
Seller and Zila shall afford to Buyer and its employees, counsel and
other authorized representatives, at no charge, (i) complete access, at all
reasonable times to the books and records of the Acquired Business and all
information relating to such accounting, business, financial or tax affairs
relating to the Acquired Business, concerning (x) any matter relating to this
Agreement or (y) any business of the Acquired Business prior to the Closing and
(ii) the reasonable services of Seller's and Zila's employees to assist Buyer
with respect to such matters.
6.5. Securities and Exchange Commission Compliance. Zila and Seller
have filed all forms, reports and documents required to be filed with the
Securities and Exchange Commission (the "SEC") as of the Closing Date which
relate to the Acquired Business.
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6.6. Supplements to Schedules. Prior to the Closing Date, Seller will
promptly supplement or amend the Schedules with respect to any matter hereafter
arising which, if existing or occurring at the date of this Agreement, would
have been required to be set forth or described in the Schedules. For purposes
of determining the accuracy of representations and warranties of Seller
contained in Article 4. for the purpose of determining the fulfillment of the
conditions set forth in Section 12.1. (but not for purposes of the
indemnifications set forth in Article 11. for which the Schedules shall be
deemed to include all information contained in any supplement or amendment), the
Schedules delivered by Seller shall be deemed to include only that information
contained therein on the date of this Agreement and shall be deemed to exclude
any information contained in any subsequent supplement or amendment thereto.
7. ADDITIONAL COVENANTS OF BUYER AND INFOCURE.
7.1. Best Efforts. Each of Buyer and InfoCure will use its respective
best efforts to cause to be satisfied, as soon as practicable and prior to the
Closing Date, all of the conditions set forth in Section 9. to the obligation of
Seller to sell the Purchased Assets pursuant to this Agreement.
7.2. Consent. Each of the parties hereto will use its commercially
reasonable efforts and shall fully cooperate with each other party to make
promptly all registrations, filings and applications, give all notices and
obtain all governmental and third party consents, permits, approvals, orders,
authorities, qualifications, and waivers necessary for the consummation of the
transactions contemplated by this Agreement or that thereafter may be necessary
to effectuate the transfer or renewal of any other license, approval or
authorization.
7.3. Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use its commercially reasonable
efforts to take, or cause to be taken all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement. From time to time, after the date hereof, without further
consideration, Seller will execute and deliver such documents to Buyer as Buyer
may reasonably request in order to more effectively vest in Buyer title to the
Purchased Assets.
7.4. Cooperation in Litigation.
A. Buyer agrees to take commercially reasonable actions
necessary to make former employees of the Acquired Business available to Seller
after the Closing Date with respect to any action, suit, proceeding or
investigation to which Seller or Zila is a party or is otherwise involved with
regard to the Acquired Business whether commenced before or after the Closing
Date. Seller agrees to reimburse Buyer for reasonable out-of-pocket expenses
(but not labor charges) incurred by Buyer in connection with requests by Seller
pursuant to this Section 7.4.
B. Seller and Buyer shall cooperate, to the extent reasonably
requested by either of them, in the handling and disposition of any actions,
whether or not listed on the
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Schedules and whether or not pending or threatened prior to the Closing, that
arise out of or are related to any event or occurrence with respect to the
Acquired Business prior to the Closing.
7.5. Preservation of and Access to Books and Records. Buyer agrees that
it shall preserve and keep all books and records of the Acquired Business and
all information relating to the accounting, business, financial and tax affairs
of the Acquired Business in existence on the Closing Date or which come into
existence after the Closing Date, but relate to the Acquired Business prior to
the Closing Date for a period of six (6) years thereafter, or for any longer
period (i) as may be required by any federal, state, local or foreign
governmental body or agency; (ii) as may be reasonably necessary with respect to
the prosecution or defense of any audit, suit, action, litigation or
administrative arbitration or other proceeding or investigation that is then
pending or threatened or (iii) that is equivalent to the period established by
any applicable statute of limitations (or any extension or waiver thereof) with
respect to matters pertaining to taxes. Buyer agrees not to destroy any books,
records or other documents containing such information without the prior written
consent of Zila.
Buyer shall afford to Zila and its employees, counsel and
other authorized representatives, at no charge, (i) complete access, at all
reasonable times to the books and records of the Acquired Business and all
information relating to such accounting, business, financial or tax affairs
relating to the Acquired Business, concerning (x) any matter relating to this
Agreement; (y) any business of the Acquired Business prior to the Closing or (z)
other business of Seller where Acquired Business information is required and
(ii) the reasonable services of Buyer's employees to assist Seller or Zila with
respect to such matters.
7.6. Confidentiality. Buyer agrees that any information contained in
any Schedule or otherwise provided to Buyer pursuant to this Agreement shall be
held by Buyer as confidential information going forward.
7.7. Cooperation on Tax Matters. Buyer and Seller agree to furnish or
cause to be furnished to each other, as promptly as practicable, such
information and assistance relating to the Acquired Business as is reasonably
necessary for the preparation and filing of any return, claim for refund or
other required or optional filings relating to tax matters, for the preparation
for and proof of facts during any tax audit, for the preparation of any tax
protect, for the prosecution or defense of any suit or other proceeding relating
to tax matters and for the answer to any governmental or regulatory inquiry
relating to tax matters.
8. CONDITIONS TO THE OBLIGATION OF BUYER AND INFOCURE.
The obligation of Buyer to purchase the Purchased Assets shall be
subject to the fulfillment at or prior to the Closing Date of each of the
following conditions, each of which is for the benefit of Buyer and InfoCure and
any one (1) or more of which may be waived by either Buyer or InfoCure:
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8.1. Accuracy of Representations and Warranties and Compliance With
Obligations.
The representations and warranties of Zila and Seller contained in this
Agreement shall have been true and correct at and as of the date hereof, and
they shall be true and correct at and as of the Closing Date with the same force
and effect as though made at and as of that time.
Zila and Seller shall have performed and complied with all of their
obligations required by this Agreement to be performed or complied with at or
prior to the Closing Date.
Zila and Seller shall each deliver to Buyer a Certificate in the form
of EXHIBIT C hereto, certifying that each of the conditions to the obligations
of Buyer to purchase the Purchased Assets from Seller which is set forth in
Section 8. of this Agreement has been satisfied.
8.2. Opinion of Counsel. Buyer shall have received an opinion dated the
Closing Date from ▇▇▇▇▇▇▇ Lang, P.A., counsel for Seller, substantially in form
and substance as set forth on EXHIBIT H attached hereto.
8.3. Receipt of Necessary Consents. All necessary consents or approvals
of third parties to any of the transactions contemplated hereby, the absence of
which would have a material adverse effect on Buyer's rights hereunder, shall
have been obtained and shown by written evidence reasonably satisfactory to
Buyer or reasonable efforts to obtain such consents or approvals shall have been
demonstrated to Buyer by such evidence.
8.4. No Adverse Litigation. There shall not be pending or threatened
any action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit or invalidate the sale of the Purchased Assets
to Buyer or any other transaction contemplated hereby, or which might affect the
right of Buyer to own the Purchased Assets or to operate the business formerly
operated by Seller and which, in the judgment of Buyer, makes it inadvisable to
proceed with the purchase of the Purchased Assets.
8.5. Transition Services Agreement. Zila and Seller shall have each
entered into a transition agreement letter (the "Transition Services Agreement")
with Buyer, substantially in the form of EXHIBIT I hereto.
8.6. Restrictive Covenant Agreements. Zila and Seller shall have each
entered into a restrictive covenant agreement (the "Restrictive Covenant
Agreement") with Buyer, substantially in the form of EXHIBIT J hereto.
8.7. Directors Resolutions; Good Standing. Seller shall have delivered
to Buyer a certificate evidencing the good standing of Seller as of a recent
practicable date, and a certified copy of the resolutions of the Directors of
Seller (and Seller's shareholders if required by Seller's organizational
documents) approving the execution, delivery and performance by Seller of this
Agreement and all the other transactions to be taken by Seller contemplated
herein.
8.8. Reserved.
8.9. Reserved.
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8.10. Buyer's Lender's Approval. On or before the Closing, Buyer shall
have obtained the approval of Buyer's lender, Finova Capital Corporation
("Finova"), to the transaction contemplated herein.
8.11. Tax Clearance Certificates. Seller shall deliver to Buyer a
certificate from the Commissioner's office at the California Department of
Revenue, dated not more than ten (10) days prior to the Closing Date, that
Seller has paid all California sales and use taxes, and withholding taxes,
currently due.
9. CONDITIONS TO OBLIGATION OF SELLER.
The obligation of Seller to sell the Purchased Assets shall be subject
to the fulfillment at or prior to the Closing Date of each of the following
conditions, each of which is for the benefit of Seller any one (1) or more of
which may be waived by Seller:
9.1. Accuracy of Representations and Warranties and Compliance With
Obligations.
The representations and warranties of Buyer and InfoCure contained
in this Agreement shall have been true and correct at and as of the date hereof,
and they shall be true and correct at and as of the Closing Date with the same
force and effect as though made at and as of that time.
Buyer and InfoCure shall have performed and complied with all of their
respective obligations required by this Agreement to be performed or complied
with at or prior to the Closing Date.
Buyer and InfoCure shall each deliver to Seller a Certificate in the
form of EXHIBIT D hereto, certifying that each of the conditions to the
obligations of Seller to sell the Purchased Assets to Buyer which is set forth
in Section 9. of this Agreement has been satisfied.
9.2. Opinion of Counsel. Seller shall have received an opinion, dated
the Closing Date, from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to Buyer and
InfoCure, substantially in form and substance as set forth in EXHIBIT L attached
hereto.
9.3. No Adverse Litigation. There shall not be pending or threatened
any action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit or invalidate the sale of the Purchased Assets
by Seller or any other transaction contemplated hereby or which, in the judgment
of Seller, makes it inadvisable to proceed with the sale of the Purchased
Assets.
9.4. Reserved.
10. ADDITIONAL AGREEMENTS.
10.1. Execution of Further Documents. From and after the Closing, upon
the reasonable request of Buyer, Seller shall execute, acknowledge and deliver
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be required to convey and transfer to and vest in
Buyer and protect its rights, title and interest in the
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Purchased Assets and as may be appropriate otherwise to carry out the
transactions contemplated by this Agreement.
10.2. Nonassignable Contracts. To the extent that the assignment
hereunder by Seller to Buyer of any contract, commitment, license, lease or
other agreement of Seller (the "Contracts") is prohibited or is not permitted
without the consent of any other party to the Contract, this Agreement shall not
be deemed to constitute an assignment of any such Contract if such consent is
not given or if such assignment otherwise would constitute a breach of, or cause
a loss of contractual benefits under, any such Contract, and Buyer shall assume
no obligations or liabilities thereunder.
Prior to the Closing, Seller shall advise Buyer promptly in writing
with respect to any Contract as to which it knows it will not receive any
required consent. Without in any way limiting Seller's obligation pursuant to
Section 8.3. make efforts to obtain all consents and waivers necessary for the
sale, transfer, assignment and delivery of the Contracts and the Purchased
Assets to Buyer hereunder, if any such consent is not obtained or if such
assignment is not permitted irrespective of consent and the Closing hereunder is
consummated, Seller shall, if requested by Buyer, cooperate with Buyer in any
reasonable arrangement designed to provide Buyer with the rights and benefits
(subject to the obligations) under the Contract, including, if reasonably
requested by Buyer, by enforcing for the benefit of Buyer any and all rights of
Seller against any other person arising out of breach or cancellation by such
other person, acting as an agent on behalf of Buyer, subcontracting to Buyer the
right to perform under the Contract on the same economic terms as applied to
Seller prior to the Closing and acting as Buyer shall otherwise reasonably
require, in each case at Buyer's expense.
Acceptance of any such arrangement shall constitute a waiver by Buyer
of any claim or alleged breach under this Agreement with respect to such
Contracts.
10.3. Announcements. Seller and Buyer shall work together after the
Closing to coordinate the preparation and mailing by each of any announcements
each of them desires to make to customers relating to this transaction.
10.4. Sales Taxes on Acquisition. Notwithstanding anything to the
contrary elsewhere in this Agreement, all transfer, documentary, sales, use,
stamp, registration and other such taxes and fees (including penalties and
interest) incurred in connection with this Agreement (including the acquisition
by Buyer of the Acquired Business and the Purchased Assets) shall be paid by
Zila or the Seller when due, and will, at its own expense, file all necessary
tax returns and other documentation with respect to such transfer, documentary,
sales, use, stamp, registration and other taxes and fees.
10.5. Disclosure. Zila, Seller, Buyer and InfoCure each agree not to
issue any press release or make any public announcement or other disclosure to
competitors, customers, employees or any other person (except to employees and
agents on a need-to-know basis in order to complete the transactions
contemplated by this Agreement and who agree to maintain the confidentiality of
the disclosed information) concerning this Agreement except as required by
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law or with the advance written approval of the other parties, which approval
will not be unreasonably withheld.
11. INDEMNIFICATION.
11.1. Agreement by Seller to Indemnify. Zila and Seller, jointly and
severally, agree to indemnify and hold harmless Buyer and InfoCure and each of
their respective officers, directors, shareholders, successors and assigns
(collectively, the "Seller Indemnified Parties") in respect of the aggregate of
all indemnifiable damages caused to the Acquired Business or any of the Seller
Indemnified Parties. The parties agree that the indemnification provisions set
forth in this Article 11. are the sole remedy for any claims of the Seller
Indemnified Parties relating to the Acquired Business or Purchased Assets and
this Agreement; provided, however, nothing in this Section 11. Shall preclude
Buyer or InfoCure from seeking damages that arise from fraud.
For this purpose, "indemnifiable damages" caused to the Acquired
Business or any of the Seller Indemnified Parties means the aggregate of all
expenses, losses, penalties, costs, deficiencies, liabilities and damages
(including related counsel fees and expenses) incurred or suffered by the
Acquired Business or any of the Seller Indemnified Parties resulting from:
A. The breach of any warranty made by Seller in or pursuant to
this Agreement;
B. The breach of any of the covenants or agreements made by
Seller in this Agreement;
C. The failure of Seller to pay, discharge or perform any
liability or obligation of Seller which is not an Assumed Liability;
D. Any actions, claims, proceedings, demands, grievances or
disputes brought or initiated by third parties against the Acquired Business or
any of the Seller Indemnified Parties in connection with an Excluded Liability;
E. The conduct of the Acquired Business by Seller through and
including the Closing Date; or
F. Any actions, claims, proceedings, demands, grievances or
dispute brought or initiated by third parties against the Acquired Business or
any of the Seller Indemnified Parties in connection with any Plan (as defined in
Section 4.17.1.) or any Seller Employee Liabilities (as defined in Section
4.16.1.B.).
The foregoing obligation of Zila and Seller to indemnify the Seller
Indemnified Parties shall be subject to each of the following principles or
qualifications:
11.1.1. Each of the representations and warranties made by
Zila and Seller in this Agreement or pursuant hereto, shall survive for a period
of two (2) years after the Closing Date, notwithstanding any investigation at
any time made by or on behalf of Buyer or InfoCure, and thereafter all such
representations and warranties shall be extinguished; provided, however, that
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the representations and warranties made by Zila and Seller to the extent they
relate to Seller's title to the Purchased Assets shall survive forever; the
representations and warranties made by Seller to the extent they relate to any
Plan or Seller Employee Liabilities shall survive until no possible liability
with respect thereto can be asserted; and that the representations and
warranties made by Seller in Section 4.4. hereof ("Tax Matters") shall in each
case survive until the first (1st) anniversary of the later of:
A. The date on which applicable period of limitation on
assessment or refund of tax has expired; or
B. The date on which the applicable taxable year (or portion
thereof) has been closed.
No claim for the recovery of indemnifiable damages may be asserted by
any of the Seller Indemnified Parties against Seller or its successors in
interest after such representations and warranties shall be thus extinguished;
provided, however, that claims first asserted in writing within the applicable
period shall not thereafter be barred. In addition, the Seller shall have no
liability with respect to indemnifiable damages until the total of all such
damages exceeds Seventy-Five Thousand and No/100 Dollars ($75,000.00) in which
event Buyer shall be entitled to claim only the excess of the amount of such
damages over Seventy-Five Thousand and No/100 Dollars ($75,000.00).
Notwithstanding the foregoing, in no event shall the aggregate liability of Zila
and Seller under this Section 11. exceed the Purchase Price.
Notwithstanding any prior provision of this Agreement to the contrary,
to the extent that there exists, or there shall arise, any "Seller Controlled
Group Plan Liability", as that term is defined in Section 4.17.3. of this
Agreement, the Seller shall indemnify and hold harmless InfoCure, Buyer and
their subsidiaries, any successors or assigns thereto, and all employees,
officers, directors, agents, independent contractors and other persons
affiliated with InfoCure, Buyer and/or their subsidiaries or their successors
and assigns (herein the "Indemnitees") from and against any and all such
liabilities, and any losses, damages, claims, liabilities, actions, suits,
proceedings and costs and expenses of defense thereof, including reasonable
attorneys' fees, and the Seller shall take any action reasonably requested by
InfoCure to prevent the imposition of such liability. Notwithstanding any
provision of this Agreement to the contrary, to the extent that there exists, or
there shall arise, any Seller Employee Liabilities (as defined in Section
4.16.1.B.) as of and from and after the Closing Date, the Seller shall indemnify
and hold harmless the Indemnitees from and against any and all such liabilities,
and any losses, damages, claims, liabilities, actions, suits, proceedings and
costs and expenses of defense thereof, including reasonable attorneys' fees, and
the Seller shall take any action reasonably requested by InfoCure to prevent the
imposition of such liability. Notwithstanding any provision of this Agreement to
the contrary, the indemnification of the preceding two sentences shall survive
the Closing Date and shall remain in effect until no Seller Controlled Group
Plan Liability and no Seller Employee Liabilities could possibly be asserted
against any of the Indemnitees.
11.2. Agreements by Buyer and InfoCure to Indemnify. Buyer and InfoCure
(the "Buyer Indemnifying Parties"), jointly and severally, agree to indemnify
and hold Seller and Zila and each of their respective officers, directors,
shareholders, successors and assigns (collectively,
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for purposes of this Section 11.2., "Seller") harmless in respect of the
aggregate of all indemnifiable damages of Seller.
For this purpose, "indemnifiable damages" of Seller means the aggregate
of all expenses, losses, costs, deficiencies, liabilities and damages (including
related counsel fees and expenses) incurred or suffered by Seller (in each case
net of any insurance or other third party recoveries) from:
A. The breach of any representation or warranty made by Buyer
pursuant to this Agreement; or
B. The breach of any of the covenants or agreements made by
Buyer or InfoCure in this Agreement.
C. Any actions, claims, proceedings, demands, grievances or
disputes brought or initiated by third parties against the Seller in connection
with the Assumed Liabilities, and in connection with Buyer's employment
practices and contractual obligations to third parties after the Closing Date.
The foregoing obligation of Buyer Indemnifying Parties to indemnify
Seller shall be subject to each of the following principles or qualifications:
11.2.1. Each of the representations and warranties made by
Buyer in Section 5. of this Agreement shall survive for a period of two (2)
years after the Closing Date, and thereafter all such representations and
warranties shall be extinguished.
No claim for the recovery of indemnifiable damages pursuant to clause
(i) of Section 11.2. may be asserted by Seller against Buyer Indemnifying
Parties or their successors in interest after such representations and
warranties shall be thus extinguished; provided, however, that claims first
asserted in writing within the applicable period shall not thereafter be barred.
11.3. Matters Involving Third Parties. If any third party shall notify
Buyer or Seller (the "Indemnified Party") with respect to any matter which may
give rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 11. then the Indemnified Party shall
notify each Indemnifying Party thereof promptly; provided, however, that no
delay on the part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any liability or obligation hereunder
unless (and then solely to the extent that) the Indemnifying Party thereby is
damaged.
If any Indemnifying Party notifies the Indemnified Party within fifteen
(15) days after the Indemnified Party has given notice of the matter that the
Indemnifying Party is assuming the defense thereof, then:
A. The Indemnifying Party will defend the Indemnified Party
against the matter with counsel of its choice satisfactory to the Indemnified
Party;
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B. The Indemnified Party may retain separate co-counsel at its
sole cost and expense (except that the Indemnifying Party will be responsible
for the fees and expenses of the separate co-counsel to the extent the
Indemnified Party concludes that the counsel the Indemnifying Party has selected
has a conflict of interest);
C. The Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the matter without the
written consent of the Indemnifying Party (not to be withheld or delayed
unreasonably); and
D. The Indemnifying Party will not consent to the entry of any
judgment with respect to the matter, or enter into any settlement which does not
include a provision whereby the plaintiff or claimant in the matter releases the
Indemnified Party from all liability with respect thereto, without the written
consent of the Indemnified Party (not to be withheld or delayed unreasonably).
If no Indemnifying Party notifies the Indemnified Party within fifteen
(15) days after the Indemnified Party has given notice of the matter that the
Indemnifying Party is assuming the defense thereof, then the Indemnified Party
may defend against, or enter into any settlement with respect to, the matter in
any manner it may deem appropriate.
11.4. Other Agreements. Any indemnity obligations which Zila and Seller
may have to Buyer can be discharged by the Escrow Agent from the funds held in
escrow pursuant to Section 2.1.2. above in accordance with the terms of the
Escrow Agreement.
12. MISCELLANEOUS.
12.1. Brokers' Commission. Buyer will indemnify and hold harmless
Seller from the commission, fee or claim of any person, firm or corporation
employed or retained or claiming to be employed or retained by Buyer to bring
about, or to represent it in, the transactions contemplated hereby. Seller will
indemnify and hold harmless Buyer from the commission, fee or claim of any
person, firm or corporation employed or retained or claiming to be employed or
retained by Seller to bring about, or to represent them in the transactions
contemplated hereby.
12.2. Amendment and Modification. The parties hereto may amend, modify
and supplement this Agreement in such manner as may be agreed upon by them in
writing.
12.3. Termination.
12.3.1. Anything to the contrary herein notwithstanding, this
Agreement may be terminated and the transactions contemplated hereby may be
abandoned:
12.3.1.1. By the mutual written consent of all of the
Parties hereto at any time prior to the Closing Date;
12.3.1.2. Unless terminated pursuant to Section
12.3.1.1. by any Party in the event of the breach by any other Party of any
provision of this Agreement, which breach is
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not remedied by the breaching Party within ten (10) days after receipt or notice
thereof from the terminating party; or
12.3.1.3. Unless terminated pursuant to Section
12.3.1.1., by any Party hereto if the Closing has not taken place by January 15,
2000.
If this Agreement is terminated pursuant to clause
12.3.1.1. of this Section 12.3.1., no Party shall have any liability for any
costs, expenses, loss of anticipated profit or any further obligation for breach
of warranty or otherwise to any other Party to this Agreement. Any termination
of this Agreement pursuant to clauses 12.3.1.2. or 12.3.1.3. of this Section
12.3.1. shall be without prejudice to any other rights or remedies of the
respective parties.
12.3.2. The risk of any loss to the properties to be sold by
Seller hereunder and all liability with respect to injury and damage occurring
in connection therewith shall be the sole responsibility of Seller until the
completion of the Closing. If, in the opinion of Buyer, any material part of
said properties shall be damaged by fire or other casualty prior to the
completion of the Closing hereunder, then Buyer shall have the right and option:
12.3.2.1. To terminate this Agreement, without
liability to any party thereto; or
12.3.2.2. To proceed with the Closing hereunder, in
which event such casualty shall not constitute a breach by Seller of any
representation, warranty or covenant in this Agreement, and Buyer shall be
entitled to receive and retain the insurance proceeds arising from such casualty
reasonably allocable to such properties that would otherwise constitute
Purchased Assets as mutually agreed by Buyer and Seller.
12.4. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns,
heirs and legal representatives. This Agreement may not be assigned by Buyer and
InfoCure, jointly and severally, except to another corporation controlled by or
under common control with Buyer. In any such event, Buyer and InfoCure, jointly
and severally, shall remain directly liable for all undertakings and obligations
hereunder. This Agreement, including any rights to receive payments hereunder,
may not be assigned by Seller except to its shareholders upon a dissolution or
liquidation of Seller.
12.5. Entire Agreement. This Agreement and the exhibits and schedules
attached hereto contain the entire agreement of the parties hereto with respect
to the purchase of the Purchased Assets and the other transactions contemplated
herein, and supersede all prior understandings and agreements of the parties
with respect to the subject matter hereof. Any reference herein to this
Agreement shall be deemed to include the schedules and exhibits attached hereto.
12.6. Headings. The descriptive headings in this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
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12.7. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which together will constitute one and the same instrument.
12.8. Notices. Any notice, request, information or other document to be
given hereunder to any of the Parties by any other Party shall be in writing and
delivered personally or sent by certified or registered mail, postage prepaid,
as follows:
If to Seller, addressed to:
Integrated Dental Technologies, Inc.
c/o Zila, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
If to Zila, addressed to:
Zila, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Buyer or InfoCure, addressed to:
InfoCure Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
With copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
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Any party may change the address to which notices hereunder are to be sent to it
by giving written notice of such change of address in the manner herein provided
for giving notice. Any notice delivered personally shall be deemed to have been
given on the date it is so delivered, and any notice delivered by registered or
certified mail shall be deemed to have been given on the date it is received or
refused, if delivery is refused.
12.9. Schedules. To the extent any disclosure in a Schedule puts Buyer
on actual notice of the facts reflected therein, such disclosure shall be deemed
to be a disclosure in all other Schedules under this Agreement as to such facts.
12.10. Governing Law/Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Georgia
applicable to contracts made and to be performed herein. With respect to any
dispute, controversy or claim arising out of, relating to or in connection with,
this Agreement, or the breach, termination or validity hereof, the parties shall
first attempt to resolve the matter in good faith for a period of fourteen (14)
days, thereafter, any such dispute, controversy or claim shall be finally
settled by arbitration conducted in accordance with this Section. The
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA") in effect at the time
of the arbitration, except as they may be modified herein or by mutual agreement
of the parties. The seat of the arbitration shall be Atlanta, Georgia and each
party hereto irrevocably submits to the jurisdiction of the arbitration panel in
Atlanta, Georgia. The arbitration shall be conducted by three (3) arbitrators,
at least two (2) of which are attorneys having more than seven (7) years
experience in the general mergers and acquisitions field. The party initiating
arbitration (the "Claimant") shall identify its arbitrator within twenty (20)
days of receipt of a request for arbitration (the "Request") and shall notify
the Claimant of such appointment in writing. If the Respondent fails to identify
an arbitrator within such twenty (20) day period, the arbitrator named in the
Request shall decide the controversy or claim as the sole arbitrator. Otherwise,
the two (2) arbitrators appointed by the parties shall appoint a third (3rd)
arbitrator within twenty (20) days after the Respondent has notified Claimant of
the appointment of the Respondent's arbitrator. When the third (3rd) arbitrator
has accepted the appointment, the two (2) party-appointed arbitrators shall
promptly notify the parties of the appointment. If the two (2) arbitrators
appointed by the parties fail or are unable to so appoint a third (3rd)
arbitrator, then the appointment of the third (3rd) arbitrator shall be made by
the AAA, which shall promptly notify the parties of the appointment. The third
(3rd) arbitrator shall act as chair of the panel. The arbitration award shall be
in writing and shall be final and binding on the parties. The award may include
an award of costs, including reasonable attorneys' fees and disbursements.
Judgment upon the award may be entered by any court having jurisdiction thereof
or having jurisdiction over the parties or their assets. Notwithstanding the
foregoing, the parties may apply to any court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this Section and without
any abridgment of the powers of the arbitrators. The parties agree to be subject
to the jurisdiction of the Superior Court of ▇▇▇▇ County or United States
District Court for the Northern District of Georgia (provided said court has
subject matter jurisdiction), which shall be the exclusive venue and
jurisdiction for such adjudication, and the parties hereby agree to subject
themselves to the jurisdiction and venue of such court for all such purposes and
agree to waive any objections thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
BUYER:
InfoCure Systems, Inc.
By:___________________________________
Name:_________________________________
Title:________________________________
INFOCURE:
InfoCure Corporation
By:___________________________________
Name:_________________________________
Title:________________________________
SELLER:
Integrated Dental Technologies, Inc.
By:___________________________________
Name:_________________________________
Title:________________________________
ZILA:
Zila, Inc.
By:___________________________________
Name:_________________________________
Title:________________________________
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EXHIBITS
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Exhibit A Escrow Agreement
Exhibit B Allocation Agreement
Exhibit C Certificate of Seller
Exhibit D Certificates of Buyer and InfoCure
Exhibit E ▇▇▇▇ of Sale
Exhibit F Wire Transfer Instructions
Exhibit G Assignment and Assumption Agreement
Exhibit H Opinion of Seller's Counsel
Exhibit I Transition Services Agreement
Exhibit J Restrictive Covenant Agreement
Exhibit K Reserved
Exhibit L Opinion of Buyer's Counsel
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SCHEDULES
---------
Schedule 1.1.11 Fixed Assets
Schedule 1.2.4 Excluded Assets
Schedule 2.2 Assumed Liabilities
Schedule 4.3 Financial Statements
Schedule 4.4 Liabilities of Seller
Schedule 4.5.1 Tax Returns Not Filed
Schedule 4.5.2 Taxes Withheld
Schedule 4.6 Real Property
Schedule 4.7.1 Liens and Encumbrances
Schedule 4.8 Receivables of Seller
Schedule 4.9.1 Intellectual Property Rights of Seller
Schedule 4.9.2 Software
Schedule 4.9.3 Millennium Compliant Matters
Schedule 4.9.6 Interest in Software or Intangibles
Schedule 4.9.7 Standard Form Contracts
Schedule 4.11 Contracts; Insurance; Customers
Schedule 4.11.2 Insurance Matters
Schedule 4.12 Litigation
Schedule 4.14 Certain Events
Schedule 4.16 Employment and Labor Matters
Schedule 4.17.1 Benefit Plans
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Schedule 4.19 Consents and Approvals
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