EXHIBIT 2.1
PURCHASE AGREEMENT
by and among
BIOCHROM LIMITED
as Buyer
and
PHARMACIA BIOTECH (BIOCHROM) LIMITED
as Seller
and
PHARMACIA & UPJOHN, INC.
as guarantor of Seller's obligations
and
HARVARD APPARATUS, INC.
as guarantor of Buyer's obligations
Dated on March 2, 1999
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ASSET PURCHASE AGREEMENT
INDEX
Page
1. INTERPRETATION...................................................................................1
2. PURCHASE AND SALE OF ASSETS......................................................................2
2.1 Sale of Assets.....................................................................2
2.2 Liabilities........................................................................6
2.3 Purchase Price and Payment.........................................................8
2.4 Time and Place of Closing.........................................................10
2.5 Change of Seller's Name...........................................................10
2.6 Post-Closing Access...............................................................10
2.7 Further Assurances................................................................11
2.8 Allocation of Purchase Price......................................................11
2.9 Non-AP Biotech Accounts Receivable................................................11
2.10 Required Consents; Consents and Assets Not Delivered at Closing...................13
2.11 Employees.........................................................................13
2.12 World Wide Web Site...............................................................15
2.13 LKB Biochrom Trademark............................................................15
2.14 Pensions..........................................................................15
2.15 Assignment of Trademarks..........................................................16
3. REPRESENTATIONS AND WARRANTIES OF SELLER........................................................16
3.1 Making of Representations and Warranties..........................................16
3.2 Organization and Qualifications of Seller.........................................16
3.3 Authority of Seller...............................................................16
3.4 Freehold, Leasehold and Personal Property.........................................17
3.5 Financial Statements and Ordinary Course..........................................22
3.6 Taxes.............................................................................22
3.7 Collectibility of Non-AP Biotech Accounts Receivable..............................22
3.8 Inventory.........................................................................23
3.9 Absence of Certain Changes........................................................23
3.10 Intellectual Property.............................................................24
3.11 Contracts.........................................................................26
3.12 Litigation........................................................................27
3.13 Compliance with Laws..............................................................27
3.14 Insurance.........................................................................28
3.15 Powers of Attorney................................................................28
3.16 Finder's Fee......................................................................28
3.17 Product Liability or Other Claims.................................................28
3.18 Governmental Approvals; Orders Affecting the Business.............................28
(i)
3.19 Copies of Documents...............................................................28
3.20 Transactions with Interested Persons..............................................28
3.21 Intentionally Omitted.............................................................29
3.22 Environmental Matters.............................................................29
3.23 Officers..........................................................................29
3.24 Employees.........................................................................29
3.25 Customers, Distributors and Suppliers.............................................31
3.26 Vehicles..........................................................................31
3.27 Disclosure........................................................................31
4. COVENANTS OF SELLER.............................................................................31
4.1 Making of Covenants and Agreements................................................31
4.2 Notice of Default.................................................................31
4.3 Consummation of Agreement.........................................................32
4.4 Notice to Third Parties...........................................................32
4.5 Protection of Goodwill............................................................32
4.6 Confidentiality...................................................................34
4.7 Intentionally Omitted.............................................................34
4.8 Value Added Tax...................................................................34
4.9 Audited Financial Statements......................................................35
5. REPRESENTATIONS AND WARRANTIES OF BUYER.........................................................35
5.1 Making of Representations and Warranties..........................................35
5.2 Organization of Buyer.............................................................35
5.3 Authority of Buyer................................................................36
5.4 Finder's Fee......................................................................36
6. COVENANTS OF BUYER..............................................................................37
6.1 Making of Covenants and Agreement.................................................37
6.2 Notice of Default.................................................................37
6.3 Consummation of Agreement.........................................................37
7. CONDITIONS......................................................................................37
7.1 Conditions to the Obligations of Buyer............................................37
7.2 Conditions to Obligations of Seller...............................................38
7.3 Further Conditions to Obligations of Buyer and Seller.............................39
8. INTENTIONALLY OMITTED...........................................................................40
9. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING....................................................40
9.1 Survival of Warranties............................................................40
9.2 Payment of Excluded Liabilities...................................................40
9.3 Payment of Assumed Liabilities....................................................40
(ii)
10. INDEMNIFICATION................................................................................40
10.1 Indemnification by Seller.........................................................40
10.2 Limitations on Indemnification by Seller..........................................41
10.3 Indemnification by Buyer..........................................................42
10.4 Limitation on Indemnification by Buyer............................................43
10.5 Notice; Defense of Claims.........................................................44
11. MISCELLANEOUS..................................................................................45
11.1 Warranty Obligations..............................................................45
11.2 Fees and Expenses.................................................................45
11.3 Governing Law.....................................................................45
11.4 Notices...........................................................................46
11.5 Entire Agreement..................................................................47
11.6 Assignability; Binding Effect.....................................................47
11.7 Execution in Counterparts.........................................................47
11.8 Amendments........................................................................47
11.9 Publicity and Disclosures.........................................................47
11.10 Agreement to Continue in Full Force...............................................48
11.11 Dispute Resolution................................................................48
11.12 Severability......................................................................49
(iii)
EXHIBITS
Exhibit 2.3(b) December 31 Statement of Net Tangible Assets
Exhibit 2.3(c) Inventory Obsolescence Reserve Calculation
Exhibit 2.14 Pension Matters
Exhibit 4.4 Notification Letter to Third Parties
Exhibit 7.1(g) Form of Distribution Agreement
Exhibit 7.1(h) Form of License Agreement for Pharmacia Biotech Name
Exhibit 7.1(i) Form of License Agreement for Amersham Name
Exhibit 7.1(k) ▇▇▇▇ of Sale to Buyer
Exhibit 7.1(n) Assignment of Contracts and Assumption of Liabilities
SCHEDULES
Schedule 2.1(a)(ii) Off-Site Assets
Schedule 2.1(a)(v) Leased Personal Property
Schedule 2.1(a)(vii) Contracts of Seller and Purchase Orders Issued by
Seller
Schedule 2.1(a)(viii) Purchase Orders of Customers Received by Seller
Schedule 2.1(a)(xi) Computer Software
Schedule 2.1(d)(i) AP Biotech Receivables
Schedule 2.1(d)(iii) Affiliate Contracts
Schedule 2.1(d)(v) Network Software
Schedule 2.2(a) Assumed Liabilities (Section 2.2(b); Section 11.1)
Schedule 2.10 Required Consents and Approvals (Section 3.4(d);
Section 3.10(c))
Schedule 3.4(b) Leasehold Property
Schedule 3.4(c) Machinery, Equipment and Other Personal Property
(Section 2.1(a)(iv))
Schedule 3.5 Financial Statements
Schedule 3.7 Non-AP Biotech Receivables (Section 2.1(a)(vi))
Schedule 3.8 Inventory (Section 2.1(a)(i))
Schedule 3.9 Absence of Certain Changes
Schedule 3.10 Buyer Purchased Intellectual Property
(Section 2.1(a)(xiv))
Schedule 3.11 Assumed Contracts (Section 2.1(a)(xi); Section 2.1(a)
(xiv); Section 2.2(a); Section 2.10; Section 3.10(a);
Section 3.10(c))
Schedule 3.14 Insurance
Schedule 3.18 Permits
Schedule 3.22 Environmental Matters
Schedule 3.23 Officers
Schedule 3.24 Employees (Section 2.1(a)(xiii); Section 3.9(f))
Schedule 3.25 Customers, Distributors and Suppliers
Schedule 3.26 Vehicles (Section 2.1(ix))
(iv)
ASSET PURCHASE AGREEMENT
AGREEMENT entered into on March 2, 1999 by and among Biochrom Limited
(a limited liability company incorporated in England with registered number
3526954 whose registered office is at ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ England) ("Buyer") and Pharmacia Biotech
(Biochrom) Limited (a limited liability company incorporated in England with
registered number 974213 whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ England) ("Seller"), and Pharmacia &
Upjohn, Inc. (a company incorporated in the State of Delaware), as guarantor of
Seller's obligations hereunder (the "Seller Guarantor"), and Harvard Apparatus,
Inc. (a company incorporated in the Commonwealth of Massachusetts), as guarantor
of Buyer's obligations hereunder ("HAI" or the "Buyer Guarantor").
W I T N E S S E T H:
WHEREAS, Seller principally carries on the business of manufacturing
and selling chemical analysis instruments;
WHEREAS, Seller is empowered by its Memorandum of Association to sell
or dispose of its assets and undertaking (wholly or in part) for such
consideration and on such terms as it thinks fit and there is nothing in any
deed or document restricting or prohibiting the sale of the goodwill or other
assets of Seller which are the subject matter of this Agreement;
WHEREAS, subject to the terms and conditions set forth herein, Buyer
desires to purchase from Seller, and Seller desires to sell, transfer and assign
to Buyer, substantially all of the assets of Seller;
WHEREAS, subject to the terms and conditions hereof, Buyer desires to
purchase said assets of Seller for the consideration specified herein and the
assumption by Buyer only of certain liabilities and obligations of Seller
specified herein; and
WHEREAS, as a condition to the consummation of the transactions
contemplated hereby, Buyer will enter into a Distribution Agreement (the
"Distribution Agreement") with Amersham Pharmacia Biotech AB, a Swedish
corporation ("AP Biotech"), on the Closing Date (as hereinafter defined).
NOW, THEREFORE, in order to consummate said purchase and sale and in
consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
1. INTERPRETATION
In the interpretation of this Agreement:
1.1 The headings are for convenience only and shall not affect the
interpretation hereof;
1.2 References in this Agreement to Sections, Recitals or
Schedules are to sections of and recitals or schedules to this Agreement and all
of the foregoing are included in any reference to this Agreement;
1.3 Unless the context otherwise requires the singular shall
include the plural and vice versa, and references to persons shall include
bodies corporate, unincorporated associates and partnerships;
1.4 References in this Agreement to any statute or statutory
provision or EC Directive shall include any statute or statutory provision or EC
Directive which amends, extends, consolidates or replaces the same or which has
been amended, extended, consolidated or replaced by the same up to the Closing
Date and shall include any order, regulation, instrument or other subordinate
legislation made under the relevant statute or statutory provision or EC
Directive; and
1.5 References to any legal term of the United States or a state
therein for any right, action, remedy, method of judicial proceeding, legal
document legal status, court, official or any legal concept or thing shall in
respect of any jurisdiction other than the United States or a state therein be
deemed to include what most nearly approximates in that jurisdiction to the
legal term of the United States or a state therein.
1.6 The term "Business" shall refer to the manufacture, design,
development and sale of all products sold by Seller prior to the Closing,
including without limitation, spectrophotometers and amino acid analyzers and
related accessories, chemicals, service support, software and spare parts as
conducted by Seller prior to the Closing, with the exception of the Excluded
Assets as provided in Section 2.1(d).
1.7 The term "Business Day" shall mean a day, other than Saturday,
when banks are open for business in London.
2. PURCHASE AND SALE OF ASSETS
2.1 SALE OF ASSETS
(a) Subject to the provisions of this Agreement, at the
Closing (as defined in Section 2.4 hereof) Seller shall sell and transfer free
from all liens, charges and encumbrances to Buyer and Buyer shall purchase with
effect from the Closing Date all of Seller's Business as a going concern
comprising the right, title and interest in all of the properties and assets of
Seller (except as hereinafter provided in Sections 2.1(c) and 2.1(d)) of every
kind and description, tangible and intangible, real, personal or mixed, and
wherever located, including, without limitation, the following:
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(i) all inventory, stock in trade,
work-in-process, finished goods and raw materials owned by Seller (collectively,
the "Inventory"), including, without limitation, such items set forth on
SCHEDULE 3.8 attached hereto;
(ii) (A) all assets, including, without
limitation, printed circuit board artwork and all patterns, drawings and tooling
owned by Seller which are not located on the Leasehold Property (as hereinafter
defined) (the "Off-Site Assets"), it being understood by the parties hereto that
SCHEDULE 2.1(a)(ii) contains information as to the name, address and telephone
number of each third party where such assets are located as well as information
identifying the tooling located at each such location;
(B) all printed circuit board artwork
and all patterns, drawings and tooling owned by Seller which are located on the
Leasehold Property (as defined hereinafter);
(iii) the goodwill of Seller in connection with
Seller's Business and the exclusive right to represent itself as carrying on
Seller's Business in succession to Seller (the "Goodwill");
(iv) all machinery, equipment and tangible
personal property owned by Seller including, without limitation, (A) the
machinery, equipment and tangible personal property listed on SCHEDULE 3.4(c)
attached hereto, (B) all tooling (including molds), spare parts, fixtures,
castings, and other tangible assets related to or used in connection with such
scheduled machinery and equipment and all other tools, spare parts, fixtures and
other tangible assets and (C) office equipment, telephones, facsimile machines,
desks, tables, chairs and file cabinets (all of the foregoing described in
clauses (A), (B) and (C) collectively, the "Equipment");
(v) the leases to all machinery, equipment and
tangible personal property leased by Seller, including, without limitation,
those listed on SCHEDULE 2.1(a)(v) (but excluding leases of vehicles);
(vi) all trade receivables of Seller (other than
those representing accounts of AP Biotech or its affiliates and Seller Guarantor
or its affiliates) including, without limitation, those listed on SCHEDULE 3.7
attached hereto, but excluding those trade receivables expressly identified on
such SCHEDULE 3.7 as being delinquent (the "Delinquent Non-AP Biotech
Receivables"), which such Delinquent Non-AP Biotech Receivables will not be
conveyed to Buyer pursuant to this Agreement (the "Non-AP Biotech Receivables");
(vii) All contracts of Seller and purchase orders
(and the benefits thereunder) issued by Seller in relation to Seller's Business
entered into or issued prior to the Closing Date, including without limitation
those listed on SCHEDULE 2.1(a)(vii), and under which the obligations of all the
parties thereto have not at the Closing Date been fully performed, including,
without limitation, Seller's contracts with third party suppliers and
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distributors (but excluding contracts with employees, leases and customer
purchase orders received by Seller);
(viii) all purchase orders of customers received by
Seller prior to the Closing Date, including without limitation as set forth in
SCHEDULE 2.1(a)(viii), and under which the obligations of all the parties
thereto have not at the Closing Date been fully performed;
(ix) the leases to the vehicles leased by Seller
in connection with Seller's Business at the Closing Date, listed in SCHEDULE
3.26 (the "Vehicles");
(x) such manufacturers' guarantees and
warranties, if any, relating to the Equipment and the Vehicles (or any of them)
as may be in force at the Closing Date insofar as the same are capable of
assignment and the benefit of any claims against such manufacturers relating to
the Equipment and Vehicles (including without limitation any claim for breach of
the manufactures' guarantees and warranties);
(xi) all computer software (except with respect
to that computer software specified on SCHEDULE 3.11 as not being assignable
without consent, which such computer software shall be handled in accordance
with Section 2.10) used by Seller in connection with the operation of Seller's
Business, including without limitation as set forth on SCHEDULE 2.1(a)(xi)
(excluding the network software set forth in Section 2.1(d)(v));
(xii) the accounting and financial records of
Seller and the fiscal records contemplated in Section 4.8;
(xiii) the personnel records and employment
contracts of the Employees (as defined hereinafter), such Employees being listed
on SCHEDULE 3.24;
(xiv) except with respect to the Biochrom Name (as
hereinafter defined), all intellectual property rights of Seller (whether owned,
licensed or otherwise), including without limitation trade secrets, proprietary
information, designs and design rights, styles, technologies, inventions,
know-how, formulae, processes, procedures, research records, test information,
software and software documentation (except with respect to that computer
software specified on SCHEDULE 3.11 as not being assignable without consent,
which such computer software shall be handled in accordance with Section 2.10),
market surveys, marketing know-how and manufacturing, research and technical
information, trade names, service marks and trademarks (except as provided in
Section 2.1(d)(ii)) including, without limitation, the trade names and
trademarks listed in SCHEDULE 3.10 attached hereto, and, subject to Section 2.12
hereof and any necessary third party consent set forth on SCHEDULES 2.10,
information and materials contained in Seller's world-wide-web site (the "Web
Site"), the address of which is set forth on SCHEDULE 3.10 attached hereto (all
such intellectual property, collectively, the "Buyer Purchased Intellectual
Property");
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(xv) the names and addresses of all end-user
customers world wide during each of the last three (3) years owned by or in the
possession of Seller (the "Customer List"), end-user customer records and
histories owned by or in the possession of Seller (it being understood by the
parties that the foregoing is not intended to include the end-user customers of
AP Biotech owned or in the possession of AP Biotech), lists of suppliers and
vendors and all records relating thereto, engineering drawings, records with
respect to production, engineering, product development, costs, advertising,
catalogues, photographs, sales materials, purchasing materials, manufacturing
and quality control records and procedures, research and development files, data
and laboratory books, media materials and plates and other records; and
(xvi) except as set forth in Section 2.1(d)
hereof, all other assets (i.e., other than as described in paragraphs (i) - (xv)
above) and properties of every nature whatsoever tangible and intangible, and
wherever located, to the extent transferable, of Seller, including without
limitation Seller's current phone and fax numbers and electronic mail addresses,
The assets and property of Seller being sold to and purchased by Buyer
under this Section 2.1(a) are hereinafter sometimes referred to as the "Subject
Assets."
(b) Intentionally Omitted.
(c) Subject to the provisions of this Agreement, at the
Closing, Seller shall, in consideration of the Purchase Price, and without any
further consideration payable to Seller, sell and transfer free from all liens,
charges and encumbrances to HAI and HAI shall purchase and acquire, with effect
from the Closing Date, all rights, title and interest in and to the name
"Biochrom" and all related and associated logos and trademarks (except as set
forth in Section 2.13) (collectively, the "Biochrom Name" and, together with the
Buyer Purchased Intellectual Property, the "Intellectual Property").
(d) Notwithstanding anything to the contrary in this
Agreement, there shall be excluded from such purchase and sale the following
property and assets:
(i) all cash in hand and at bank, cash
equivalents, refunds (including tax refunds), taxes advanced, collected or
withheld by Seller, intra-group cash pool receivables, and all other receivables
of Seller other than the Non-AP Biotech Receivables, including, without
limitation, the receivables listed on SCHEDULE 2.1(d)(i);
(ii) all rights, title and interest in and to the
names "Upjohn," "Pharmacia Biotech," "Amersham" and "LKB" and all related and
associated logos and trademarks and all licenses to or from third parties with
respect to each of the foregoing, except to the extent provided for in the
license agreements contemplated by Sections 7.1(h) and 7.1(i) hereto, the forms
of which are attached hereto as EXHIBITS 7.1(h) and 7.1(i);
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(iii) those contracts set forth on SCHEDULE
2.1(d)(iii) between or among any of Seller, AP Biotech or its affiliates and
Seller Guarantor or its affiliates;
(iv) all the statutory books and statutory and
fiscal records of Seller other than the fiscal records contemplated in Section
4.8;
(v) as set forth on SCHEDULE 2.1(d)(v), the
network software of AP Biotech and Seller Guarantor that is used by Seller;
(vi) the Distribution Agreement between Seller
and Transgenomics Inc.;
(vii) any and all assets owned by AP Biotech,
including its inventory of products manufactured and sold by Seller to AP
Biotech and its affiliates, as well as any accounts receivable for such products
owing to AP Biotech and its affiliates from their customers; and
(viii) the assets of Innovir Limited that are
located in the subleased portion of the Leasehold Property (as hereinafter
defined).
The assets and property of Seller which are excluded from the Subject
Assets under this Section 2.1(d) are hereinafter sometimes referred to as
"Excluded Assets."
2.2 LIABILITIES.
(a) Upon the sale and purchase of the Subject Assets,
Buyer agrees to assume (i) the liabilities of the types set forth on EXHIBIT
2.3(b) and SCHEDULE 2.2(a) hereto that are unpaid on the Closing Date, in
accordance with their terms (not in excess of the amounts set forth therein and
subject to paragraph (b) of this Section 2.2) (collectively, the "Assumed
Liabilities") and (ii) all obligations arising or coming due under the Assumed
Contracts (as defined below), in accordance with their terms, for the period
from and after the Closing Date with respect to acts or services to be performed
by Buyer under such Assumed Contracts after the Closing Date. The Assumed
Liabilities and the obligations under the Assumed Contracts are the only
liabilities and obligations of Seller existing on or prior to the Closing Date
(including, without limitation, contractual liabilities and obligations) to be
assumed by Buyer under this Agreement. Notwithstanding anything contained herein
to the contrary, the Assumed Liabilities shall not include any trade payables
representing accounts of AP Biotech or its affiliates or Seller Guarantor or its
affiliates. The assumption of the Assumed Liabilities and the Assumed Contracts
by Buyer hereunder shall not enlarge any rights of third parties under any
contracts or arrangements with Buyer or Seller or any of their respective
affiliates or subsidiaries. The "Assumed Contracts" shall mean only those
contracts or agreements to be assumed by Buyer as expressly identified in (i)
Schedule 3.11 and (ii) Sections 2.1(a)(vii) and 2.1(a)(viii).
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(b) Notwithstanding anything to the contrary contained in
this Agreement, in no event shall the amounts assumed with respect to those
Assumed Liabilities of the types that are set forth on EXHIBIT 2.3(b) and
SCHEDULE 2.2(a) exceed in the aggregate $1,300,000 U.S. dollars at the exchange
rate set forth in EXHIBIT 2.3(b). All liabilities and obligations not assumed by
Buyer under this Agreement are referred to herein as "Excluded Liabilities."
(c) Except for the Assumed Liabilities and the Assumed
Contracts, Buyer shall not assume or be bound by any obligations or liabilities
of Seller or any affiliate of Seller of any kind or nature, known, unknown,
accrued, absolute, contingent or otherwise, whether now existing or hereafter
arising.
(d) Subject to paragraph (c) above, Seller shall be
solely (as between Seller and Buyer) responsible for and pay any and all debts,
losses, damages, obligations, liens, assessments, judgments, fines, disposal and
other costs and expenses, liabilities and claims, including, without limitation,
interest, penalties and fees of counsel, engineers and experts, as the same are
incurred, of every kind or nature whatsoever (all the foregoing being a "Claim"
or the "Claims"), made by or owed to any person to the extent any of the
foregoing relates to (i) the Excluded Assets, (ii) the operations and assets of
Seller's Business or any other business or enterprise of Seller and arises in
connection with or on the basis of events, acts, omissions, conditions, or any
other state of facts occurring or existing solely prior to or on the Closing
Date (including, in each case, without limitation, any Claim relating to or
associated with tax matters, any failure to comply with applicable laws and/or
permitting or licensing requirements and personal injury and property damage
matters) or (iii) any on-account service charge, balancing service charge or
insurance payments relating to the Leasehold Property (as hereinafter defined)
which arise in connection with or on the basis of events, acts, omissions,
conditions, tenant's covenants or any other state of facts occurring or existing
solely prior to or on the Closing Date or accruing after the Closing Date in
respect of a period solely prior to or on the Closing Date. Seller agrees with
Buyer that Seller shall be solely responsible (as between Seller and Buyer) for
any and all Claims for injury (including death) or Claims for damage, direct or
consequential, resulting from or connected with products manufactured by or
services provided by Seller or its affiliates prior to or on the Closing Date,
and Buyer shall have no liability for such Claims.
(e) Subject to paragraph (c) above, Buyer shall be solely
(as between Buyer and Seller) responsible for and pay any and all Claims made by
or owed to any person to the extent they relate to (i) the Assumed Liabilities,
(ii) the operations and assets (including the Subject Assets) of Buyer's
business after the Closing Date and arise in connection with or on the basis of
events, acts, omissions, conditions or any other state of facts occurring or
existing solely after the Closing Date (including, in each case, without
limitation, any Claim relating to or associated with tax matters, any failure to
comply with applicable laws and/or permitting or licensing requirements and
personal injury and property damage matters) or (iii) any on-account service
charge, balancing service charge or insurance payments relating to the Leasehold
Property (as hereinafter defined) which arise in connection with or on the basis
of events, acts, omissions, conditions, tenant's covenants or any other state of
facts occurring or
7
existing solely after the Closing Date or accruing after the Closing Date in
respect of a period solely after the Closing Date. Buyer agrees with Seller
that Buyer shall be solely (as between Buyer and Seller) responsible for any
and all warranty Claims or Claims for injury (including death) or Claims for
damage, direct or consequential, resulting from or connected with products
manufactured by or services provided by Buyer after the Closing Date, and
Seller shall have no liability for such Claims.
(f) Any Claim, other than for the payment of the Assumed
Liabilities, relating to operations and assets of Seller's Business and arising
in connection with or on the basis of events, acts, omissions, conditions or any
other state of facts occurring or existing both before and after the Closing
Date will be apportioned between Seller and Buyer according to their relative
degrees of causation.
(g) Notwithstanding anything contained in paragraphs (d),
(e) or (f) of this Section 2.2 to the contrary, such paragraphs (d), (e) or (f)
of this Section 2.2 shall not be applicable to any Claim with respect to
environmental and worker health and safety matters or pension matters or
employment matters (to the extent covered by Section 2.11 hereof), it being the
express agreement and intent of the parties hereto that only Sections 10.1(f)
and 10.3(e) shall apply to indemnification for a Claim with respect to
environmental and worker health and safety matters and that only Section 3.21
and EXHIBIT 2.14 hereto shall apply to indemnification for a Claim with respect
to pension matters and that Section 10.1(d) shall apply to indemnification for a
Claim with respect to employment matters (to the extent not covered by Section
2.11 hereof).
2.3 PURCHASE PRICE AND PAYMENT.
(a) In consideration of the sale by Seller to Buyer of
the Subject Assets (and the related sale by Seller to HAI of the Biochrom Name),
subject to Buyer's agreement to assume the Assumed Liabilities and the Assumed
Contracts and the satisfaction of all of the conditions contained herein, Buyer
agrees that at the Closing it will deliver to Seller or otherwise pay as
instructed by Seller the sum of Six Million Three Hundred Sixty Two Thousand
Five Hundred Seventy Four U.S. Dollars ($6,362,574) (the "Purchase Price"),
which amount includes Six Hundred Thousand U.S. Dollars ($600,000) which is
being paid by HAI with respect to HAI's purchase of the Biochrom Name, by bank
cashiers checks in Boston Clearing House Funds or by wire transfer.
(b) The Purchase Price is premised upon the Statement of
Net Tangible Assets as of December 31, 1998, which is set forth at EXHIBIT
2.3(b) hereto, together with the exchange rate used in the preparation thereof
(the "December 31 Statement").
(c) Immediately following the Closing Date, the parties
shall, if so requested by Buyer, jointly perform a physical count of the
Inventory. In the event that Buyer does not so request such a physical count of
the Inventory, the parties agree that, for purposes of the Closing Statement (as
defined below), the Inventory count shall be as reflected in the
8
December 31 Statement adjusted based upon the books and records kept by
Seller in the ordinary course of business, consistent with past practice. Any
obsolete or excess Inventory shall be written off on a basis consistent with
and in accordance with the principles and practices described at EXHIBIT 2.3(c)
hereto.
(d) Within forty five (45) days after the Closing Date,
Buyer shall at its expense prepare and deliver to Seller a Statement of Net
Tangible Assets as of the Closing Date (the "Closing Statement"). The Closing
Statement shall be prepared in accordance with this Agreement, including the
Exhibits hereto, and the practices and methodology used by Seller in preparing
the December 31 Statement; PROVIDED, HOWEVER, that in the event of a conflict
between the Agreement, including the Exhibits hereto, and the practices and
methodology used by Seller in preparing the December 31 Statement, then this
Agreement, including the Exhibits thereto, shall govern. The Closing Statement
shall be in the same format as the December 31 Statement, and shall consist
solely of an update of the December 31 Statement from December 31, 1998 through
the Closing Date.
(e) The Purchase Price shall be increased one dollar for
each dollar that the total sum in respect to Net Tangible Assets exceeds
$1,055,524; the Purchase Price shall be decreased one dollar for each dollar
that the total sum in respect to Net Tangible Assets is less than $1,055,524.
For purposes of this Section 2.3, Net Tangible Assets shall be determined by
subtracting the total liabilities set forth on the Closing Statement from the
total assets set forth on the Closing Statement.
(f) If Seller disagrees with the Closing Statement,
Seller shall, within ten (10) Business Days after receipt thereof, furnish to
Buyer a written statement of such disagreement, together with an explanation of
the reasons therefor. If within such ten (10) Business Day period, Buyer does
not receive such a written statement of disagreement from Seller, Seller shall
be deemed to have accepted the Closing Statement for all purposes of this
Agreement. If Buyer does receive such a written statement of disagreement from
Seller within such ten (10) Business Day period, then within ten (10) Business
Days of such receipt, senior executives of Buyer and Seller shall discuss, in
person, by telephone or by video conference, their disagreement in order to
attempt to resolve it through good faith negotiations. If Buyer and Seller are
unable to resolve their disagreement within forty-five (45) Business Days after
the delivery of the Closing Statement to Seller, the disagreement shall be
submitted for determination to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP (so long as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
LLP shall not have acted on behalf of any party hereto in the three (3) year
period prior to submission of the disagreement), which determination shall be
final and binding upon Buyer and Seller. Such determination by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
LLP shall be made in accordance with this Agreement, including the Exhibits
hereto, and the practices and methodology used by Seller in preparing the
December 31 Statement; PROVIDED, HOWEVER, that in the event of a conflict
between the Agreement, including the Exhibits hereto, and the practices and
methodology used by Seller in preparing the December 31 Statement, then this
Agreement, including the Exhibits hereto, shall govern. The expenses incurred by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP in making such determination shall be borne equally by
Buyer and Seller. Each of the parties hereto hereby represents that
9
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP has not acted on its behalf in the three (3) year period
prior to the Closing Date.
(g) The amount of any adjustment to the Purchase Price
shall be paid by the relevant party within fifteen (15) Business Days after the
later of (i) delivery of the Closing Statement if accepted by Seller and (ii)
the earlier of the resolution of any dispute by Buyer and Seller following
notification of their disagreement or a determination by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP
pursuant to paragraph (f) above. Any such cash amount shall be paid by cashier's
or certified check or by wire transfer of immediately available funds to an
account designated by the party receiving the funds.
2.4 TIME AND PLACE OF CLOSING. The closing of the purchase and
sale provided for in this Agreement (herein called the "Closing") shall be held
at the offices of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇. For the purpose of passage of title and risk of loss, allocation
of expenses and other legal, economic or financial effects, the Closing when
completed shall be deemed to have occurred at 12:00 noon, Eastern Standard Time,
on February 26, 1999 (such date and time being referred to herein as the
"Closing Date").
2.5 CHANGE OF SELLER'S NAME. On or about the Closing Date, but in
no event later than the date five (5) Business Days after the Closing Date,
Seller shall change its name to a corporate name which does not include the word
"Biochrom" and each of Seller and Seller Guarantor further agrees, from and
after the Closing Date not to use as a trade or business name or ▇▇▇▇, or carry
on a business under a title containing, the word "Biochrom" or any other word(s)
colorably resembling the same and they each will at all times procure that none
of their respective affiliates will carry on any such business under such name
or names. Seller shall file, within the requisite time period as set out in the
Companies ▇▇▇ ▇▇▇▇, at the Companies Registry forthwith the resolutions as to
change of name applicable to it with the appropriate fee and use all reasonable
endeavors to obtain the requisite Certificate of Incorporation on Change of Name
from the Companies Registry in respect thereof effective as soon as is
practicable.
2.6 POST-CLOSING ACCESS.
(a) After the Closing, Buyer shall afford to Seller and
its accountants and attorneys, for any reasonable legal or business purpose,
including defending third party claims and preparing such tax returns of Seller
as may be reasonably required after the Closing, reasonable access during normal
business hours and subject to reasonable notice to the books and records of
Seller delivered to Buyer under this Agreement and shall permit Seller, at
Seller's expense, to make extracts and copies therefrom.
(b) After the Closing, Seller shall afford to Buyer and
its accountants and attorneys, for any reasonable legal or business purpose,
reasonable access during normal business hours and subject to reasonable notice
to the statutory books and statutory and fiscal
10
records of Seller retained by it in accordance with Section 2.1(d)(iv), and
shall permit Buyer, at Buyer's expense, to make extracts and copies therefrom.
2.7 FURTHER ASSURANCES.
(a) The Law of Property (Miscellaneous Provisions) ▇▇▇
▇▇▇▇ shall not apply to the dispositions of property made under or pursuant to
this Agreement.
(b) Seller shall, from time to time on being reasonably
required to do so by Buyer, now or at any time in the future, do or procure the
doing of all such acts and/or execute or procure the execution of all such
documents in a form reasonably satisfactory to Buyer as Buyer may reasonably
consider necessary for giving full effect to this Agreement and securing to
Buyer the full benefit of the rights, powers and remedies conferred upon Buyer
in this Agreement.
(c) Seller shall promptly transfer or deliver to Buyer
any of the Subject Assets delivered to, or retained or received by, Seller after
the Closing Date.
(d) In respect of any of the Leasehold Property (as
hereinafter defined) which is let, Seller shall deliver to Buyer authorities
signed by Seller addressed to the relevant tenants if any, informing them of the
sale and requiring them henceforth to pay all rents and other amounts due to the
landlord to Buyer.
2.8 ALLOCATION OF PURCHASE PRICE. Within forty-five (45) days
after the Closing or, if later, within ten (10) days following the acceptance by
Seller of the Closing Statement in accordance with Section 2.3(d) or the
resolution of a dispute with respect to the Closing Statement in accordance with
Section 2.3(f), Buyer's auditors shall, with the cooperation of Seller's
auditors, issue a certificate apportioning the consideration payable hereunder
amongst the Subject Assets for the purpose of enabling Buyer to file Stamps Form
No. 22. If such a certificate is not delivered within fourteen (14) days after
the date specified in this Section 2.8 and/or in the event Seller gives notice
to Buyer of its dissatisfaction with the same within fourteen (14) days after
receipt thereof, at the request of either party, senior executives of Buyer and
Seller shall discuss, in person, by telephone or by video conference, their
disagreement with respect to the certificate in order to attempt to resolve it
through good faith negotiations. If Buyer and Seller are unable to resolve their
disagreement within forty-five (45) Business Days after the delivery of the
Closing Statement to Seller, the disagreement shall be submitted for
determination to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, which determination shall be final and
binding upon Buyer and Seller. The expenses incurred by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP in
making such determination shall be borne equally by Buyer and Seller.
2.9 NON-AP BIOTECH ACCOUNTS RECEIVABLE.
(a) Buyer shall have the right and authority, and shall
use commercially reasonable efforts consistent with past practice, to collect
the Non-AP Biotech Receivables
11
after the Closing Date. In the event that subsequent to the Closing, Buyer
receives a check or other instrument on account of such Non-AP Biotech
Receivables in the name of Seller (a "Non-AP Biotech Receivables
Instrument"), Buyer shall deliver such Non-AP Biotech Receivables Instrument
to the attention of ▇▇▇▇▇▇ ▇▇▇ (or such other authorized person as Seller
shall notify Buyer in writing) at the address and facsimile number set forth
in Section 11.4 hereof. Upon receipt of such Non-AP Biotech Receivables
Instrument, ▇▇. ▇▇▇ shall endorse the Non-AP Biotech Receivables Instrument
over to Buyer (without set-off) and return the Non-AP Biotech Receivables
Instrument to Buyer within two (2) business days of such receipt. At Buyer's
request, Seller shall use commercially reasonable efforts to assist Buyer in
collecting the Non-AP Biotech Receivables. Any and all amounts received by
Seller in respect of any Non-AP Biotech Receivables shall be promptly
remitted to Buyer. All payments received by Buyer from a customer owing
Non-AP Biotech Receivables which do not designate a specific invoice to which
they should be applied shall be applied on a "first in, first out" basis with
respect to non-disputed Non-AP Biotech Receivables (i.e., proceeds received
shall be applied to the oldest outstanding non-disputed Non-AP Biotech
Receivables of such customer). To the extent consistent with past practice
Buyer shall not accept any order placed by a customer or distributor that is
past due with respect to any Non-AP Biotech Receivable until such Non-AP
Biotech Receivable has been paid-in-full by such customer or distributor,
unless such customer or distributor is past due as a result of a dispute in
connection with a Non-AP Biotech Receivable.
(b) (i) Upon the demand by Buyer at any time after
two hundred seventy (270) days following the date of any invoice relating to any
Non-AP Biotech Receivable which remains uncollected, Seller shall pay to Buyer
the amount of such uncollected Non-AP Biotech Receivable. In the event of any
such payment, (A) Buyer shall assign to Seller all of Buyer's right, title and
interest in and to such uncollected Non-AP Biotech Receivable (collectively, the
"Re-Assigned Non-AP Biotech Receivables") and shall furnish Seller with all
files concerning such uncollected Non-AP Biotech Receivable and (B) except as
otherwise provided in Section 2.9(c) below, Buyer shall have no further
responsibilities with respect to such uncollected Non-AP Biotech Receivable
except to remit promptly to Seller any amounts subsequently received by it on
account of such uncollected Non-AP Biotech Receivable.
(ii) If subsequent to the Closing, Buyer collects
Non-AP Biotech Receivables in an amount in excess of the Non-AP Biotech
Receivables set forth on the Closing Statement, any such excess amount shall be
returned to Seller within two (2) business days of receipt of such Non-AP
Biotech Receivables.
(c) Buyer shall use commercially reasonable efforts
consistent with past practice to assist Seller in collecting the Re-Assigned
Non-AP Biotech Receivables and the Delinquent Non-APB Receivables. To the extent
consistent with past practice, Buyer shall not accept any order placed by a
customer or distributor owing either a Re-Assigned Non-AP Biotech Receivable or
a Delinquent Non-AP Biotech Receivable until such Re-Assigned Non-AP Biotech
Receivable or Delinquent Non-AP Biotech Receivable, as the case may be, has been
paid-in-full by such customer or distributor, unless such Re-Assigned Non-AP
Biotech
12
Receivable or Delinquent Non-AP Biotech Receivable has not been paid as a
result of a dispute in connection therewith.
2.10 REQUIRED CONSENTS; CONSENTS AND ASSETS NOT DELIVERED AT
CLOSING.
(a) Seller shall use commercially reasonable efforts to
obtain the consents listed in SCHEDULE 2.10 (the "Required Consents") before or
after the Closing Date. Notwithstanding any other provision of this Agreement,
this Agreement shall not constitute an agreement to assign any contract or lease
requiring a third-party consent if such an agreement to assign or an attempted
assignment would constitute a breach thereof.
(b) In relation to any of the Assumed Contracts for which
a third party consent is not obtained by Seller in accordance with paragraph (a)
of this Section 2.10 and unless and until any such contract or lease shall be so
assigned, Buyer shall (insofar as Buyer has notice of them and as it is lawful
and practicable) perform as Seller's sub-contractor at the risk and cost of
Buyer and for Buyer's benefit the obligations of Seller thereunder from the
Closing Date on such terms as shall (insofar as aforesaid) give to Buyer the
benefits and obligations of each such contract or lease to the same extent as if
the same had been assigned to Buyer and Buyer shall indemnify Seller fully at
all times from and against all costs, proceedings, claims, demands and expenses
which may be incurred by Seller as a result of any failure by Buyer in the
performance of any such contract or lease in accordance with its terms after the
Closing Date, provided as concerns this Section 2.10(b) that the contract or
lease was an Assumed Contract. If Seller has not obtained such third party
consent within ninety (90) days of the Closing Date, Seller and Buyer shall
negotiate in good faith to provide Buyer with the substantially equivalent
benefit (in the reasonable judgment of Buyer) of any contract or lease the
Seller is unable to assign due to lack of third party consent. Any costs or
expenses incurred in providing Buyer with such benefit shall be borne by Seller.
(c) In relation to any Subject Asset not assigned at the
Closing, Seller shall, from the Closing until the relevant Subject Asset has
been assigned to Buyer hold such asset in trust for Buyer, shall forthwith give
Buyer notice of any notices or other material communications or information
received by it in relation thereto and shall act under the direction of Buyer in
all matters relating to the relevant Subject Asset (so far as it lawfully may do
so).
2.11 EMPLOYEES.
(a) The parties acknowledge and agree that the sale of
Seller's Business from Seller to Buyer is a "relevant transfer" within the
meaning of the Transfer of Undertakings (Protection of Employment) Regulations
1981 (the "Employment Regulations") and the contracts of employment of the
Employees and Seller's rights, powers, duties and liabilities under or in
connection with such contracts will transfer to Buyer pursuant to the Employment
Regulations.
13
(b) Seller undertakes to Buyer contracting for itself and
as agent for any successor in title to part or all of Seller's Business to
indemnify and keep indemnified Buyer from and against all and any costs, losses,
damages, expenses or claims suffered or incurred by Buyer or such successor as a
result of or in relation to:
(i) any claim or other legal recourse by all or
any of those persons employed (including but not limited to the Employees) at or
prior to the Closing Date by Seller in Seller's Business in respect of any fact,
matter or omission concerning or arising from employment with Seller occurring
or arising on or prior to the Closing Date;
(ii) any claim or other legal recourse in respect
of any fact or matter concerning or arising from employment with Seller;
(iii) any claim or other legal recourse by any
former, current or future employee of Seller (or any of its associated employers
as defined in the Employment Rights Act 1996) other than the Employees against
Seller or its officers, employees, agents or shareholders concerning or relating
to any matter whatsoever;
(iv) any claim or fine or other liability arising
out of a breach by Seller of its obligations under the Trade Union and Labour
Relations Consolidation ▇▇▇ ▇▇▇▇ or arising out of a failure by Seller to inform
and/or consult appropriate representatives as required by Regulation 10 of the
Employment Regulations or to comply with its obligations under Regulation 10
thereof; or
(v) any claim by Employees for redundancy pay or
unfair dismissal, (basic award or compensatory or additional award) or pay in
lieu of notice, or unlawful deduction of wages or any discrimination claim or
damages for breach of contract in respect of any fact or matter concerning or
arising from employment with Seller occurring or arising on or prior to the
Closing Date.
(c) If any contract of employment between Seller and any
of its employees other than the Employees shall as a result of the operation of
the provisions of the Employment Regulations have effect as if originally made
between Buyer and such employee, Buyer may terminate such contract forthwith,
and Seller shall indemnify and keep indemnified Buyer fully at all times from
and against all and any costs, losses, damages, claims, liabilities and expenses
of any nature suffered or incurred by Buyer as a result of or in relation to
such termination or that person's employment by Buyer or the operation of the
Employment Regulations upon that person's contract of employment.
(d) Buyer undertakes to Seller contracting for itself and
as agent for any successor in title to part or all of Buyer's business to
indemnify and keep indemnified Seller from and against all and any costs,
losses, damages, expenses or claims suffered or incurred by Seller or such
successor as a result of or in relation to:
14
(i) any claim or other legal recourse by all or
any of the Employees in respect of any fact or matter concerning or arising from
employment with Buyer occurring or arising solely after the Closing Date; and
(ii) any claim or fine or other liability arising
out of a breach by Buyer of its obligations under the Trade Union and Labour
Relations Consolidation ▇▇▇ ▇▇▇▇ or arising out of a failure by Buyer to inform
or consult employee representatives as required by Regulation 10 of the
Employment Regulations or to comply with its obligations under Regulation 10(3)
thereof.
(e) In the event that within six (6) months following the
Closing Date, the employment of up to three (3) employees of Buyer (who shall be
separately identified) is terminated for any reason, any amounts required to be
paid to any such employee(s) as a consequence of such termination pursuant to
the Seller's employment agreements and policies in effect on the Closing Date
and which are in excess of statutory redundancy or notice payments (if any)
shall be reimbursed by Seller to Buyer. Seller's obligation hereunder shall
include the reimbursement of salary and car benefits paid in lieu of notice of
termination on condition that the employee(s) do not in fact work for Buyer
(whether as employee(s) or otherwise) during the notice period. Seller shall not
be required to reimburse any other amounts payable to such employee(s),
including any amounts relating to claims for wrongful or unfair dismissal, for
unlawful deduction from wages or for unlawful discrimination by Buyer.
2.12 WORLD WIDE WEB SITE. It is the express understanding and
intention of the parties hereto that the Web Site shall be assigned and
transferred to Buyer at the Closing. To the extent that the Web Site contains
references to Seller Guarantor or AP Biotech, Buyer agrees to remove any and all
such references as soon as practicable following the Closing unless otherwise
agreed upon with Seller Guarantor or AP Biotech. Seller agrees to cooperate in
good faith with Buyer in connection with the foregoing.
2.13 LKB BIOCHROM TRADEMARK. Notwithstanding any other provision
herein, Seller shall not cause the "LKB Biochrom" Spanish trademark registration
number 1218194, dated February 20, 1990, to be assigned by AP Biotech to Buyer.
Promptly after the Closing, Seller shall cause AP Biotech to terminate and/or
cease using, and shall not permit any third party to use, the "LKB Biochrom"
trademark. If such trademark cannot be terminated, Seller shall cause AP Biotech
to not renew such registration upon its expiring and Seller shall cause AP
Biotech to not apply for any other registration of that trademark. Neither party
shall have any right to use such trademark. Seller and Buyer acknowledge and
agree that the "LKB" trademark is and shall continue to be the property of AP
Biotech and that the Biochrom Name shall become the property of Buyer Guarantor
on the Closing Date.
2.14 PENSIONS. The provisions of EXHIBIT 2.14 hereto shall have
effect in relation to pensions.
15
2.15 ASSIGNMENT OF TRADEMARKS. Within thirty (30) days following
the Closing Date, Seller shall assign to Buyer those trademarks listed in
SCHEDULE 3.10 hereto. The assignment documentation with respect to each
trademark shall be in a form recordable in each jurisdiction in which such
trademark is registered. Seller shall be responsible for any cost and expense
incurred in connection with providing Buyer with such assignments; PROVIDED,
HOWEVER, that Buyer shall be responsible for all costs and expenses incurred in
connection with the registration or recordation of such assignments.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 MAKING OF REPRESENTATIONS AND WARRANTIES. Seller hereby makes
to Buyer the representations and warranties contained in this Section 3. For the
purposes of this Agreement, references to "knowledge" or "best knowledge" of
Seller or "known" by Seller or words of similar import, shall be deemed to
include such knowledge as any executive officer employed by Seller at the
Closing Date or manager of Seller actually has. Furthermore:
(a) Buyer has entered into this Agreement in reliance
upon the representations and warranties and the same shall survive the Closing
as provided in Section 9.1 hereof;
(b) The benefit of the representations and warranties may
be assigned in whole or in part by Buyer in connection with an assignment of
this Agreement pursuant to Section 11.6 hereof; and
(c) In connection with all representations and warranties
relating to the Leasehold Property, Seller shall not have been required to carry
out any Land Charges searches, Local Land Charges searches, Commons Registration
searches, HM Land Registry searches or Index Map searches and shall not have
made any other enquiries.
3.2 ORGANIZATION AND QUALIFICATIONS OF SELLER. Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of England and Wales with full corporate power and authority to own or
lease its properties and to conduct its Business in the manner and in the places
where such properties are owned or leased or such Business is currently
conducted or proposed to be conducted. Seller has no subsidiaries.
3.3 AUTHORITY OF SELLER.
(a) Each of Seller and Seller Guarantor has or has
received full right, authority and power to enter into this Agreement and each
agreement, document and instrument to be executed and delivered by Seller or
Seller Guarantor, respectively, pursuant to this Agreement. The execution,
delivery and performance by Seller and Seller Guarantor of this Agreement and
each such other agreement, document and instrument have been duly authorized by
all necessary action of Seller and Seller Guarantor, respectively, and their
16
respective shareholders, if required, and no other action on the part of Seller
or Seller Guarantor, or their respective shareholders, is required in connection
therewith.
(b) This Agreement and each agreement, document and
instrument executed and delivered by Seller and Seller Guarantor pursuant to
this Agreement constitutes, or when executed and delivered will constitute,
valid and binding obligations of Seller and Seller Guarantor, respectively,
enforceable in accordance with their terms. The execution, delivery and
performance by Seller and Seller Guarantor of this Agreement and each such
agreement, document and instrument:
(i) does not and will not violate any provision
of the Memorandum of Association of Seller or the Certificate of Incorporation
and By-laws of Seller Guarantor;
(ii) does not and will not violate any laws of
England and Wales, the United States, or, to the best of its knowledge, any
nation, state or other jurisdiction applicable to Seller or Seller Guarantor;
(iii) does not require Seller or Seller Guarantor
to obtain any approval, consent or waiver other than Required Consents or make
any filing prior to or on the Closing Date or, solely as a result of the
consummation of the transactions contemplated by this Agreement, following the
Closing Date with any person or entity (governmental or otherwise) that has not
been obtained or made; and
(iv) does not and will not result in a breach of,
constitute a default under, accelerate any obligation under, or give rise to a
right of termination of any indenture or loan or credit agreement or any other
agreement, contract, instrument, mortgage, lien, lease, permit, authorization,
order, writ, judgment, injunction, decree, determination or arbitration award to
which Seller or Seller Guarantor is a party or by which the property of Seller
or Seller Guarantor is bound or affected, or result in the creation or
imposition of any mortgage, pledge, lien, security interest or other charge or
encumbrance on any of the Subject Assets.
3.4 FREEHOLD, LEASEHOLD AND PERSONAL PROPERTY.
(a) FREEHOLD PROPERTY. Seller owns no freehold property.
(b) LEASEHOLD PROPERTY. Seller hereby makes the following
representations and warranties with respect to all those leasehold premises
known as ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England, comprised in a lease (the "Seller Lease") dated September 30, 1974 made
between the Master Fellows and Scholars of Trinity College, Cambridge ("Trinity
College"), LKB Biochrom Limited and LKB Instruments Limited (the "Leasehold
Property"), with the exceptions set forth in the disclosure letter attached
hereto as SCHEDULE 3.4(b):
17
(i) TITLE. Seller has not received notice from
the freehold owner of Cambridge Science Park to suggest that it has anything
other than a good and marketable title to the Leasehold Property and is legally
and beneficially entitled to the same;
(ii) EXISTING USE. The Existing Use is the design
manufacture and distribution of scientific instruments accessories and spare
parts application software and chemicals;
(iii) ENCUMBRANCES.
(A) to Seller's knowledge, the
Leasehold Property and the title deeds and documentation relating thereto are
not subject to any charge, debenture (whether fixed or floating), option, right
of pre-emption, agreement for sale, overriding interest (as defined in Section
70 of the Land Registration Act 1925) or any other encumbrance nor is there any
person in possession or occupation of or who has or claims any right of any kind
in respect of the Leasehold Property adversely to the estate, interest, right or
title therein of Seller;
(B) to Seller's knowledge, there are no
rights, interests, covenants, restrictions, reservations, licences or easements
nor any disputes or outstanding notices (whether given by a landlord, a local
authority or any other person) nor (without prejudice to the generality of the
foregoing) any other matters or things which adversely affect the value of the
Leasehold Property or the proper use and enjoyment of the Leasehold Property for
the purpose of the Business now being carried on at the Leasehold Property by
Seller;
(C) to Seller's knowledge, there are no
lawfully enforceable restrictions or prohibitions which restrict or prohibit the
Existing Use of the Leasehold Property; and
(D) the Leasehold Property is not
subject to the payment of any outgoings other than the usual rates and taxes and
all sums due to date in respect thereof have been paid;
(iv) ACCESS AND SERVICES.
(A) to Seller's knowledge, the
Leasehold Property enjoys access and egress over roads and footpaths which have
been adopted by the appropriate highway authority and are maintainable at the
public expense;
(B) the Leasehold Property is served by
water, electricity, gas and telephone utilities and to Seller's knowledge,
drains foul sewage and surface water to public sewers. Either the pipes, sewers,
wires, cables, conduits and other conducting media serving the Leasehold
Property connect directly to the mains without passing through land in the
occupation or ownership of any other person or, if they do not, the Leasehold
Property has
18
the benefit of all necessary easements and rights for the maintenance and use
thereof and such rights are held on terms which do not entitle any person to
terminate or curtail the same; and
(C) to the knowledge of Seller, the
Leasehold Property has the benefit of all other easements and rights necessary
for the proper use and enjoyment of the Leasehold Property for the purposes of
the Business now being carried on at the Leasehold Property by Seller and such
easements and rights are held on terms which do not entitle any person to
terminate or curtail the same;
(v) PLANNING.
(A) Seller has not received any notice
advising that the Existing Use is in breach of the permitted use under the Town
and Country Planning legislation (which term includes the Town and Country
Planning ▇▇▇ ▇▇▇▇ the Planning (Listed Buildings and Conservation Areas) ▇▇▇
▇▇▇▇, the Planning (Hazardous Substances) ▇▇▇ ▇▇▇▇ or is of a temporary or
personal nature.
(B) to the knowledge of Seller, all
development carried out in relation to the Leasehold Property since the
commencement of the lease has been lawful and all necessary consents and
permissions have been obtained for such development;
(C) to the knowledge of Seller, the
consents and permissions referred to in paragraph (v)(B) above are valid,
subsisting and unimpeachable and are also either unconditional or subject only
to conditions which have been satisfied so that nothing further remains to be
done thereunder;
(D) Seller has not received notice
confirming that any resolution, proposal, order or act has been made or is
contemplated for the compulsory acquisition of the Leasehold Property by the
local or any other authority nor to the knowledge of Seller is there any
outstanding order, notice or other requirement of any such authority that
affects the Existing Use or involves expenditure in compliance with it nor has
Seller received notice that there any other circumstances which may result in
any such order or notice being made or served or which may otherwise affect the
Leasehold Property;
(E) no compensation has been received
consequent upon a refusal of any planning permission affecting the Leasehold
Property and applied for by Seller or the imposition of any restrictions in any
such planning permission and no such planning permission is suspended; and
(F) Seller has not received notice
confirming that any of the buildings or other structures or erections on the
Leasehold Property have been listed under Section 1 of the Planning (Listed
Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ nor to the knowledge of Seller has
the relevant local authority authorised the service of any building preservation
notice under Section 3 of the Planning (Listed Building and Conservation Areas)
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▇▇▇ ▇▇▇▇ or any repairs notice under Section 48 of the Planning (Listed
Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ in respect of the Leasehold
Property or any building structure or erection thereon and Seller has not
received notice that the relevant local authority has made or resolved to
make any noise abatement zone order under Section 63 of the Control of
Pollution ▇▇▇ ▇▇▇▇ for the area which includes the Leasehold Property;
(vi) PARTICULARS OF LEASE. Certain particulars of
the Seller Lease are set out in SCHEDULE 3.4(b) attached hereto.
(A) to Seller's knowledge the Leasehold
Property forms part of the Landlord's ancient possessions; and
(B) Value Added Tax is chargeable on
the rent and any other payment to be made under the Lease;
(vii) INFERIOR LEASES. Seller holds the Leasehold
Property subject to no inferior leases;
(viii) STATUTORY COMPLIANCE/FIRE CERTIFICATE.
(A) Seller has not received notice of
any breach of the requirements of the Shops ▇▇▇ ▇▇▇▇ to 1965, the ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, the Offices Shops and Railway Premises ▇▇▇ ▇▇▇▇, the Fire Precautions ▇▇▇
▇▇▇▇, the Health and Safety at Work etc. ▇▇▇ ▇▇▇▇ or any other legislation,
regulations, orders notices or directions made thereunder which affect the
Leasehold Property; and
(B) where required a fire certificate
has been issued in respect of the Leasehold Property. Seller has not received
notice that the Leasehold Property does not comply in all material respects with
current fire regulations affecting the Leasehold Property and nor has Seller
received notice that the current requirements of the insurers of the Leasehold
Property have not been complied with; and
(ix) CONDITION AND REPAIR.
(A) to Seller's knowledge, there are
(and there have been) no structural or other material defects in respect of the
buildings and structures at or comprising the Leasehold Property or any parts
thereof other than those contained or referred to in a survey report of February
1996 commissioned by Seller and carried out by JSS Cardoe; and
(B) to Seller's knowledge, there are no
latent or patent defects in the buildings and structures on or comprising the
Leasehold Property and in the construction thereof or any alterations thereto
none of the following materials were used:
(I) high alumina cement in
structural elements;
20
(II) wood wool slabs in
permanent formwork to concrete or in structural elements;
(III) calcium chloride in
admixtures for use in reinforced concrete;
(IV) asbestos or asbestos
containing products as defined in the Asbestos Regulations 1969 and 1987;
(V) naturally occurring
aggregates for use in reinforced concrete which do not comply with British
Standard Specification 882: 1983 and naturally occurring aggregates for use in
concrete which do not comply with the provisions of British Standard
Specification 8110: 1985;
(VI) urea formaldehyde foam or
materials which may release formaldehyde in quantities which may be hazardous
with reference to the limits set from time to time by the Health and Safety
Executive;
(VII) materials which are
generally comprised of mineral fibres either man-made or naturally occurring
which have a diameter of 3 microns or less or which contain fibre not sealed or
otherwise stabilised to ensure that fibre migration is prevented; or
(VIII) any other materials not
in accordance with good design standards and good building practice at the time
of construction of any such buildings.
(c) PERSONAL PROPERTY. A list of the machinery, equipment
and other fixed assets (including, without limitation, any improvements to the
Leasehold Property) owned by Seller having an original purchase value of $1,000
or more is set forth in SCHEDULE 3.4(c). Except as specifically disclosed in
said Schedule, Seller has good and marketable title to all of its tangible
personal property. None of such personal property is subject to any mortgage,
pledge, lien, conditional sale agreement, security agreement, encumbrance, fixed
charge or floating charge that has crystallized, or other charge except as
specifically disclosed in said Schedule. Except as otherwise specified in
SCHEDULE 3.4(c), all machinery, equipment and other tangible property listed in
SCHEDULE 3.4(c) is in good working order, ordinary wear and tear excepted, has
been well maintained, and substantially complies with applicable laws,
ordinances and regulations.
(d) The Subject Assets will be sufficient to allow Buyer
to conduct the Business subsequent to the Closing and, at the Closing, title to
the Subject Assets will pass to Buyer free and clear of all mortgages, pledges,
liens, encumbrances and charges of any kind, other than those Subject Assets
that are the subject matter of any of the Required Consents that have not been
obtained at or prior to the Closing.
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(e) Seller represents that those assets referred to in
Section 2.1(a)(xvi), together with any other Subject Assets (other than those
contracts requiring consent as set forth on SCHEDULE 2.10 hereof) that are not
transferable to Buyer (whether as a result of requiring consent or otherwise)
are not, individually or in the aggregate, material to Seller's Business.
3.5 FINANCIAL STATEMENTS AND ORDINARY COURSE.
(a) Seller has delivered to Buyer the following financial
statements, copies of which are attached hereto as SCHEDULE 3.5:
(i) Balance sheets of Seller for its fiscal
years ending on December 31, 1995, December 31, 1996 and December 31, 1997 and
statements of income, retained earnings and cash flows for each of the three (3)
years then ended, with appropriate footnotes, accompanied by Coopers & ▇▇▇▇▇▇▇,
L.L.P.'s, independent public accountants, opinion.
(ii) Balance sheet of Seller as of June 30, 1998
(herein, the "Base Balance Sheet").
(b) Said financial statements have been prepared in
accordance with the requirements of the Companies ▇▇▇ ▇▇▇▇ (so far as
applicable) and good accounting principles and practices generally accepted at
the date hereof in the United Kingdom, are complete and correct in all material
respects and present fairly in all material respects the financial condition of
Seller at the dates of said statements and the results of its operations and its
cash flows for the periods covered thereby, all subject to the matters set forth
or referenced in said disclaimer opinions.
(c) Since the date of the Base Balance Sheet, Seller has
conducted its Business only in the ordinary course and consistently with its
prior practices.
3.6 TAXES. Seller has paid or caused to be paid all United Kingdom
taxes, including, without limitation, advanced corporation taxes, income taxes,
estimated taxes, excise taxes, sales taxes, use taxes, value-added taxes, gross
receipts taxes, franchise taxes, employment and payroll-related taxes,
withholding taxes, stamp taxes, transfer taxes, windfall profit taxes,
environmental taxes and property taxes, whether or not measured in whole or in
part by net income with respect to the Subject Assets, Seller's Business and the
Assumed Liabilities (in respect to Seller's Business and the Assumed
Liabilities, if in arrears prior to the Closing Date) and all deficiencies, or
other additions to tax, interest, fines and penalties owed by it (other than any
stamp duty or value added or other taxes payable by Buyer in connection with the
transactions contemplated by the Agreement) (the "Taxes") required to be paid by
it through the date hereof whether disputed or not.
3.7 COLLECTIBILITY OF NON-AP BIOTECH ACCOUNTS RECEIVABLE. All of
the Non-AP Biotech Receivables of Seller, including without limitation those
listed on SCHEDULE 3.7, or existing at the date hereof are or will be at the
Closing valid and enforceable claims. The
22
Non-AP Biotech Receivables are fully collectible and subject to no setoff or
counterclaim. Seller has no loan receivables from employees, directors or
unaffiliated third parties.
3.8 INVENTORY. The Inventory has been maintained by Seller at
levels consistent with the ordinary course of Seller's Business, consistent with
past practice. The Inventory reflects write-offs or write-downs to realizable
values in the case of items which are excessive or have become obsolete, such
write-offs or write-downs to be calculated in accordance with the methodology
indicated on EXHIBIT 2.3(c). The values of the Inventory stated in the Base
Balance Sheet and the December 31 Statement were prepared by Seller in
accordance with EXHIBIT 2.3(c). Purchase commitments for raw materials and parts
are not in excess of normal requirements and have not been made at prices
materially in excess of market prices at the time of the purchase commitment.
All Inventory is located on the Leasehold Property. Since the date of the Base
Balance Sheet, no Inventory items have been sold or disposed of except through
sales in the ordinary course of business.
3.9 ABSENCE OF CERTAIN CHANGES. Except as disclosed in SCHEDULE
3.9, since the date of the Base Balance Sheet there has not been:
(a) Any change in the financial condition, revenues,
properties, assets, liabilities, business or operations of Seller which change
by itself or in conjunction with all other such changes, whether or not arising
in the ordinary course of business, has been materially adverse with respect to
Seller;
(b) Any mortgage, encumbrance or lien placed on any of
the properties of Seller which remains in existence on the date hereof or will
remain on the Closing Date;
(c) Any known obligation or liability of any nature
incurred by Seller, whether accrued, absolute, contingent, potential or
otherwise, asserted or unasserted (including, without limitation, liabilities
for Taxes due or to become due (other than any such Taxes which, following the
Closing, will be the sole responsibility of Seller) or liabilities relating to
products or services provided by Seller or the conduct of Seller's Business
since the date of the Base Balance Sheet regardless of whether claims in respect
thereof have been asserted), other than obligations and liabilities incurred in
the ordinary course of business (it being understood that product or service
liability claims shall not be deemed to be incurred in the ordinary course of
business);
(d) Any purchase, sale or other disposition, or any
agreement or other arrangement for the purchase, sale or other disposition, of
any of the properties or assets of Seller other than in the ordinary course of
business;
(e) Any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the properties, assets
or Business of Seller;
23
(f) Any labor trouble or claim of unfair labor practices
involving Seller; and, except as set forth on SCHEDULE 3.9 or SCHEDULE 3.24, any
change in the compensation payable or to become payable by Seller to any of its
officers, employees, agents or independent contractors other than normal merit
increases in accordance with its usual practices, or any bonus payment or
arrangement made to or with any of such officers, employees, agents or
independent contractors;
(g) Any change with respect to the officers or management
employees of Seller;
(h) Any change in accounting methods or practices, credit
practices or collection policies used by Seller;
(i) Any declaration, setting aside or payment of any
dividend by Seller, or the making of any other distribution in respect of the
share capital of Seller, other than with respect to a dividend or distribution
made solely in cash, or any direct or indirect redemption, purchase or other
acquisition made solely in cash by Seller of its own share capital;
(j) Any payment or discharge of a material lien or
liability of Seller which was not shown on the Base Balance Sheet or was not
incurred in the ordinary course of business thereafter;
(k) Any obligation or liability incurred by Seller to any
of its officers, directors or employees, or any loans or advances made by Seller
to any of its officers, directors or employees, except normal compensation and
expense allowances payable to officers, directors or employees;
(l) Any transaction with a party affiliated with Seller,
other than sales to AP Biotech in the normal course of Seller's Business;
(m) Any other transaction entered into by Seller other
than transactions in the ordinary course of Seller's Business; or
(n) Any agreement or understanding whether in writing or
otherwise, for Seller to take any of the actions specified in paragraphs (a)
through (m) above.
3.10 INTELLECTUAL PROPERTY.
(a) Except as described in SCHEDULE 3.10 or SCHEDULE
3.11(k), Seller has exclusive ownership or has a licence to use all of the
Intellectual Property used in Seller's Business as presently conducted. Except
as set forth on SCHEDULE 3.10 or SCHEDULE 3.11(k), Seller's rights in all of
such Intellectual Property are freely transferable. There are no claims or
demands of any other person pertaining to any of such Intellectual Property and
no proceedings have been instituted, or are pending or threatened, which
challenge the rights of
24
Seller in respect thereof; and, except as set forth on SCHEDULE 3.10, Seller
has the right to use, free and clear of claims or rights of other persons,
the Customer Lists, designs, manufacturing or other processes, computer
software, systems, data compilations, research results and other information
required for or incident to its products or its Business as presently
conducted. None of the Intellectual Property has been, or will be, charged,
mortgaged or otherwise encumbered by Seller.
(b) All trademarks and common law copyrights which are
owned by or licensed to Seller or used by Seller in its Business as presently
conducted are listed in SCHEDULE 3.10. Seller owns no patents, registered
copyrights or registered designs and has no pending applications to register any
patents, copyrights, designs or trademarks. All of Seller's trademark
registrations have been duly registered in, filed in or issued by the
appropriate offices in the countries identified on said Schedule.
(c) All licenses or other agreements under which Seller
is granted rights in the intellectual property of others are listed in SCHEDULE
3.11(k). Except as stated in SCHEDULE 3.11(k), all said licenses or other
agreements are in full force and effect, Seller is not in default under any such
licenses or other agreements described in said Schedule and has no knowledge of
conditions or facts which with notice or the passage of time, or both, would
constitute a default, and, except as set forth on SCHEDULE 2.10 or SCHEDULE
3.11(k), all of the rights of Seller thereunder are freely assignable and will
be assigned to Buyer at the Closing. Except as set forth on SCHEDULE 3.11(k), to
the best of Seller's knowledge, the licensors under said licenses and other
agreements have and had all requisite power and authority to grant the rights
purported to be conferred thereby. Seller has provided or made available to
Buyer true and complete copies of all such licenses or other agreements, and any
amendments thereto. SCHEDULE 3.11(k) specifically references those licenses and
agreements which Seller is unable to locate and therefore have not been provided
to Buyer.
(d) In relation to registered rights, all registrations
forming part of the Intellectual Property have been maintained and all renewal
fees have been paid on time. Seller has received no adverse opinion (whether
from the registry concerned or its advisor) or notice of opposition in relation
to any such application.
(e) Seller has no licenses, authorizations (whether
express or implied) or other agreements under which Seller has granted rights to
others in Intellectual Property.
(f) Seller has required all of its employees to execute
agreements under which such employees are required to maintain the
confidentiality of any information concerning the Business, transactions,
secrets or affairs of Seller or of any of its customers or suppliers during or
after termination of their employment.
(g) Seller has no knowledge of any infringement by others
of any of its Intellectual Property rights.
25
(h) Seller's activities and products do not infringe any
intellectual property rights of any other person. No proceeding charging Seller
with infringement of any adversely held intellectual property rights has been
filed or is threatened to be filed and Seller has not received notice of any
breach and is not aware of any dispute or claim in relation to the Intellectual
Property or any other intellectual property. To the best of Seller's knowledge,
there exists no unexpired patent or patent application which includes claims
that would be infringed by or otherwise adversely affect the products,
activities or Business of Seller. Seller is not making unauthorized use of any
confidential information or trade secrets of any person, including, without
limitation, any former employer of any past or present employee of Seller.
Except as set forth in SCHEDULE 3.10, neither Seller nor, to the best of
Seller's knowledge, any of its employees have any agreements or arrangements
with any persons other than Seller related to confidential information or trade
secrets of such persons or restricting any such employee's ability to engage in
business activities of any nature. The activities of its employees on behalf of
Seller do not violate any such agreements or arrangements known to Seller which
any such employees have with other persons.
3.11 CONTRACTS. Except for contracts, commitments, plans,
agreements and licenses described in SCHEDULE 3.11, Seller is not a party to or
subject to:
(a) any plan or contract providing for bonuses, options,
share purchases, deferred compensation, profit sharing, collective bargaining or
the like, or any contract or agreement with any labor union;
(b) any employment contract or contract for services
which requires the payment of more than $10,000 annually or which is not
terminable within 30 days by Seller without liability for any penalty or
severance payment;
(c) any contract or agreement for the purchase of any
commodity, material or equipment, except purchase orders in the ordinary course
for less than $10,000 each, such purchase orders not exceeding $20,000 in the
aggregate;
(d) any other contracts or agreements creating any
obligations of Seller of $10,000 or more with respect to any such contract or
agreement not specifically disclosed elsewhere under this Agreement;
(e) any contract or agreement providing for the purchase
of all or substantially all of Seller's requirements of a particular product
from a supplier;
(f) any contract or agreement being assigned hereunder
involving more than $10,000 which by its terms does not terminate or is not
terminable without penalty by Seller or any successor or assign within one year
after the date hereof;
(g) any contract or agreement for the sale or lease of
its products not made in the ordinary course of business;
26
(h) any contract with any sales agent or distributor of
products of Seller;
(i) any confidentiality agreement or contract containing
covenants limiting the freedom of Seller to compete in any line of business or
with any person or entity;
(j) any contract or agreement for the purchase of any
fixed asset for a price in excess of $1,000 whether or not such purchase is in
the ordinary course of business;
(k) any license agreement (as licensor or licensee) or
agreement relating to Buyer Purchased Intellectual Property;
(l) any indenture, mortgage, promissory note, loan
agreement, credit agreement or arrangement, guaranty or other agreement or
commitment for the borrowing of money; or
(m) any contract or agreement (other than an employment
agreement listed on SCHEDULE 3.11 or not required to be so listed) with any
officer, employee or director. There are no agreements between Seller and any
shareholder of Seller or with any persons or organizations controlled by or
affiliated with any of them that are material, individually or in the aggregate,
to Seller's Business.
Seller is not in default under any such contracts, commitments, plans,
agreements or licenses described in SCHEDULE 3.11 and, except as expressly
disclosed on SCHEDULE 3.11, Seller has no knowledge of conditions or facts which
with notice or passage of time, or both, would constitute a default. Except as
set forth on SCHEDULE 2.10 and SCHEDULE 3.11, all such contracts, plans,
commitments, agreements and licenses and any other contracts or agreements
included within the Subject Assets are freely assignable and will be assigned to
Buyer at the Closing. Seller has provided or made available to Buyer true and
complete copies of all such contracts, commitments, plans, agreements or
licenses described in SCHEDULE 3.11, and any amendments thereto. SCHEDULE 3.11
specifically references those contracts, commitments, plans, agreements or
licenses which Seller is unable to locate and therefore have not been provided
to Buyer.
3.12 LITIGATION. There is no litigation or governmental or
administrative proceeding or investigation pending or, to the knowledge of
Seller, threatened against Seller or its affiliates which may have any adverse
effect on the properties, assets, prospects, financial condition or business of
Seller or which would prevent or hinder the consummation of the transactions
contemplated by this Agreement.
3.13 COMPLIANCE WITH LAWS. Seller is in compliance in all material
respects with all applicable statutes, ordinances, orders, judgments, decrees
and rules and regulations promulgated by any English or other governmental
authority which apply to Seller or to the conduct of its Business, and Seller
has not received notice of a violation or alleged violation of any such statute,
ordinance, order, rule or regulation.
27
3.14 INSURANCE. The physical properties and assets of Seller are
insured to the extent disclosed in SCHEDULE 3.14 and all such insurance policies
are disclosed in said Schedule. Said insurance policies are in full force and
effect, all premiums with respect thereto are currently paid, and Seller is in
compliance in all material respects with the terms thereof. Said insurance is
adequate and customary for the Business engaged in by Seller prior to the
Closing.
3.15 POWERS OF ATTORNEY. Seller has not granted powers of attorney
which are presently outstanding with respect to the Subject Assets.
3.16 FINDER'S FEE. Seller has not incurred or become liable for any
broker's commission or finder's fee relating to or in connection with the
transactions contemplated by this Agreement or any other agreement contemplated
hereby, except with respect to a fee due to ▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., which fee will
remain an obligation of Seller and be payable by Seller and will not be included
in either the Subject Assets or in the Assumed Liabilities hereunder.
3.17 PRODUCT LIABILITY OR OTHER CLAIMS. There are no existing or,
to the best of Seller's knowledge, threatened product or service liability or
other similar claims, or to the best of Seller's knowledge, any facts upon which
a material claim of such nature could be based, against Seller for products or
services which are defective.
3.18 GOVERNMENTAL APPROVALS; ORDERS AFFECTING THE BUSINESS.
SCHEDULE 3.18 lists all permits, registrations, licenses, franchises,
certifications and other approvals (collectively, the "Approvals") which are, to
the best of Seller's knowledge, required from English authorities in order for
Seller to conduct its Business. To the best of Seller's knowledge, all such
Approvals are valid and in full force and effect, and Seller is operating in
compliance therewith. Such Approvals include, but are not limited to, those
required under the laws of England and Wales pertaining to environmental
protection, public health and safety, worker health and safety, buildings,
highways or zoning. Except as disclosed in SCHEDULE 3.18, to the best of
Seller's knowledge, all such Approvals will be available to Buyer and remain in
full force and effect upon Buyer's purchase of the Subject Assets, and, to the
best of Seller's knowledge, no further Approvals will be required for Buyer to
conduct Seller's Business as currently conducted by Seller subsequent to the
Closing. Seller is not subject to or bound by any judgment, decree or order
which may materially and adversely affect its business or prospects, its
condition, financial or otherwise, or any of its assets or properties.
3.19 COPIES OF DOCUMENTS. Seller has made available for inspection
and copying by Buyer and its counsel complete and correct copies of all
documents referred to in the Schedules to this Agreement. Such Schedules
specifically reference those documents which Seller is unable to locate and
therefore have not been provided to Buyer.
3.20 TRANSACTIONS WITH INTERESTED PERSONS. To the best of Seller's
knowledge, no officer, management employee or director of Seller or any of their
respective spouses or family members, owns directly or indirectly on an
individual or joint basis any material interest in, or
28
serves as an officer or director or in another similar capacity of, any
competitor, distributor or supplier of Seller or any organization which has a
material contract or arrangement with Seller.
3.21 PENSION SCHEME. All capitalized terms used in this Section
3.21 not otherwise defined in this Agreement shall have the meanings ascribed to
them in EXHIBIT 2.14 attached hereto.
(a) Particulars of the Transferring Scheme have been
disclosed including true and complete copies of the following in relation to
each pension scheme:
(i) trust deeds and rules and all other deeds;
(ii) booklets currently in force and any
subsequent announcements to scheme
members;
(iii) latest finalized actuarial valuation
together with any subsequent valuation in
draft and any subsequent written
actuarial advice not included in such
valuations;
(iv) details of all Transferring Employees
(including dates of birth, sex, entry and
current salary and pensionable salary and
name of employer);
(v) details of contributions by the
Transferring Employees and the employer
in respect of them in the last three
years;
(vi) latest Transferring Scheme accounts and
trustee reports;
(vii) evidence of Inland Revenue approval;
(viii) contracting-out certificate;
(ix) insurance policies and certificates and
details of premiums paid; and
(x) details of ex-gratia pensions and any
discretionary increases in benefits given
in respect of any Transferring Employee
in the last three years.
Other than as disclosed there are no other pension schemes for current
or past directors or employees of Seller who will be transferring to the
employment of Buyer on the Closing Date.
29
(b) In relation to the Transferring Scheme:
(i) no power to augment benefits has been
exercised;
(ii) no discretion has been exercised to admit
an employee to membership of the pension
scheme who would not otherwise be
eligible;
(iii) no discretion has been exercised to
provide a benefit which would not
otherwise be provided;
(iv) all benefits (other than a refund of
contributions with interest where
appropriate) payable under the
Transferring Scheme on the death of a
member while in an employment to which
the Transferring Scheme relates or during
a period of sickness or disability of a
member are fully insured by a policy with
an insurance company of good repute. Each
member has been covered for insurance by
the insurance company at its normal rates
and on its normal terms for persons in
good health and all premiums payable have
been paid;
(v) there are no contributions to the
Transferring Scheme which are due but
unpaid and have remained unpaid for more
than one month and in any event
contributions have been paid which are at
least equal to and by the due date
specified in the schedule of
contributions under Section 58 of the
Pensions Act;
(vi) no take-over protection provision will be
triggered by the Closing Date; and
(vii) no amendment has been made in contravention
of Section 67 of the Pensions Act.
(c) The Transferring Scheme:
(i) is approved by the Board of Inland
Revenue for the purposes of Chapter I of
Part XIV of the Income and Corporation
Taxes ▇▇▇ ▇▇▇▇;
(ii) is established under irrevocable trusts;
and
(iii) has been administered in accordance with:
30
(A) the preservation requirements under the ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
(B) the equal access requirements of the ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
(C) the contracting-out requirements of the ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (where applicable);
(D) the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇; and
(E) all other applicable laws (including Article 119
of the Treaty of Rome save in respect of
guaranteed minimum pensions), regulations and
requirements of any competent governmental body
or regulatory authority and the trusts and rules
of the Transferring Scheme.
(d) No claim has been threatened or made or litigation
commenced against the trustees or administrator of the Transferring Scheme or
against Seller or any other person whom Seller is or may be liable to indemnify
or compensate in respect of any matter arising out of or in connection with the
Transferring Scheme. So far as Seller is aware there are no circumstances which
may give rise to any such claim or litigation. There are no unresolved disputes
under the Transferring Scheme's internal dispute resolution procedure.
3.22 ENVIRONMENTAL MATTERS.
(a) Seller represents and warrants that Seller's Business, the
Subject Assets and the Leasehold Property comply with, and the Subject Assets
and the Leasehold Property have been used in compliance with, all applicable
Environmental Laws and that none of Seller's Business, any of the Subject
Assets or the Leasehold Property is or has been the subject of any existing,
pending or threatened judgment, consent decree, compliance order,
administrative order, investigation or inquiry by any governmental authority or
subject to any remediation obligation under any Environmental Laws and, so far
as Seller is aware, there exist no circumstances that could give rise to any of
the foregoing. Seller further represents and warrants that Seller's Business,
the Subject Assets and the Leasehold Property comply in all material respects
with all applicable occupational health and safety regulations and similar
worker safety rules and regulations. SCHEDULE 3.22 sets forth a list of the
chemicals used by Seller prior to the Closing and details the internal
procedure for the disposal of chemicals. The use and disposal of such chemicals
by Seller has been in compliance with all applicable Environmental Laws at all
times prior to the Closing Date.
(b) Seller has disclosed to Buyer copies of: (i) the Due
Diligence Report relating to Pharmacia Biotech (Biochrom) Limited, Cambridge
(UK), prepared by ▇▇▇▇▇▇▇
31
Ricci dated March 11, 1997; and (ii) the Due Diligence Follow-Up Report
relating to Pharmacia Biotech (Biochrom) Limited, Cambridge (UK), prepared by
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ on or about August 6, 1998.
(c) "Environmental Laws" shall mean any environmental or health
and safety-related laws, regulations, rules, ordinances, or by-laws of England
and Wales, whether existing as of the date hereof or previously in force.
3.23 OFFICERS. SCHEDULE 3.23 contains a true and complete list of the
officers and directors of Seller immediately prior to the Closing.
3.24 EMPLOYEES.
(a) SCHEDULE 3.24 contains a list of all current managers and
employees of Seller who, individually, have received or are scheduled to
receive compensation, benefits, bonus, incentive schemes, commission, periods
of notice, pension, voluntary pension, annuities, rights under any retirement
benefits, life assurance or a hospital insurance scheme from Seller for the
fiscal year ending December 31, 1998 or December 31, 1999, listing the gross
compensation (including any bonuses) each such person received and/or is
scheduled to receive for the fiscal year ended December 31, 1998 and the fiscal
year ending December 31, 1999, respectively, and their job title or position.
Except as set forth on SCHEDULE 3.24, all such managers and employees were
employed by Seller as of the Closing Date (those persons so employed, the
"Employees"). In addition, except as set forth on SCHEDULE 3.24, none of the
Employees is a party to any employment agreement or other employment
arrangement with Seller other than Seller's standard employment agreement, a
copy of which is attached to SCHEDULE 3.24. Seller has no contracts or
agreements (whether written or oral) with consultants other than consulting
relationships terminable at will by Seller without payment of any fees,
penalties or other amounts by Seller.
(b) There is no dispute between Seller and any of the Employees
or any trades union existing or pending at the date of this Agreement and so
far as Seller is aware there are no circumstances likely to give rise to the
same.
(c) The Employees are the only employees of Seller whose
contract of employment will have effect as if originally made with Buyer by
reason of the Employment Regulations.
(d) There is no agreement or arrangement between Seller and any
trades union. Seller has informed and consulted the appropriate representatives
of the Employees.
(e) Other than with respect to gross compensation to be paid to
the Employees for the fiscal year ending December 31, 1999, which are set forth
on SCHEDULE 3.24, since June 30, 1998, no change has been made in the rates of
remuneration, emoluments, benefits or other terms of employment of any of the
Employees.
32
(f) None of the Employees has given or received notice
terminating his employment, nor will any of the Employees be entitled to give
notice as a result of the provisions of this Agreement.
(g) Except as set forth on SCHEDULE 3.24, there is not in
existence any written or unwritten contract of employment with any Employee (or
any contract for services with any person) which cannot be terminated by three
(3) months' notice or less without giving rise to a claim for damages or
compensation (other than a redundancy payment and/or statutory compensation for
unfair dismissal).
(h) Except as set forth on SCHEDULE 3.24, there are no
dispensations agreed with or notifications under Section 166 of the Taxes Act
1988 issued by the Inland Revenue which are currently in force in relation to
the Employees.
(i) There are no inquiries or investigations, existing, pending
or threatened, affecting Seller's Business by the Equal Opportunities
Commission or the Commission for Racial Equality.
3.25 CUSTOMERS, DISTRIBUTORS AND SUPPLIERS. SCHEDULE 3.25 is a true
and complete list of the customers, distributors and suppliers of Seller's
Business to whom Seller made payments or to whom Seller has shipped products
and issued invoices, as the case may be, aggregating $20,000 or more during the
fiscal year ended December 31, 1998, showing, with respect to each, the name,
address and volume in British Pounds Sterling involved (the "Customers,
Distributors and Suppliers"). Except as set forth on SCHEDULE 3.25, the
relationships of Seller with its Customers, Distributors and Suppliers are good
commercial working relationships and there have been no material adverse
changes to any of such relationships during said period.
3.26 VEHICLES. Except as set forth in SCHEDULE 3.26:
(a) the Vehicles are duly licensed and are, to the best of
Seller's knowledge, capable of being properly used for the purposes of Seller's
Business, roadworthy and maintained in a serviceable condition;
(b) all forms of taxation payable by Seller in respect of the
Vehicles have been fully paid; and
(c) the Vehicles have, to the best of Seller's knowledge, been
annually tested and passed as fit for service by the Department of Transport.
3.27 DISCLOSURE. The representations, warranties and statements of
Seller contained in this Agreement and in the certificates, exhibits and
schedules delivered by Seller pursuant to this Agreement do not contain any
untrue statement of a material fact, and, when taken together, do not, to the
best of Seller's knowledge, omit to state a material fact known to Seller
33
required to be stated therein or necessary in order to make such
representations, warranties or statements not misleading in light of the
circumstances under which they were made. There are no facts known to Seller
which presently or in the future will have a material adverse affect on the
business, properties, operations or condition of Seller which have not been
disclosed herein or in a Schedule furnished herewith, other than general
economic, industry and political conditions affecting the industries in which
Seller operates.
4. COVENANTS OF SELLER
4.1 MAKING OF COVENANTS AND AGREEMENTS. Seller hereby makes the
covenants and agreements set forth in this Section 4.
4.2 NOTICE OF DEFAULT. Promptly upon the occurrence of, or promptly
upon Seller becoming aware of the impending or threatened occurrence of, any
event which would cause or constitute a breach or default, or would have caused
or constituted a breach or default had such event occurred or been known to
Seller prior to the date hereof, of any of the representations, warranties or
covenants of Seller contained in or referred to in this Agreement or in any
Schedule or Exhibit referred to in this Agreement, Seller shall give detailed
written notice thereof to Buyer and shall use its best efforts to prevent or
promptly remedy the same.
4.3 CONSUMMATION OF AGREEMENT. Seller shall use its best efforts to
perform and fulfill all conditions and obligations on its part to be performed
and fulfilled under this Agreement, to the end that the transactions
contemplated by this Agreement shall be fully carried out.
4.4 NOTICE TO THIRD PARTIES.
(a) After the Closing, Seller shall notify any and all persons
or entities in possession of Off-Site Assets that title thereto has passed to
Buyer, such Off-Site Assets are then owned by Buyer, and such persons and
entities thereafter shall look solely to Buyer with respect to the ownership
thereof and for instructions with respect thereto.
(b) After the Closing, at the request of Buyer, Seller and
Buyer shall send a jointly executed letter to those persons and entities as
Buyer may request notifying such persons or entities of the consummation of the
transactions contemplated by this Agreement, such letter to be substantially in
the form of EXHIBIT 4.4.
4.5 PROTECTION OF GOODWILL.
(a) As further consideration for Buyer agreeing to purchase the
Subject Assets from Seller on the terms herein contained and with the intent of
assuring to Buyer the Goodwill, Seller and Seller Guarantor hereby undertake to
Buyer that (except with the prior written consent of Buyer) Seller and Seller
Guarantor shall not, either solely or jointly with any person or entity,
directly or indirectly, at any time within a period of two (2) years from
34
the Closing Date, in the United Kingdom of Great Britain and Northern Ireland
(or any other country in which Seller or any of its distributors has done
business within the twelve (12) months preceding the Closing Date):
(i) carry on or be engaged in the manufacture,
distribution or sale of any products of the same type which have been
manufactured, distributed or sold in the normal course of Seller's Business at
any time during the twelve (12) months preceding the Closing Date and which are
still manufactured, distributed or sold by Buyer at the relevant time; or
(ii) employ or solicit any of the Employees or entice any
of the Employees to decline employment with Buyer pursuant to Section 3.24 or
to terminate their employment with Buyer.
(b) Notwithstanding clause (a)(i) above, nothing in this
Agreement shall prevent Seller Guarantor from:
(i) engaging in the manufacture, distribution or sale of:
(A) mass spectrometers and related products or instruments in which mass
spectrometry technology is utilized; (B) chromatography instruments and related
products or instruments in which spectrophotometer technology is utilized; or
(C) electrophoresis instruments and related products or instruments in which
electrophoresis technology is utilized, including without limitation DNA
sequencing instruments; and
(ii) subject to the last sentence of this clause (b)(ii),
acquiring, being acquired by, or merging (in each case whether by sale of
stock, assets, or otherwise) with a company that sells spectrophotometers or
amino acid analyzers (a "Subject Company"); PROVIDED, HOWEVER, that Seller
Guarantor shall notify Buyer that it has entered into such a transaction within
thirty (30) days following the consummation of such transaction.
Notwithstanding the foregoing, (a) Seller Guarantor may not enter into such a
transaction with a Subject Company whose sales of spectrophotometers or amino
acid analyzers accounted for greater than fifty percent (50%) of the Subject
Company's gross revenues with respect to its most recently completed fiscal
year (a "Significant Portion") and (b) in the event that Seller Guarantor
enters into such a transaction with a Subject Company whose sales of
spectrophotometers or amino acid analyzers does not constitute a Significant
Portion of such Subject Company's business, then Seller Guarantor shall use
commercially reasonable efforts to dispose of that portion of such Subject
Company's business that sells spectrophotometers or amino acid analyzers.
(c) While each of the undertakings contained in Section 4.5(a)
above is considered by the parties to be reasonable, if any such undertaking
should be held invalid as an unreasonable restraint of trade or for any other
reason but would have been held valid if part of the wording thereof had been
deleted or the period thereof reduced or the range of activities or area dealt
with thereby reduced in scope, said undertaking shall apply with such
modifications as may be necessary to make them valid and effective.
35
(d) Each undertaking contained in Section 4.5(a) above shall be
read and construed independently of the other undertakings therein contained so
that if one or more should be held to be invalid as an unreasonable restraint
of trade or for any other reason whatsoever then the remaining undertakings
shall be valid to the extent that they are not held to be so invalid.
(e) The benefit of the undertakings contained in Section 4.5(a)
above may be assigned in whole or in part by Buyer in accordance with Section
11.6.
(f) The undertakings contained in Section 4.5(a) above are
given by each of Seller and Seller Guarantor for itself and (on the basis that
references to Seller or Seller Guarantor were treated as references to the
company concerned) on behalf of each company which is a member of the group of
companies to which Seller or Seller Guarantor belongs (formed by itself, its
holding company and any subsidiary of itself or any such holding company, as
such expressions are defined in the Companies Act 1985); and Seller and Seller
Guarantor hereby warrant to Buyer that each of Seller and Seller Guarantor,
respectively, has been duly authorized so to undertake. The preceding
notwithstanding, the undertakings contained in Section 4.5(a) above do not
apply to AP Biotech or any entity that, directly or indirectly, is
wholly-owned, or has not less than a majority of its voting power or economic
interests owned, by Amersham Pharmacia Biotech Ltd. (each, an "AP Biotech
Affiliate"), as similar undertakings with respect to AP Biotech or any AP
Affiliate are expressly contained in the Distribution Agreement.
4.6 CONFIDENTIALITY. Seller and Seller Guarantor agree that, after
the Closing has been consummated, Seller, Seller Guarantor, and their
respective officers, directors, agents, representatives and employees and
affiliates (other than the Employees) will hold in strict confidence, and will
not distribute or make available, any confidential or proprietary data or
information of Seller that is used in connection with or related to Seller's
Business, except:
(a) information which, as of the date hereof, is published or
otherwise generally available to the public;
(b) information which after the date hereof becomes available
to the public other than through an act or omission of the parties which is in
violation of the provisions hereof;
(c) information rightfully acquired from a third party which
did not obtain such information under a pledge of confidentiality;
(d) information which is developed by the disclosing party
independently of the relationship established by this Agreement; or
(e) any information which the disclosing party is required to
disclose by law (including the regulations of a stock exchange) or court order.
36
4.7 INTENTIONALLY OMITTED.
4.8 VALUE ADDED TAX.
(a) Buyer hereby represents that it will register under the
Value Added Tax ▇▇▇ ▇▇▇▇ as soon as practicable after the Closing. The parties
shall use all reasonable endeavors to secure that Section 49(1) of the Value
Added Tax ▇▇▇ ▇▇▇▇ and Article 5 of the Value Added Tax (Special Provisions)
Order 1995 shall apply to the transfer of Seller's Business hereunder.
Accordingly, Seller shall on or about Closing deliver to Buyer all records
referred to in the said Section 49 and shall not thereafter make any request to
H.M. Customs & Excise for such records to be taken out of the custody of Buyer.
Buyer hereby undertakes to preserve such records for such periods as may be
required by law.
(b) If, notwithstanding the provisions referred to above,
Seller is required to account to H.M. Customs & Excise for any Value Added Tax
on the sale hereunder, Buyer shall pay to Seller such taxation, including any
interest and penalties, in addition to the price otherwise agreed, such payment
by Buyer to be made forthwith on its payment by Seller to H.M. Customs & Excise
or, if later, delivery by Seller to Buyer of invoices for value added tax
purposes in respect thereof.
(c) Seller shall ensure that until Closing all such records are
kept and all such returns and payments are made in connection with Seller's
Business as may be required by law for the purposes of the enactments relating
to Value Added Tax.
(d) All Value Added Tax payable in respect of goods and
services supplied or deemed to be supplied by Seller prior to the Closing Date
and all interest payable thereon and penalties attributable thereto shall be
paid to H.M. Customs & Excise by Seller.
(e) In addition to its obligations under Section 4.8 above,
Seller shall on or before Closing give to Buyer written notice of the identity
of such of the Subject Assets as are capital items covered by the Capital Goods
Scheme pursuant to Part VA of the Value Added Tax (General) Regulations 1985
and deliver to Buyer all such information as shall be necessary to enable Buyer
to calculate any future adjustments to the deduction of input tax on such
Subject Assets.
4.9 AUDITED FINANCIAL STATEMENTS. Following the Closing, Seller
shall, in the ordinary course, complete or cause to be completed its audited
financial statements for the fiscal year ended December 31, 1998, with
appropriate footnotes, accompanied by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.'s, independent
public accountant, opinion, and Seller shall provide such financial statements
to Buyer promptly thereafter.
37
5. REPRESENTATIONS AND WARRANTIES OF BUYER
5.1 MAKING OF REPRESENTATIONS AND WARRANTIES. Buyer hereby makes the
representations and warranties to Seller contained in this Section 5. For the
purposes of this Agreement, references to "knowledge" or "best knowledge" of
Buyer or "known" by Buyer or words of similar import, shall be deemed to
include such knowledge as any executive officer employed by Buyer at the
Closing Date or manager of Buyer actually has.
5.2 ORGANIZATION OF BUYER. Buyer is a limited liability company duly
organized, validly existing and in good standing under the laws of England and
Wales with full corporate power to own or lease its properties and to conduct
its business in the manner and in the places where such properties are owned or
leased or such business is currently conducted or proposed to be conducted.
5.3 AUTHORITY OF BUYER.
(a) Each of Buyer and Buyer Guarantor has or has received full
right, authority and power to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by Buyer and Buyer
Guarantor pursuant to this Agreement (including, without limitation, the
Distribution Agreement) and to carry out the transactions contemplated hereby
and thereby. The execution, delivery and performance by Buyer and Buyer
Guarantor of this Agreement, and each such other agreement, document and
instrument (including, without limitation, the Distribution Agreement) have
been duly authorized by all necessary corporate action of Buyer and Buyer
Guarantor, respectively, and their respective shareholders, if required, and no
other action on the part of Buyer or Buyer Guarantor or their respective
shareholders is required in connection therewith.
(b) This Agreement, and each agreement, document and instrument
executed and delivered by Buyer and Buyer Guarantor pursuant to this Agreement
(including, without limitation, the Distribution Agreement) constitute, or when
executed and delivered will constitute, valid and binding obligations of Buyer
and Buyer Guarantor enforceable in accordance with their terms. The execution,
delivery and performance by Buyer and Buyer Guarantor of this Agreement and
each such agreement, document and instrument:
(i) does not and will not violate any provision of the
Memorandum of Association of Buyer or the Articles of Organization and By-laws
of Buyer Guarantor;
(ii) does not and will not violate any laws of England and
Wales, the United States, or, to the best of its knowledge, any nation, state
or other jurisdiction applicable to Buyer or Buyer Guarantor;
(iii) does not require Buyer or Buyer Guarantor to obtain
any approval, consent or waiver or make any filing prior to or on the Closing
Date or, solely as a result of the consummation of the transactions
contemplated by this Agreement, following the
38
Closing Date with any person or entity (governmental or otherwise) that has not
been obtained or made; and
(iv) does not and will not result in a breach of,
constitute a default under, accelerate any obligation under, or give rise to a
right of termination of any indenture or loan or credit agreement or any other
agreement, contract, instrument, mortgage, lien, lease, permit, authorization,
order, writ, judgment, injunction, decree, determination or arbitration award
to which Buyer or Buyer Guarantor is a party or by which the property of Buyer
or Buyer Guarantor is bound or affected.
5.4 FINDER'S FEE. Buyer has not incurred or become liable for any
broker's commission or finder's fee relating to or in connection with the
transactions contemplated by this Agreement or any other agreement contemplated
hereby.
6. COVENANTS OF BUYER
6.1 MAKING OF COVENANTS AND AGREEMENT. Buyer hereby makes the
covenants and agreements set forth in this Section 6.
6.2 NOTICE OF DEFAULT. Promptly upon the occurrence of, or promptly
upon Buyer becoming aware of the impending or threatened occurrence of, any
event which would cause or constitute a breach or default, or would have caused
or constituted a breach or default had such event occurred or been known to
Buyer prior to the date hereof, of any of the representations, warranties or
covenants of Buyer contained in or referred to in this Agreement or in any
Schedule or Exhibit referred to in this Agreement, Buyer shall give detailed
written notice thereof to Seller and shall use its best efforts to prevent or
promptly remedy the same.
6.3 CONSUMMATION OF AGREEMENT. Buyer shall use its best efforts to
perform and fulfill all conditions and obligations on its parts to be performed
and fulfilled under this Agreement, to the end that the transactions
contemplated by this Agreement shall be fully carried out.
7. CONDITIONS
7.1 CONDITIONS TO THE OBLIGATIONS OF BUYER. The obligation of Buyer
to consummate this Agreement and the transactions contemplated hereby is
subject to the fulfillment, prior to or at the Closing, of the following
conditions precedent and the delivery of the following documents:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the
representations and warranties of Seller contained in Section 3 shall be true
and correct as though made on and as of the Closing; Seller shall, on or before
the Closing, have performed all of its obligations hereunder which by the terms
hereof are to be performed on or before the Closing.
39
(b) NO MATERIAL CHANGE. There shall have been no material
adverse change in the financial condition, prospects, properties, assets,
liabilities, business or operations of Seller since June 30, 1998.
(c) CERTIFICATE FROM OFFICERS. Seller shall deliver to Buyer a
certificate dated as of the Closing to the effect that: (i) the statements set
forth in paragraph (a) and (b) above in this Section 7.1 are true and correct;
and (ii) all bolts and fastenings attaching plant, machinery or fittings to
land or buildings (insofar as included in the sale hereunder) which can safely
be undone have been undone so that the same shall be severed at the Closing
Date and title thereto shall pass by delivery.
(d) APPROVAL OF BUYER'S COUNSEL. All instruments and documents
required to carry out this Agreement and the transactions contemplated hereby
shall be consistent with the forms attached as exhibits hereto or shall
otherwise have been reasonably approved by ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, each as counsel for Buyer.
(e) INTENTIONALLY OMITTED.
(f) INTENTIONALLY OMITTED.
(g) DISTRIBUTION AGREEMENT. Seller shall deliver two (2)
originals of the Distribution Agreement in the form of EXHIBIT 7.1(g) executed
by AP Biotech.
(h) LICENSE TO THE "PHARMACIA BIOTECH" NAME. Seller shall
deliver two (2) originals of the License Agreement relating to the "Pharmacia
Biotech" name in the form of EXHIBIT 7.1(h) executed by Seller Guarantor.
(i) LICENSE TO THE "AMERSHAM" NAME. Seller shall deliver two
(2) originals of the License Agreement relating to the "Amersham" name in the
form of EXHIBIT 7.1(i) executed by Amersham International plc.
(j) DELIVERY OF REQUIRED CONSENTS. Seller shall deliver to
Buyer the Required Consents that it has obtained prior to the Closing.
(k) ▇▇▇▇ OF SALE TO BUYER. Seller shall deliver two (2)
originals of the ▇▇▇▇ of Sale in the form of EXHIBIT 7(k) executed by Seller.
(l) INTENTIONALLY OMITTED.
(m) INTENTIONALLY OMITTED.
(n) ASSIGNMENT OF CONTRACTS AND ASSUMPTION OF LIABILITIES.
Seller shall deliver two (2) originals of the Assignment of Contracts and
Assumption of Liabilities in the form of EXHIBIT 7.1(n).
40
(o) NAME CHANGE RESOLUTIONS. Seller shall deliver a
certified copy of a special resolution changing its name to some other name not
incorporating the word "Biochrom" or any other word or combination of words
capable of confusion therewith.
7.2 CONDITIONS TO OBLIGATIONS OF SELLER. Seller's obligation to
consummate this Agreement and the transactions contemplated hereby is subject to
the fulfillment, prior to or at the Closing, of the following conditions
precedent and the delivery of the following documents:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the
representations and warranties of Buyer contained in Section 5 shall be true and
correct as though made on and as of the Closing; Buyer shall, on or before the
Closing, have performed all of its obligations hereunder which by the terms
hereof are to be performed on or before the Closing.
(b) CERTIFICATE FROM OFFICERS. Buyer shall deliver to
Seller a certificate dated as of the Closing to the effect that the statements
set forth in paragraph (a) above in this Section 7.2 are true and correct.
(c) APPROVAL OF SELLER'S COUNSEL. All instruments and
documents required to carry out this Agreement and the transactions contemplated
hereby shall be consistent with the forms attached as exhibits hereto or shall
otherwise have been reasonably approved by ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle,
as counsel for Seller.
(d) DISTRIBUTION AGREEMENT. Buyer shall deliver two (2)
originals of the Distribution Agreement in the form of EXHIBIT 7.1(g) executed
by Buyer.
(e) LICENSE TO THE "PHARMACIA BIOTECH" NAME. Buyer shall
deliver two (2) originals of the License Agreement relating to the "Pharmacia
Biotech" name in the form of EXHIBIT 7.1(h) executed by Buyer.
(f) LICENSE TO THE "AMERSHAM" NAME. Buyer shall deliver
two (2) originals of the License Agreement relating to the "Amersham" name in
the form of EXHIBIT 7.1(i) executed by Buyer.
(g) ASSIGNMENT OF CONTRACTS AND ASSUMPTION OF
LIABILITIES. Buyer shall deliver two (2) originals of the Assignment of
Contracts and Assumption of Liabilities in the form of EXHIBIT 7.1(n).
7.3 FURTHER CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER. Each of
Buyer's and Seller's obligation to consummate this Agreement and the
transactions contemplated hereby is subject to the fulfillment, prior to or at
the Closing, of the following conditions precedent:
(a) GOVERNMENTAL MATTERS. No government or governmental,
quasi-governmental supranational or state agency or regulatory body professional
association
41
or trade union or court or any other person or organization in any
jurisdiction having by the date on which all the other conditions set out in
this Section 7 have either been fulfilled or waived:
(i) instituted, implemented or threatened any
action, suit or investigation to restrain, prohibit or otherwise challenge or
interfere with the transaction proposed hereunder or any part thereof;
(ii) threatened to take any action as a result
or in anticipation of the implementation of such transaction or any part
thereof; or
(iii) proposed or enacted any statute or
regulation which would prohibit, materially restrict or materially delay
implementation of such transaction or any part thereof or the operations of
Seller.
(b) LEASEHOLD PROPERTY MATTERS.
(i) Seller shall have entered into the Deed of
Surrender of Lease with Buyer and shall have terminated the Seller Lease with
the consent of Buyer; and
(ii) Following the termination of the Seller
Lease as described in clause (i) above, Buyer shall have entered into a lease
agreement with Trinity College with respect to the Leasehold Property on terms
acceptable to Buyer, in its sole discretion.
8. INTENTIONALLY OMITTED
9. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING
9.1 SURVIVAL OF WARRANTIES. The representations, warranties,
agreements, covenants and obligations in this Agreement or any other agreement
schedule, exhibit or certificate executed by Seller or Seller Guarantor are
material, shall be deemed to have been relied upon by the other party and shall
survive the Closing for the period of time as to which indemnification is
payable under Section 10 with respect thereto, regardless of any investigation
or knowledge acquired on the part of Buyer or its affiliates and shall not merge
in the performance of any obligation by either party hereto.
9.2 PAYMENT OF EXCLUDED LIABILITIES. Seller shall pay or perform
all of the Excluded Liabilities in accordance with their terms as soon as
practicable.
9.3 PAYMENT OF ASSUMED LIABILITIES. Buyer shall pay all of the
Assumed Liabilities and perform its obligations under the Assumed Contracts in
accordance with their terms as soon as practicable.
42
10. INDEMNIFICATION
10.1 INDEMNIFICATION BY SELLER. Seller agrees subsequent to the
Closing to indemnify and hold Buyer and its shareholders, subsidiaries and
affiliates and persons serving as officers, directors, partners or employees
thereof (individually a "Buyer Indemnified Party" and collectively, the "Buyer
Indemnified Parties") harmless from and against any damages, actions,
proceedings, demands, liabilities, diminution in value, losses, taxes, fines,
penalties, costs, claims and expenses (including, without limitation, reasonable
fees of counsel) of any kind or nature whatsoever (whether or not arising out of
third-party claims and including all amounts paid in investigation, defense or
settlement of the foregoing) which may be sustained or suffered by any of them
arising out of or based upon any of the following matters:
(a) fraud, dishonesty, intentional misrepresentation or a
deliberate or willful breach by Seller of any of its representations,
warranties, agreements or covenants under this Agreement or any other agreement,
certificate, schedule or exhibit executed by Seller or Seller Guarantor and
delivered pursuant hereto;
(b) any other breach of any representation or warranty of
Seller under this Agreement or any other agreement, certificate, schedule or
exhibit executed by Seller or Seller Guarantor and delivered pursuant hereto, or
by reason of any claim, action or proceeding asserted or instituted growing out
of any matter or thing constituting a breach of such representations or
warranties;
(c) any breach of any agreement or covenant of Seller
under this Agreement or any other agreement, certificate, schedule or exhibit
executed by Seller and delivered pursuant hereto, or by reason of any claim,
action or proceeding asserted or instituted growing out of any matter or thing
constituting a breach of such covenants;
(d) any failure by Seller to perform and discharge any of
the Excluded Liabilities, including its obligations pursuant to Sections 2.2(d)
and (f) hereof;
(e) any liability of Seller for Taxes (as defined in
Section 3.6 hereof), whether levied or imposed in the United Kingdom or
elsewhere, of whatever nature and whether past, present or, solely to the extent
arising from the Subject Assets or from the conduct of the Business, including
the Excluded Liabilities, by Seller prior to the Closing Date, future, and all
penalties, charges, costs and interest relating to the same and any penalties
chargeable for non-compliance by Seller with any statutory provisions or
regulations in connection therewith; and
(f) any liability (whether arising before or after the
Closing Date) relating to any environmental or worker health and safety matter
of any kind or nature whatsoever, known or unknown, asserted or unasserted, that
arises in connection with or on the basis of events, acts, omissions,
conditions, or any other state of facts occurring or existing prior to or on the
Closing Date.
43
10.2 LIMITATIONS ON INDEMNIFICATION BY SELLER. Notwithstanding the
foregoing, the right of Buyer Indemnified Parties to indemnification under
Section 10.1 shall be subject to the following provisions:
(a) No indemnification shall be payable pursuant to
Section 10.1(b) to any Buyer Indemnified Party, unless the total of all claims
for indemnification pursuant to Section 10.1(b) (a "Buyer Indemnification
Claim") shall exceed $50,000 in the aggregate (the "Buyer $50,000 Threshold"),
whereupon the full amount of such Buyer Indemnification Claims shall be
recoverable in accordance with the terms hereof. In the event that a Buyer
Indemnified Party makes a Buyer Indemnification Claim that, individually, or
together with all other such Buyer Indemnification Claims, exceeds the Buyer
$50,000 Threshold, thereafter no indemnification shall be payable with respect
to any subsequently made Buyer Indemnification Claim pursuant to Section 10.1(b)
to any Buyer Indemnified Party, unless the total of all such subsequently made
Buyer Indemnification Claims shall exceed $10,000 in the aggregate (the "Buyer
$10,000 Threshold"), whereupon the full amount of such subsequently made Buyer
Indemnification Claims shall be recoverable in accordance with the terms hereof;
PROVIDED, HOWEVER, that if the Buyer $50,000 Threshold has been exceeded and on
the Indemnification Cut-Off Date (as defined below) there exist subsequently
made Buyer Indemnification Claims that do not, in the aggregate, exceed the
Buyer $10,000 Threshold, the full amount of such subsequently made Buyer
Indemnification Claims shall be recoverable in accordance with the terms hereof.
(b) No indemnification shall be payable to a Buyer
Indemnified Party with respect to Buyer Indemnification Claims asserted pursuant
to Section 10.1(b) (exclusive of Buyer Indemnification Claims for
indemnification for Taxes or a breach of any representation, warranty or
covenant with respect to Taxes or tax related matters, environmental related
matters and title to the Subject Assets) after March 31, 2001 (the
"Indemnification Cut-Off Date"), except in respect of matters which have been
the subject of a bona fide written Buyer Indemnification Claim which is made
before the Indemnification Cut-Off Date by or on behalf of a Buyer Indemnified
Party to Seller; and
(c) Buyer Indemnified Parties shall not be entitled to
indemnification (A) with respect to claims asserted pursuant to Sections
10.1(b)-(e) hereof in an amount in excess of the Purchase Price or (B) with
respect to claims asserted pursuant to Sections 10.1(f) hereof in an amount in
excess of $15,000,000.
10.3 INDEMNIFICATION BY BUYER. Buyer agrees subsequent to the
Closing to indemnify and hold Seller and its shareholders, subsidiaries,
affiliates and persons serving as officers, directors, partners or employees
thereof (individually a "Seller Indemnified Party" and collectively, the "Seller
Indemnified Parties") harmless from and against any damages, actions,
proceedings, demands, liabilities, diminution in value, losses, taxes, fines,
penalties, costs, claims and expenses (including, without limitation, reasonable
fees of counsel) of any kind or nature whatsoever (whether or not arising out of
third-party claims and including all amounts
44
paid in investigation, defense or settlement of the foregoing) which may be
sustained or suffered by any of them arising out of or based upon any of the
following matters:
(a) fraud, dishonesty, intentional misrepresentation or a
deliberate or willful breach by Buyer of any of its representations, warranties,
agreements or covenants under this Agreement or any other agreement (other than
the Distribution Agreement), certificate, schedule or exhibit executed by Buyer
or Buyer Guarantor and delivered pursuant hereto;
(b) any other breach of any representation or warranty of
Buyer under this Agreement or any other agreement (other than the Distribution
Agreement), certificate, schedule or exhibit executed by Buyer or Buyer
Guarantor and delivered pursuant hereto, or by reason of any claim, action or
proceeding asserted or instituted growing out of any matter or thing
constituting a breach of such representations or warranties;
(c) any breach of any agreement or covenant of Buyer
under this Agreement or any other agreement entered into in connection herewith
(other than the Distribution Agreement) or in any certificate delivered by Buyer
pursuant hereto, or by reason of any claim, action or proceeding asserted or
instituted growing out of any matter or thing constituting a breach of such
covenant;
(d) any failure by Buyer to perform and discharge any of
the Assumed Liabilities, including its obligations pursuant to Sections 2.2(d)
and (f) hereof; and
(e) any liability relating to any environmental or worker
health and safety matter of any kind or nature whatsoever, known or unknown,
asserted or unasserted, that arises in connection with or on the basis of
events, acts, omissions, conditions, or any other state of facts caused by
Buyer, its affiliates, directors, officers, employees, agents or representatives
after the Closing Date.
10.4 LIMITATION ON INDEMNIFICATION BY BUYER. Notwithstanding the
foregoing, the right of Seller Indemnified Parties to indemnification under
Section 10.3 shall be subject to the following provisions:
(a) No indemnification shall be payable pursuant to
Section 10.3(b) to any Seller Indemnified Party, unless the total of all claims
for indemnification pursuant to Section 10.3(b) (a "Seller Indemnification
Claim") shall exceed $50,000 in the aggregate (the "Seller $50,000 Threshold"),
whereupon the full amount of such Seller Indemnification Claims shall be
recoverable in accordance with the terms hereof. In the event that a Seller
Indemnified Party makes a Seller Indemnification Claim that, individually, or
together with all other Seller Indemnification Claims, exceeds the Seller
$50,000 Threshold, thereafter no indemnification shall be payable with respect
to any subsequently made Seller Indemnification Claim pursuant to Section
10.3(b) to any Seller Indemnified Party, unless the total of all such
subsequently made Seller Indemnification Claims shall exceed $10,000 in the
aggregate (the "Seller $10,000 Threshold"), whereupon the full amount of such
subsequently made Seller Indemnification
45
Claims shall be recoverable in accordance with the terms hereof; PROVIDED,
HOWEVER, that if the Seller $50,000 Threshold has been exceeded and on the
Indemnification Cut-Off Date there exist subsequently made Seller
Indemnification Claims that do not, in the aggregate, exceed the Seller
$10,000 Threshold, the full amount of such subsequently made Seller
Indemnification Claims shall be recoverable in accordance with the terms
hereof.
(b) No indemnification shall be payable to a Seller
Indemnified Party with respect to Seller Indemnification Claims asserted
pursuant to Section 10.3(b) (exclusive of Seller Indemnification Claims for
indemnification for a breach of any representation, warranty or covenant with
respect to payment of Value Added Taxes) after the Indemnification Cut-Off Date,
except in respect of matters which have been the subject of a bona fide written
Seller Indemnification Claim which is made before the Indemnification Cut-Off
Date by or on behalf of Seller to Buyer; and
(c) Seller Indemnified Parties shall not be entitled to
indemnification (A) with respect to claims asserted pursuant to Sections
10.3(b)-(d) hereof in an amount in excess of the Purchase Price or (B) with
respect to claims asserted pursuant to Sections 10.3(e) hereof in an amount in
excess of $15,000,000.
10.5 NOTICE; DEFENSE OF CLAIMS.
(a) An indemnified party may make claims for
indemnification hereunder by giving written notice thereof to the indemnifying
party within the period in which indemnification claims can be made hereunder.
If indemnification is sought for a claim or liability asserted by a third party,
the indemnified party shall also give written notice thereof to the indemnifying
party promptly after it receives notice of the claim or liability being
asserted, but the failure to do so shall not relieve the indemnifying party from
any liability except to the extent that it is prejudiced by the failure or delay
in giving such notice. Such notice shall summarize the bases for the claim for
indemnification and any claim or liability being asserted by a third party.
(b) Within thirty (30) days after receiving such notice
the indemnifying party shall give written notice to the indemnified party
stating whether it disputes the claim for indemnification and whether it will
defend against any third party claim or liability at its own cost and expense.
(i) With respect to any claim for
indemnification (other than a claim or liability asserted by a third party), if
the indemnifying party fails to give notice that it disputes an indemnification
claim within thirty (30) days after receipt of notice thereof, it shall be
deemed to have accepted and agreed to the claim, which shall become immediately
due and payable.
(ii) With respect to any claim or liability being
asserted by a third party, the indemnifying party shall be entitled to direct
the defense against a third party claim
46
or liability with counsel selected by it (subject to the consent of the
indemnified party, which consent shall not be unreasonably withheld) as long
as the indemnifying party is conducting a good faith and diligent defense.
The indemnified party shall at all times have the right to fully
participate in the defense of a third party claim or liability at its own
expense directly or through counsel; PROVIDED, HOWEVER, that if the named
parties to the action or proceeding include both the indemnifying party and the
indemnified party and the indemnified party is advised by its own counsel that
representation of both parties by the same counsel would be inappropriate under
applicable standards of professional conduct, the indemnified party may engage
separate counsel at the reasonable expense of the indemnifying party. If the
indemnifying party fails to give notice as required by the first sentence of
this paragraph (b) stating whether it disputes the claim for indemnification and
whether it will defend against any third party claim or liability at its own
cost or expense, or if such good faith and diligent defense is not being or
ceases to be conducted by the indemnifying party, the indemnified party shall
have the right, at the expense of the indemnifying party, to undertake the
defense of such claim or liability (with counsel selected by the indemnified
party), and to compromise or settle it, exercising reasonable business judgment.
If the third party claim or liability is one that by its nature cannot be
defended solely by the indemnifying party, then the indemnified party shall make
available such information and assistance as the indemnifying party may
reasonably request and shall cooperate with the indemnifying party in such
defense, at the expense of the indemnifying party.
11.MISCELLANEOUS
11.1 WARRANTY OBLIGATIONS. In the event that there exist warranty
claims relating to products sold by Seller prior to the Closing Date, Seller
shall be responsible to perform the obligations associated with such warranty
claims (the "Warranty Obligations"). Notwithstanding the foregoing, Buyer agrees
to perform the Warranty Obligations on Seller's behalf, subject to receipt of
payment as provided below. In connection with the performance of the Warranty
Obligations, Buyer shall invoice Seller reflecting (a) the cost for parts used
by Buyer in, and Buyer's labor costs associated with, the performance of the
Warranty Obligations, at Buyer's then current rates for such parts and labor and
(b) reasonable out-of-pocket travel and accommodation expenses associated with
Buyer's performance of the Warranty Obligations. Seller agrees to pay each such
invoice within thirty (30) days following Seller's receipt thereof.
11.2 FEES AND EXPENSES.
(a) Except as otherwise provided in this Agreement, each
of the parties will bear its own expenses in connection with the negotiation and
the consummation of the transactions contemplated by this Agreement, and no
expenses of Seller relating in any way to the purchase and sale of the Subject
Assets hereunder and the transactions contemplated
47
hereby, including, without limitation, legal, accounting or other
professional expenses of Seller, shall be charged to or paid by Buyer or
included in any of the Assumed Liabilities.
(b) Buyer shall pay any stamp duty on this Agreement and
on any assignments to the Subject Assets together with any Land Registry fees.
11.3 GOVERNING LAW. This Agreement shall be construed under and
governed by the internal laws of the State of New York without regard to its
conflict of laws provisions. The preceding notwithstanding, the parties
acknowledge that Seller's Business is situated in England and Wales and that,
accordingly, the laws of England and Wales of a mandatory nature may apply to
certain matters, including without limitation, employment, pension,
environmental, tax and competition matters.
11.4 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered personally or sent by facsimile transmission (receipt
acknowledged), upon receipt, or if sent by first class registered, certified or
recorded delivery post, upon the sooner of the date on which receipt is
acknowledged or the expiration of five (5) Business Days after deposit into the
custody of the relevant postal authorities properly addressed with postage
prepaid. All notices to a party will be sent to the addresses set forth below or
to such other address or person as such party may designate by notice to each
other party hereunder:
TO BUYER: Harvard Apparatus, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
▇▇▇▇▇ ▇▇▇▇▇, President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: H. ▇▇▇▇▇ ▇▇▇▇▇▇, P.C.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
TO SELLER: Pharmacia & Upjohn, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Pharmacia & Upjohn Limited
Davy Avenue
Knowlhill
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice given hereunder may be given on behalf of any party by his
counsel or other authorized representatives. In proving service of a notice it
shall be sufficient to prove that personal delivery was made, or that the
envelope containing such notice was properly addressed and delivered into the
custody of the postal authorities as a prepaid first class registered or
recorded delivery letter or Datapost letter as the case may be.
11.5 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits referred to herein and other agreements entered into in connection
herewith (including, without limitation, the Distribution Agreement) and the
other writings specifically identified herein or contemplated hereby, is
complete, reflects the entire agreement of the parties with respect to its
subject matter, and supersedes all previous written or oral negotiations,
commitments and writings. No promises, representations, understandings,
warranties and agreements have been made by any of the parties hereto except as
referred to herein or therein in such Schedules and Exhibits or in such other
writings; and all inducements to the making of this Agreement and such other
agreements relied upon by either party hereto have been expressed herein or in
such Schedules or Exhibits or in such other writings.
11.6 ASSIGNABILITY; BINDING EFFECT. This Agreement may not be
assigned by a party without the prior written consent of the other parties
hereto, which shall not be unreasonably withheld. This Agreement shall be
binding upon and enforceable by, and shall inure to the benefit of, the parties
hereto and their respective heirs, successors and permitted assigns.
11.7 EXECUTION IN COUNTERPARTS. For the convenience of the parties
and to facilitate execution, this Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
49
11.8 AMENDMENTS. This Agreement may not be amended or modified, nor
may compliance with any condition or covenant set forth herein be waived, except
by a writing duly and validly executed by each party hereto, or in the case of a
waiver, the party waiving compliance.
11.9 PUBLICITY AND DISCLOSURES.
(a) Except if and insofar as required by law (including
any applicable stock exchange regulation), no press releases, announcements or
public disclosure, either written or oral, of the transactions contemplated by
this Agreement, shall be made by a party to this Agreement without the prior
knowledge and written consent of Buyer and Seller.
(b) Seller and Buyer each undertake to provide all such
information known to it or which on reasonable inquiry ought to be known to it
as may reasonably be required by Buyer, Seller or Seller Guarantor for the
purpose of complying with the requirements of law (including any applicable
stock exchange regulation).
11.10 AGREEMENT TO CONTINUE IN FULL FORCE. This Agreement shall,
insofar as it remains to be performed, continue in full force and effect
notwithstanding Closing.
11.11 DISPUTE RESOLUTION.
(a) The parties hereby agree to cooperate in good faith
to resolve any disputes, claims or controversies that may arise hereunder or
with respect to the performance by either party of its obligations as
contemplated hereby.
(b) Except as provided below, in the event that any
dispute, claim or controversy shall not be so resolved by the parties among
themselves, the parties agree that any and all disputes, claims or controversies
arising out of or relating to this Agreement or a breach thereof, whether
grounded in common law or statutory law, shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce, in New York City,
New York.
(c) The arbitration shall be conducted by three (3)
arbitrators, one (1) selected by each of Seller and Buyer and the third
appointed by the two (2) arbitrators selected by such parties. The judgment of
the three (3) arbitrators shall be rendered no later than the earlier of (i) one
year after such dispute is submitted to arbitration in accordance with this
Section 11.11 or (ii) such shorter period of time as the three (3) arbitrators
shall determine at the outset of such arbitration to be reasonable in light of
the nature of such dispute (which such determination shall be memorialized in
writing and delivered to the parties hereto).
(d) Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
50
(e) Except as provided below, the failure or refusal of a
party to submit to arbitration in accordance with this Section 11.11 shall be
deemed a breach of this Agreement. If a party seeks and secures judicial
intervention requiring enforcement of this arbitration provision, such party
shall be entitled to recover from the other party(ies) in such judicial
proceeding all costs and expenses, including reasonable attorneys' fees, that it
was thereby required to incur.
Notwithstanding anything to the contrary contained herein, the
provisions of this Section 11.11 shall not apply with regard to any equitable
remedies to which any party may be entitled hereunder.
Each of the parties hereto (a) hereby irrevocably submits to the
jurisdiction of the United States District Court of the State of New York for
the purpose of enforcing the award or decision in any such proceeding, (b)
hereby waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named court, that its
property is exempt or immune from attachment or execution (except as protected
by applicable law), that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement or the subject matter hereof may not be enforced in or by
such court, and hereby waives and agrees not to seek any review by any court of
any other jurisdiction which may be called upon to grant an enforcement of the
judgment of any such court. Each of the parties hereto hereby consents to
service of process by registered or certified mail at the address to which
notices are to be given. Each of the parties hereto agrees that its or his
submission to jurisdiction and its or his consent to service of process by mail
is made for the express benefit of the other parties hereto. Final judgment
against any party hereto in any such action, suit or proceeding may be enforced
in other jurisdictions by suit, action or proceeding on the judgment, or in any
other manner provided by or pursuant to the laws of such other jurisdiction.
11.12 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained in this Agreement shall
not be in any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
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51
AS WITNESS the hands of the parties hereto or their duly authorized
representatives within the United States the day and year first above written.
Signed by Biochrom )
Limited acting by ) /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
) ------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and )
▇▇▇▇▇ ▇▇▇▇▇ ) /S/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Signed by Pharmacia )
Biotech (Biochrom) ) /S/ ▇▇▇▇▇▇ ▇▇▇
) ------------------------------------
Limited acting by ) ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ )
and )
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ) /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The undersigned hereby agrees to guarantee the obligations of Buyer
under this Agreement, including, without limitation, Buyer's indemnification
obligations pursuant to Section 10 hereto and further agrees to be bound by the
provisions of Section 2.1(c) hereto.
Signed by an authorized signatory of
HARVARD APPARATUS, INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
The undersigned hereby agrees to guarantee the obligations of Seller
under this Agreement including, without limitation, Seller's indemnification
obligations pursuant to Section 10 hereto and further agrees to be bound by the
provisions of Section 4.5 hereto.
Signed by an authorized signatory of
PHARMACIA & UPJOHN, INC.
By: /S/ MATS PETTERSSON
-------------------------
Name: Mats Pettersson
Title: Senior Vice President,
Business Development