EXHIBIT 2
ASSET PURCHASE AGREEMENT
(All Assets of Seller)
Dated as of ____________ __, 1996
between
biosys, inc., Crop Genetics International Corporation,
and Agridyne Technologies, Inc., Seller
and
Thermo Trilogy Corp., Buyer
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ASSET PURCHASE AGREEMENT
(All Assets of Seller)
THIS ASSET PURCHASE AGREEMENT dated as of __________ __,
1996, between Thermo Trilogy Corp., a Delaware corporation (the
"Buyer"), and biosys, inc., a Delaware corporation,
Debtor-in-Possession (_biosys_) and Crop Genetics International
Corporation, a Delaware corporation, Debtor-in-Possession
("Crop") and Agridyne Technologies, Inc., a Delaware corporation,
Debtor-in-Possession (_Agridyne_) (biosys, Crop and Agridyne
collectively, the "Seller").
RECITALS:
The Buyer desires to purchase from the Seller the assets of
the Seller (the "Business") and the Seller desires to sell such
assets to the Buyer upon the terms and subject to the conditions
hereinafter set forth.
Unless elsewhere defined herein, defined terms used in this
Agreement shall have the respective meanings ascribed thereto in
Article VII hereof.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises
herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
1.1. Acquired Assets. On and subject to the terms and
conditions of this Agreement, at the Closing (as defined in
Section 2.2), the Buyer shall purchase from the Seller, and the
Seller shall sell, transfer, assign, convey and deliver to the
Buyer, all right, title and interest in and to all of the assets,
business, goodwill and rights of the Business held by such Seller
including the assets described on Schedule 1.1 (collectively the
"Acquired Assets"), as the same shall exist immediately prior to
the Closing, free and clear of all liens, claims and
encumbrances, except as otherwise agreed.
1.2. Excluded Assets. Anything contained in Section 1.1 or
elsewhere herein to the contrary notwithstanding, the Acquired
Assets shall not include the following assets and rights of the
Seller (collectively, the "Excluded Assets"):
(a) all rights to receive mail and other
communications addressed to the Seller relating to any of the
Excluded Assets or the Excluded Liabilities;
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(b) the corporate charter, qualifications to conduct
business as a foreign corporation, arrangements with registered
agents relating to foreign qualifications, taxpayer and other
identification numbers, seals, minute books, stock transfer
books, blank stock certificates and other documents relating to
the organization, maintenance and existence of the Seller as a
corporation and any documents or other material (other than
documents and materials relating to Intellectual Property and
products of the Seller) relating to the Seller which are subject
to the attorney-client privilege; notwithstanding the foregoing,
each of the Buyer and Seller agree and acknowledge that the
transfer of information and/or documentation from the Seller to
the Buyer as required herein is intended to preserve, and does
not waive, any applicable privileges, including, but not limited
to, the attorney-client privilege and the work product privilege;
(c) any Bankruptcy Recoveries;
(d) any contracts, agreements, leases or commitments of
the Seller which are not part of the contracts referenced in
Schedule 1.1 or Schedule 1.3 hereof;
(e) any net operating loss, or tax attribute or benefit
generated by the Seller for any period prior to the Closing date;
(f) any of the rights of the Seller under this
Agreement;
(g) cash;
(h) accounts receivable of the Seller, including
intercompany accounts receivable;
(i) The capital stock of Agridyne and Crop.
1.3. Assumed Liabilities and Executory Contracts. On and
subject to the terms and conditions of this Agreement, the Buyer
shall assume and discharge or perform when due in accordance with
the terms thereof the Liabilities related to the Business
identified on Schedule 1.3 (collectively, the "Assumed
Liabilities"), including without limitation the executory
contracts specifically identified as such on Schedule 1.3 (the
"Assigned Executory Contracts) with respect to which the Buyer
shall be responsible for any cure payments and providing adequate
assurance of future performance thereunder.
1.4. Excluded Liabilities. Notwithstanding anything to the
contrary contained in this Agreement, except for the Assumed
Liabilities, the Buyer shall not assume or be liable for any of
the Liabilities of the Seller (the "Excluded Liabilities").
Notwithstanding anything to the contrary in this Agreement, Buyer
acknowledges and agrees that the Seller has no obligation to
Buyer to pay, satisfy, perform or discharge any of the Excluded
Liabilities.
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1.5 Sublease of Portion of Plant. Crop and biosys, on the
one hand, and the Buyer, on the other hand, agree to enter into a
sublease containing mutually acceptable terms and conditions
whereby the buyer will lease approximately 20,000 square feet of
office, laboratory and warehouse space in Crop's and biosys'
facility located at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
ARTICLE II
CONSIDERATION; CLOSING
2.1. Consideration. The consideration to be paid by the
Buyer for the Acquired Assets shall consist of (a) $11,000,000
cash and (b) the assumption of the Assumed Liabilities (clauses
(a) and (b) are hereinafter collectively referred to as, the
"Purchase Price"). The Buyer has delivered to McGuire, Woods,
Battle & ▇▇▇▇▇▇, L.L.P. (the "Escrow Agent") an ▇▇▇▇▇▇▇ money
deposit in the amount of $100,000.00 (the "Initial Deposit").
The Buyer agrees that promptly upon the entry of the Sale Order,
the Buyer will deliver to the Escrow Agent, by certified check or
wire transfer, an amount (the "Additional Deposit") equal to the
difference between the Initial Downpayment and 10% of the
Purchase Price. The Initial Deposit and the Additional Deposit
are collectively referred to as the Deposit. The Deposit,
together with any and all interest accrued and paid thereon,
shall be applied as a credit to the Purchase Price at Closing.
2.2. The Closing. Subject to the terms and conditions of
this Agreement, the closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇, LLC, Suite 250, 10420 Little Patuxent
Pkwy., Columbia, Maryland, or at such other place as agreed to by
the Parties, on the later to occur of, unless otherwise agreed to
by the Parties: (i) the date on which the conditions to Closing
set forth in Article V shall have been satisfied or waived or
(ii) three days after the Sale Order and the Assumption and
Assignment Order have been issued provided that they have not
been stayed (such date being the "Closing Date").
2.3. Deliveries at the Closing.
(a) At the Closing, the Seller shall deliver to the
Buyer:
(i) the Acquired Assets in accordance with the terms
of Sections 1.1 and 6.7;
(ii) a counterpart to a ▇▇▇▇ of sale and assignment and
assumption agreement (the "▇▇▇▇ of Sale"), substantially in the
form attached hereto as Exhibit A;
(iii) Intellectual Property transfer documents (the "IP
Assignments") substantially in the form attached hereto as
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Exhibit B and such forms of Intellectual Property Transfer
documents as may be required by non U.S.governmental
jurisdictions, provided, that the Buyer shall be required to pay
any filing fees in connection with the filing of such IP
Assignments to the extent necessary;
(iv) such other instruments of sale, transfer, conveyance
and assignment as the Buyer reasonably may request to effectuate
the transfer of the Acquired Assets to the Buyer;
(v) a certified copy of the Sale Order, the Assumption and
Assignment Order and the Court Docket dated as of the Closing
Date; and
(vi) such other assignment and transfer documents
as may be required by the U.S. Environmental Protection Agency,
state governments or other non
U.S. governmental jurisdictions as may be necessary to assign and
transfer all pesticide registrations.
(b) At the Closing, the Buyer shall deliver to the
Seller:
(i) a counterpart to the ▇▇▇▇ of Sale;
(ii) a counterpart to the IP Assignments;
(iii) the Purchase Price; and
(iv) copies of the consent of the board of directors of the Buyer
authorizing this Agreement and the transactions contemplated
hereby.
(v) a copy of the instrument of transfer by which the
Buyer will convey, transfer and assign to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland
Company, the spray dryer and three centrifuges being purchased by
Buyer from biosys located in the fermentation facility at ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Midland Company's Decatur, Illinois plant, and a release
duly executed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland Company of all of its
pre-petition and post-petition claims against the Seller,
including without limitation claims arising from the rejection by
biosys of its contracts between biosys and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland
Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Buyer as follows:
(a) Organization, Good Standing, Qualification and
Power. The Seller is a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation and
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has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as presently
conducted. As used in this Agreement, (i) the term "Charter"
means the Certificate of Incorporation, Organization or
Association or other document which governs such entity's
internal affairs, in each case as amended, supplemented, or
restated and (ii) the term "Governmental Authority" means any
federal, state, local or foreign government, authority,
instrumentality, department commission, board, bureau, agency or
court.
(b) Authority, Enforceability, Etc. Upon Bankruptcy
Court approval, the Seller shall have the full and absolute power
to enter into this Agreement and the documents contemplated
hereby, to perform its obligations under this Agreement and each
such document, and to consummate the transactions contemplated
hereby and thereby. Upon Bankruptcy Court approval, the
execution, delivery and performance by the Seller of this
Agreement and all documents contemplated hereby and the
consummation of the transactions contemplated hereby and thereby
shall have been duly and validly authorized by all necessary
action (corporate or otherwise) on the part of the Seller. Upon
Bankruptcy Court approval, each of this Agreement and the
documents contemplated hereby shall have been, or upon its
execution and delivery will be, duly and validly executed and
delivered by the Seller and shall be, or upon its execution and
delivery shall be, a valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms.
3.2. Representations and Warranties of the Buyer. The
Buyer hereby represents and warrants to the Seller as follows:
(a) Authority, Enforceability, No Violation. Etc. The
Buyer has all requisite corporate power and authority to execute
and deliver this Agreement and the documents contemplated hereby
to which it is a party, to perform its obligations under this
Agreement and each such document, and to consummate the
transactions contemplated hereby and thereby. The execution,
delivery and performance by the Buyer of each document
contemplated hereby to which it is a party, and the consummation
of the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary corporate action on
the part of the Buyer. This Agreement and each document
contemplated hereby to which the Buyer is a party is, or upon its
execution and delivery will be, a valid and binding obligation of
the Buyer, enforceable against it in accordance with the terms
thereof. Neither the execution, delivery or performance by the
Buyer of this Agreement or any document contemplated hereby to
which it is a party, nor the consummation by the Buyer of the
transactions contemplated hereby and thereby, nor compliance by
the Buyer with any of the provisions hereof and thereof will (i)
conflict with or result in a breach of any provision of the
Buyer's Charter or By-Laws, (ii) conflict with any material law,
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statute, rule or regulation or judgment, order, writ, injunction
or decree of any Governmental Authority, in each case applicable
to the Buyer or its assets, or (iii)conflict with or result in a
default or breach of any provision of any material contract or
agreement to which the Buyer is a party or by which its assets
may be bound. No material filing with, and no material permit,
authorization, consent or approval of, any Person is necessary
for the consummation by the Buyer of the transactions
contemplated by this Agreement and the documents contemplated
hereby.
(b) Brokers and Finders. The Buyer has not employed
any broker or finder in connection with the transactions
contemplated by this Agreement.
(c) Absence of Litigation. No claim, action, suit,
arbitration, inquiry, proceeding or investigation by or before
any Governmental Authority is pending against the Buyer which
seeks to delay or prevent the consummation of the transactions
contemplated hereby or which may adversely affect or restrict the
Buyer's ability to consummate the transactions contemplated
hereby.
(d) Financing. The Buyer has the cash and other
consideration constituting the Purchase Price immediately
available for purchase of the Acquired Assets as contemplated
hereby.
ARTICLE IV
CONDITIONS TO CLOSING
4.1. Conditions to Obligations of the Buyer and the Seller.
The obligation of the Buyer and the Seller to perform this
Agreement is subject to the satisfaction of the following
conditions, unless waived by the other party hereto:
(a) Legal Action. No temporary restraining order,
preliminary injunction or permanent injunction or other order
preventing the consummation of the transactions contemplated
hereby shall have been issued by any court of law and remain in
effect. Each party agrees to use its best efforts to have any
injunction lifted.
(b) Legislation. No statute, rule or regulation shall
have been enacted which prohibits, restricts or delays the
consummation of the transactions contemplated hereby or any of
the conditions to the consummation of such transactions.
(c) HSR Act. Any waiting period (and any extension
thereof) under the HSR Act applicable to the purchase of the
Acquired Assets contemplated hereby shall have expired or shall
have been terminated.
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(d) Sale Order; Assumption and Assignment Order. The
Bankruptcy Court shall have issued the Sale Order and the
Assumption and Assignment Order, neither of which shall have been
reversed, modified or stayed as of the tenth day following the
effective date of the Sale Order.
(e) All intercompany accounts between any one of the
Sellers on the one hand, and AgriSense BCS, Ltd., on the other
hand shall be released.
(f) Transfer to ADM. The Buyer shall have made
arrangements satisfactory to the Seller to convey, transfer and
assign, at Closing, to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland Company, by
instrument of transfer mutually satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Midland Company, Buyer, and Seller, the spray dryer and three
centrifuges being purchased by Buyer from Seller located in the
fermentation facility at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland Company's
Decatur, Illinois plant, in full satisfaction and discharge of
all of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland Company's pre-petition and
post-petition claims against the Seller, including without
limitation claims arising from the rejection by biosys of its
contracts between biosys and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland Company.
4.2. Conditions to Obligation of the Buyer. The obligation
of the Buyer to perform this Agreement is subject to the
satisfaction of the following condition, unless waived by the
Buyer:
(a) Officer Certificates. The Buyer shall have
received (i) a certificate, dated as of the Closing Date, signed
by the Secretary of Seller and certifying as to the Charter,
By-laws, incumbency of officers executing this Agreement and the
other documents contemplated hereby to which the Seller is a
party and resolutions of the Board of Directors of the Seller
authorizing this Agreement and the other documents contemplated
hereby to which the Seller is a party and (ii) a certificate of
an officer of the Seller certifying as to the fulfillment of the
conditions set forth in this Section 4.2.
(b) Between the date of this Agreement and the Closing
Date, no person shall have challenged in writing the title or
validity of any Intellectual Property or threatened an
infringement proceeding which may have a material adverse effect
on the value of any Intellectual Property.
(1) All financial guarantees given by AgriSense
BCS, Ltd. of any of the debt or bonds of biosys, Crop or Agridyne
are terminated and released , and all security interests in any
of the assets of AgriSense BCS, Ltd. securing any such guarantees
shall be terminated and released.
(2) 100% of the Common Stock and 100% of the
Preferred Stock, if any, of AgriSense BCS, Ltd. shall be assigned
and transferred to the Buyer and all security interests and liens
in said Common Stock and Preferred Stock shall be terminated and
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released.
(c) If the cost to cure any Assigned Executory
Contract exceeds $10,000, Buyer shall have the right to elect to
not assume any such Assigned Executory Contract.
4.3. Conditions to Obligation of the Seller. The
obligation of the Seller to perform this Agreement is subject to
the satisfaction of the following conditions, unless waived by
the Seller:
(a) Authorization. All corporate or other action
necessary to authorize the execution, delivery and performance of
this Agreement and the other documents contemplated hereby by the
Buyer and the consummation of the transactions contemplated
hereby and thereby shall have been duly and validly taken by the
Buyer and the Buyer shall have full power and authority to enter
into and consummate the transactions contemplated by this
Agreement and the other documents contemplated hereby.
(b) Performance of Obligations of the Buyer. The
Buyer shall have performed and complied in all material respects
with all agreements and obligations and satisfied all conditions
to be performed, complied with and satisfied by it under this
Agreement and the other documents contemplated hereby prior to or
at the Closing.
(c) Representations and Warranties. The
representations and warranties of the Buyer set forth herein and
in any other document contemplated hereby shall be correct in all
material respects as of the Closing Date as though made on and as
of the Closing Date.
(d) Officer Certificates. The Seller shall have
received (i) a certificate dated as of the Closing Date, signed
by the Secretary of the Buyer and certifying as to the Charter,
By-laws, incumbency of officers executing this Agreement and the
other documents contemplated hereby to which the Buyer is a party
and the resolutions of the Board of Directors of the Buyer
authorizing this Agreement and the other documents contemplated
hereby to which the Buyer is a party and (ii) a certificate of an
officer of the Buyer certifying as to the fulfillment of the
conditions set forth in this Section 4.3.
(e) Cure and Adequate Assurances of Future
Performance. The Buyer shall have paid all amounts necessary to
cure the defaults, if any, existing under the Assigned Executory
Contracts, and the Buyer shall have provided adequate assurances
of future performance under the Assigned Executory Contracts.
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ARTICLE V
TERMINATION
5.1. Right of Termination. This Agreement may be
terminated at any time prior to the Closing by:
(a) the mutual written consent of the Buyer and the
Seller;
(b) either the Buyer or the Seller if the Bankruptcy
Court shall have determined not to enter the Sale Order or the
Assumption and Assignment Order; or
(c) either the Buyer or the Seller in writing, without
liability to the terminating party on account of such termination
(except as provided in Section 5.2 and 5.3 hereof) if the Closing
shall not have occurred on or before January 15, 1997 or by such
later date (if any) as to which the Parties shall have agreed in
writing.
5.2. Effect of Termination. Termination of this Agreement
pursuant to this Article V shall terminate all obligations of the
parties hereunder, except for the obligations under this Section
5.2 and Article VIII. Notwithstanding the foregoing, nothing in
this Section 5.2 shall relieve or limit the liability or
obligations hereunder of any party (the "Defaulting Party") to
the other party on account of a willful and intentional breach of
a covenant or agreement contained herein, or any fraudulent
representation or warranty contained herein by the Defaulting
Party. In the case of such a willful and intentional breach or
fraud, in addition to any damages for which the Defaulting Party
may be liable, the Defaulting Party shall reimburse the other
Party for any expenses incurred by such Party in order to enforce
its rights under this Agreement (including reasonable attorneys'
fees and expenses).
5.3. Deposit. Any provision in this Agreement to the
contrary notwithstanding, (a) in the event that the Buyer fails
to deliver the Additional Deposit to the Escrow Agent pursuant to
Section 2.1 hereof, the Seller shall be entitled to delivery of
and to retain the Initial Deposit, together with any and all
interest accrued and paid thereon, as damages to compensate the
Seller for the Buyer's failure to deliver the Additional Deposit,
in addition to any and all other rights and remedies of the
Seller under Section 5.2 and Article VIII hereof; (b) in the
event that the Closing does not occur because of a failure of any
of the conditions to closing set forth in Sections 4.1, 4.2 or
4.3 hereof, the Buyer shall be entitled to the prompt return of
the Deposit, together with any and all interest accrued and paid
thereon, and neither the Seller nor the Buyer shall have any
liability or obligation to the other except as and to the extent
set forth in Section 5.2 and Article VIII hereof; and (c) in the
event that the Buyer fails to consummate the Closing
notwithstanding that all of the conditions set forth in Sections
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4.1 and 4.2 hereof shall have been satisfied, the Seller shall be
entitled to delivery of and to retain the Deposit, together with
any and all interest accrued and paid thereon, as damages to
compensate the Seller for the Buyer's failure to consummate the
Closing, in addition to any and all other rights and remedies of
the Seller under Section 5.2 and Article VIII hereof.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1. Survival. The representations and warranties of the
Seller set forth in this Agreement or in any certificate or other
writing delivered in connection with this Agreement shall
terminate at the Closing.
6.2. Transaction Expenses. Except as otherwise provided
herein, each party hereto shall pay all of its own expenses
incurred in connection with the transactions contemplated hereby
(whether consummated or not).
6.3. Employees. The Buyer shall be entitled, but shall
not be obligated, to offer employment to the employees of the
Seller actively employed on the Closing Date by the Seller in
connection with the Business. The Buyer shall be solely
responsible for obtaining and/or renewing all required immigrant
visas, nonimmigrant visas or any other work authorization from
the Immigration & Naturalization Service for foreign employees,
and Seller shall not be liable to Buyer for any violations under
the Immigration and Nationality Act, including without limitation
employer sanctions for noncompliance with the Employer
Eligibility Verification Requirements provided in Section 274A of
the Immigration & Nationality Act pertaining to Buyer's
employment of Seller's employees.
6.4. Further Assurances. After the Closing Date, the Buyer
shall, at the Seller's expense, provide the Seller with access
(within 5 business days) during normal business hours to any
documents or records reasonably requested by the Seller which
relate to any claims asserted in the Bankruptcy Case. If the
books or records relating to any claims are moved from the
Seller's corporate headquarters, the Buyer shall provide Seller
with copies of any documents or records reasonably requested by
the Seller which relate to any such claims, within 5 business
days of written request therefor. Following the Closing Date, the
Buyer shall provide the Seller with reasonable access to all
former employees of the Seller necessary or appropriate in
connection with Seller's preparation of claims objections and
prosecution of adversary proceedings in the Bankruptcy Case.
6.5. Efforts to Consummate. Subject to the terms and
conditions herein provided, the Parties shall use their
reasonable best efforts to take or cause to be taken all actions
and do or cause to be done all things reasonably necessary,
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proper or advisable to consummate and make effective, as soon as
reasonably practicable, the transactions contemplated hereby,
including, but not limited to, (i) requesting the early
termination of the waiting period under the HSR Act, (ii) taking
the measures reasonably necessary to achieve such an early
termination and (iii) obtaining all other authorizations, orders
and approvals of any third party, whether private or
governmental, required in connection with the consummation of the
transactions contemplated hereby. Seller and Buyer shall use
reasonable best efforts to commence the waiting period under the
HSR Act upon Seller's selection of Buyer as the most likely
purchaser of the assets Buyer bid on, even if the Sale Order has
not yet been entered.
6.6. Broker's Fees. Each of the Parties shall be
responsible for, and shall hold each of the other Parties
harmless against, any fees or commissions for which such Party is
liable to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
6.7. As Is. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR IN
ANY DOCUMENT, INSTRUMENT OR AGREEMENT EXECUTED PURSUANT HERETO,
THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE ACQUIRED ASSETS, INCLUDING, WITHOUT
LIMITATION, ANY REPRESENTATIONS OR WARRANTIES RELATING TO THE
CONDITION OR SUFFICIENCY OF THE ACQUIRED ASSETS OR CONCERNING THE
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
ACQUIRED ASSETS OR ANY PORTION THEREOF; INCOME TO BE DERIVED FROM
OR EXPENSES TO BE INCURRED IN CONNECTION WITH THE ACQUIRED
ASSETS; THE PHYSICAL CONDITION OF ANY TANGIBLE PROPERTY
COMPRISING ANY PORTION OF THE ACQUIRED ASSETS; THE TITLE TO OR
OWNERSHIP OF THE ACQUIRED ASSETS OR ANY PORTION THEREOF; THE
VALUE OF THE ACQUIRED ASSETS; THE ACCURACY, COMPLETENESS,
TRANSFERABILITY OR ASSIGNABILITY OF ANY DOCUMENTS OR OTHER
MATERIALS RELATING TO THE ACQUIRED ASSETS (OR ANY PORTION
THEREOF); THE EXISTENCE OF OR RIGHTS WITH RESPECT TO ANY
COPYRIGHTS, TRADEMARKS, TRADE NAMES OR OTHER INTELLECTUAL
PROPERTY OR INTANGIBLE PROPERTY RIGHTS RELATING TO OR COMPRISING
THE ACQUIRED ASSETS (OR ANY PORTION THEREOF) OR THE
TRANSFERABILITY OF ANY SUCH RIGHTS; THE TRANSFERABILITY OF ANY
LETTER OF CREDIT OR INSTRUMENT COMPRISING A PORTION OF THE
ACQUIRED ASSETS; THE COLLECTIBILITY OR ENFORCEABILITY OF ANY
ACCOUNTS RECEIVABLE COMPRISING ANY PORTION OF THE ACQUIRED
ASSETS. Accordingly, without limiting the foregoing and
notwithstanding anything to the contrary in this Agreement or in
any instrument, agreement or document executed pursuant to or in
connection with this Agreement, the Buyer accepts the Acquired
Assets from the Seller at the Closing "AS IS," "WHERE IS" and
"WITH ALL FAULTS." The Buyer further acknowledges and agrees
that notwithstanding anything to the contrary in this Agreement
or in any agreement, document or instrument executed pursuant to
or in connection with this Agreement, the Seller may fully
satisfy any obligation under this Agreement or under any such
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instrument, document or agreement, to deliver the Acquired Assets
(or any portion thereof) to Buyer by making such Acquired Assets
available to Buyer at their location(s) as of the Closing.
6.8. Schedules. Each Schedule attached hereto is made a
part of this Agreement. Anything contained herein to the
contrary notwithstanding, any information disclosed on any
Schedule attached hereto and made a part hereof with respect to
any particular section of this Agreement shall be deemed to be
disclosed on all Schedules with respect to all other sections of
this Agreement to which such information is considered
responsive.
6.9 Offer to Purchase. This Agreement shall constitute an
offer by the Buyer to purchase the Assigned Assets and the
Assigned Executory Contracts, irrevocable until after January 10,
1997.
6.10 Non-Competition. Seller shall not compete with Buyer
as a principal, owner, partner, joint venturer, stockholder or
consultant with respect to the business being sold for a period
of 5 years from the date hereof.
6.11 Disassembly of Equipment. In the event that the Buyer,
on the one hand, and biosys and Crop, on the other hand, do not
enter into the sublease contemplated by Section 1.5 hereof,
Seller shall, at the expense of both Buyer and Seller (such
expense to be shared one-half by Buyer and one-half by Seller),
disassemble all equipment purchased by Buyer hereunder located at
the Columbia, Maryland premises and put such equipment in a
shipment ready condition on Seller's loading dock for pick-up by
Buyer. Buyer shall have a reasonable time to remove said
equipment from such premises.
ARTICLE VII
DEFINITIONS
7.1. The following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any of
(a) a director, executive officer or stockholder of such Person,
(b) a spouse, parent, sibling or descendant of such Person (or a
spouse, parent, sibling or descendant of any director or
executive officer of such Person) and (c) any other Person that,
directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
another Person. The term "control" includes, without limitation,
the possession, directly or indirectly, of the power to direct
the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Assigned Executory Contracts" has the meaning given
such term in Section 1.3 hereof.
PAGE
"Assumption and Assignment Order" means an order (which
may be part of the Sale Order) issued by the Bankruptcy Court
approving the assumption by the Seller and the assignment by the
Seller to the Buyer of the Assigned Executory Contracts in the
form attached hereto.
"Bankruptcy Case" means, with respect to biosys, the
case filed under Chapter 11 of the Bankruptcy Code by biosys, and
styled In re biosys, inc., Case No.96-5-9463-SD, currently
pending in the Bankruptcy Court, and with respect to Crop, the
case filed under Chapter 11 of the Bankruptcy Code by Crop, and
styled In re Crop Genetics International Corporation, Case No.
96-5-9464-SD, currently pending in the Bankruptcy Court.
"Bankruptcy Code" means Title 11 of the United States
Code, as now in effect or hereafter amended or modified.
"Bankruptcy Court" means the United States Bankruptcy
Court for the District of Maryland.
"Bankruptcy Recoveries" means property or interests in
property recovered or recoverable by the bankruptcy estate of the
Seller, as the case may be, pursuant to Sections 542, 543, 544,
545, 547, 548, 549, 550, 551 or 553 of the Bankruptcy Code.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated
thereunder.
"Court Docket" means the docket of the Bankruptcy Court
relating to the Bankruptcy Case.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, and the rules promulgated
thereunder.
"Intellectual Property" means (a) inventions, all
improvements thereto and all patents, patent applications, and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations
thereof, (b) registered and unregistered trademarks, service
marks, trade dress, logos, trade names, and corporate names,
including all goodwill associated therewith, and applications,
registrations, and renewals in connection therewith, (c)
copyrightable works, copyrights and applications, registrations
and renewals in connection therewith, (d) trade secrets,
formulae, customer lists, supplier lists, pricing and cost
information, business and marketing plans and other confidential
business information, (e) computer programs and related software,
(f) other proprietary rights and (g) copies and tangible
embodiments thereof.
"Liability" means any liability or obligation, whether
known or unknown, asserted or unasserted, absolute or contingent,
PAGE
accrued or unaccrued, liquidated or unliquidated and whether due
or to become due, regardless of when asserted.
"Party" means either the Seller or the Buyer, as the
context requires; and "Parties" means both the Seller and the
Buyer.
"Person" shall be construed broadly and shall include
an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity
(or any department, agency, or political subdivision thereof).
"Purchase Price" has the meaning set forth in Section
2.1 hereof.
"Sale Order" means an order issued by the Bankruptcy
Court approving this Agreement and authorizing the Seller to
consummate all of the transactions contemplated hereby in the
form attached hereto.
ARTICLE VIII
MISCELLANEOUS
8.1. No Third Party Beneficiaries. This Agreement shall
not confer any rights or remedies upon any Person other than the
Parties and their respective successors and permitted assigns,
personal representatives, heirs or estate, as the case may be.
8.2. Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement
between the Parties and supersedes any prior understandings,
agreements or representations by or between the Parties, written
or oral, that may have related in any way to the subject matter
hereof.
8.3. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns. Prior to the
Closing, no Party may assign either this Agreement or any of its
rights hereunder without the prior written approval of the other
Party. No Party may delegate any of its obligations hereunder at
any time.
8.4. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.
8.5. Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Agreement.
8.6. Notices. All notices, requests, demands, claims, and
PAGE
other communications hereunder shall be in writing. Any notice,
request, demand, claim or other communication hereunder shall be
deemed duly given when delivered personally to the recipient,
telecopied to the intended recipient at the telecopy number set
forth therefor below (with hard copy to follow), or sent to the
recipient by reputable express courier service (charges prepaid)
and addressed to the intended recipient as set forth below:
If to the Seller:
biosys, inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and
Crop Genetics International Corp.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
McGuire, Woods, Battle & ▇▇▇▇▇▇, L.L.P.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇, LLC
The ▇▇▇▇▇▇ Building, Suite 250
10420 Little ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
If to the Buyer:
Thermo Trilogy Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇-Lih Su, President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
PAGE
with a copy to:
Thermo Ecotek Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇, President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Any Party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address
set forth above using any other means, but no such notice,
request, demand, claim or other communication shall be deemed to
have been duly given unless and until it actually is received by
the intended recipient. Any Party may change the address to
which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other
Party notice in the manner herein set forth.
8.7. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED STATES
OF AMERICA AND THE DOMESTIC LAWS OF THE STATE OF MARYLAND,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING
PROVISION OR RULE (WHETHER OF THE STATE OF MARYLAND, OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER
THAN THE UNITED STATES OF AMERICA AND THE STATE OF MARYLAND TO BE
APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE
STATE OF MARYLAND WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S
CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF
SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
8.8. Jurisdiction and Venue. SUBJECT TO THE TERMS OF THIS
AGREEMENT, THE SELLER AND THE BUYER HEREBY AGREE THAT ALL ACTIONS
ARISING UNDER OR IN RESPECT OF THIS AGREEMENT OR ANY OTHER
DOCUMENT EXECUTED CONCURRENTLY HEREWITH INVOLVING THE SELLER AND
THE BUYER PRIOR TO THE ENTRY OF A FINAL DECREE OF THE BANKRUPTCY
COURT CLOSING THE BANKRUPTCY CASE SHALL BE LITIGATED IN THE
UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MARYLAND. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH OF THE SELLER AND
THE BUYER IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF
SUCH COURT FOR ITSELF, HIMSELF, OR HERSELF AND IN RESPECT OF ITS,
HIS OR HER PROPERTY WITH RESPECT TO SUCH ACTION. EACH OF THE
SELLER AND THE BUYER AGREES THAT VENUE WOULD BE PROPER IN SUCH
COURT, AND HEREBY WAIVES ANY OBJECTION THAT SUCH COURT IS AN
IMPROPEROR INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH
ACTION. THE PARTIES FURTHER AGREE THAT THE MAILING BY CERTIFIED
OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS
REQUIRED BY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE
OF PROCESS AGAINST THEM, WITHOUT THE NECESSITY FOR SERVICE BY ANY
OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT. NOTHING
CONTAINED HEREIN SHALL APPLY TO ACTIONS ARISING UNDER OR IN
RESPECT OF THIS AGREEMENT INVOLVING OR RELATING TO THE BUYER.
PAGE
8.9. Amendments and Waivers. No amendment of any provision
of this Agreement shall be valid unless the same shall be in
writing and signed by all of the Parties. No waiver by any Party
of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any way
any rights arising by virtue of any prior or subsequent such
occurrence.
8.10. Incorporation of Exhibits and Schedules. The
Exhibits and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
8.11. Construction. Where specific language is used to
clarify by example a general statement contained herein, such
specific language shall not be deemed to modify, limit or
restrict in any manner the construction of the general statement
to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the Parties to express
their mutual intent, and no rule of strict construction shall be
applied against any Party.
8.12. Remedies. The Parties shall each have and retain all
other rights and remedies existing in their favor at law or
equity, including, without limitation, any actions for specific
performance and/or injunctive or other equitable relief
(including, without limitation, the remedy of rescission) to
enforce or prevent any violations of the provisions of this
Agreement.
8.13. Severability. It is the desire and intent of the
Parties hereto that the provisions of this Agreement be enforced
to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent
jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of
this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as
not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly
drawn, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
PAGE
IN WITNESS WHEREOF, the Parties have executed this
Asset Purchase Agreement as of the date first above-written.
ATTEST: THERMO TRILOGY CORP.,
a Delaware corporation
By:
(SEAL)
Name:
Title:
ATTEST: BIOSYS, INC.,
a Delaware corporation,
Debtor-in-Possession
By:
(SEAL)
Name:
Title:
ATTEST: CROP GENETICS INTERNATIONAL CORPORATION,
a Delaware corporation,
Debtor-in-Possession
By:
(SEAL)
Name:
Title:
ATTEST: AGRIDYNE TECHNOLOGIES, INC.,
a Delaware corporation,
Debtor-in-Possession
By:
(SEAL)
Name:
Title:
PAGE
Schedule 1.1
(Offer for all the Assets)
Acquired Assets
Acquired Assets shall include 100% of the issued and outstanding
common and preferred stock of Agrisense BCS, Ltd. and all
tangible and intangible personal property and equipment of Seller
where ever located (including all property in Decatur, IL)
including all inventories, machinery and equipment, catalogs,
brochures, product literature, pesticide labels, Assumed
Contracts (as listed in Schedule 1.3), Intellectual Property
rights, trademarks, copyrights, technical information,
inventions, discoveries, know how, trade secrets, proprietary
data, technology, computer programs, software, drawings, plans,
specification, processes, patterns, designs, blueprints, records,
data, product development records, pesticide registration studies
and reports, all customer supplier lists, business data, pricing
and cost information, business and marketing plans, including,
but not limited to all the specific assets of Seller listed
below:
1. Tangible Personal Property
All tangible personal property of Seller as listed
in the schedules filed with the Bankruptcy Court in the
Bankruptcy Case.
2. Intellectual Property
A. All Patents and Patent Applications
as attached hereto
B. All Trademarks and applications as attached
hereto
C. Copyrights
3. All U.S., State and Foreign Pesticide Registrations
attached hereto
PAGE
Schedule 1.3
(Offer for all the Assets)
Assumed Liabilities
Buyer shall only assume the liabilities under the following
listed Assigned Contracts.
(SEE LIST OF ASSUMED/ASSIGNED CONTRACTS INCLUDED WITHIN THE OFFER
LETTER)
PAGE
EXHIBIT A
[Form of ▇▇▇▇ of Sale To Be Provided By Seller]
PAGE
EXHIBIT B
[Form of IP Assignments To Be Provided By Seller]