PURCHASE OF ASSETS AGREEMENT
as of
December 11, 2003
Between
DENTSPLY International Inc.
Ceramco Inc.
Dentsply Research & Development Corp.
PDEX Acquisition Corp.
DENTSPLY France S.A.S.
DENTSPLY DeTrey GmbH
and
DENTSPLY Italia S.r.l.
as Sellers
and
DAS Equipment Company
as Buyer
INDEX
Page
Recitals ............................................1
Article 1 Definitions...............................1
1.1 Affiliate...............................2
1.2 Ancillary Agreements....................2
1.3 Assets..................................2
1.4 Base Financial Statements...............2
1.5 Business................................2
1.6 Closing.................................3
1.7 Closing Date............................3
1.8 Confidential Information................3
1.9 Contracts...............................3
1.10 Damages.................................3
1.11 Encumbrance.............................4
1.12 EU Business.............................4
1.13 Excluded Obligations....................4
1.14 GAAP....................................4
1.15 Gendex Management Employees.............4
1.16 Gendex Operating Units..................4
1.17 Governmental Authority..................4
1.18 Hart-Scott-Rodino.......................4
1.19 Income from Operations..................4
1.20 Initial Payment.........................5
1.21 Intercompany Locations..................5
1.22 Inventories.............................5
1.23 Laws....................................5
1.24 Liability...............................5
1.25 Material Adverse Effect.................5
1.26 Net Sales...............................5
1.27 Person..................................5
1.28 Product Liability Claim.................5
1.29 Products................................5
1.30 Purchase Price..........................6
1.31 Schedules...............................6
1.32 Third Party Receivables.................6
1.33 Third Party Payables....................6
1.34 Transactions Contemplated Hereby........6
1.35 Transferred Employee....................6
(i)
1.36 US and USA..............................6
1.37 US Business.............................6
1.38 US Facility.............................6
1.39 VAT.....................................6
Article 2 Purchase and Sale of Assets...............6
2.1 Transfer................................6
2.2 Payment of Purchase Price...............7
2.3 Adjustments to Purchase Price...........7
2.4 Assumption of Obligations;
Retention of Excluded Obligations..... 8
2.5 Proration...............................9
2.6 Instrument of Transfer and Assumption;
Deliverables........................... 9
2.7 Consents...............................11
2.8 Further Assurances.....................12
2.9 Sales and Transfer Taxes; Fees.........13
2.10 Relocation of Assets...................13
2.11 Transferred Employees..................14
Article 3 Conditions Precedent.................. 14
3.1 Conditions to Buyer Closing............14
3.2 Conditions to Sellers Closing..........15
Article 4 Representations and Warranties
of Seller........................... 15
4.1 Sellers Organization and Good Standing.15
4.2 Authority; Execution and Delivery......16
4.3 Consents; No Conflicts.................16
4.4 Legal Proceedings......................16
4.5 Financial Information..................17
4.6 Permits and Registrations..............17
4.7 Absence of Certain Changes or Events...17
4.8 Contracts..............................18
4.9 Assets.................................19
4.10 Inventory..............................19
4.11 Intellectual Property..................20
4.12 Employee Matters.......................22
4.13 Litigation.............................25
4.14 Compliance with Laws...................25
4.15 Product Warranties.....................25
4.16 Receivables............................26
4.17 Brokers................................26
4.18 Complete Copies of Contracts...........26
(ii)
4.19 Environmental Matters..................26
4.20 Real Property..........................27
4.21 Significant Customers and Suppliers....28
4.22 Taxes..................................28
4.23 Bank Accounts; Powers of Attorney......29
4.24 Backlog................................29
4.25 Unlawful Payments......................29
4.26 Absence of Claims; Business
Relationships with Affiliates....... 29
4.27 Books and Records......................30
4.28 Trade Accounts Payable.................30
Article 5 ..Representations and Warranties of Buyer30
5.1 Buyer's Organization, Power, Execution.30
5.2 Non-Violation..........................30
5.3 Legal Proceedings......................31
5.4 Brokers................................31
5.5 Cash Resources.........................31
Article 6 Covenants of Seller................. 31
6.1 Conduct of the Business................31
6.2 Certain Changes........................31
6.3 Access to Information..................32
6.4 Exclusivity............................32
6.5 VAT Refund.............................32
Article 7 Other Agreements.................... 33
7.1 Books and Records......................33
7.2 Bulk Sales Laws........................33
7.3 Allocation of Purchase Price
and Tax Matters................... 33
7.4 No Implied Representations.............34
7.5 Currency Exchange......................34
7.6 Intercompany Effects...................34
7.7 Cause Conditions to be Satisfied.......35
7.8 Notification of Certain Matters........35
7.9 Transitional Services Agreement........35
Article 8 Termination......................... 35
8.1 General Termination....................35
8.2 Termination by Buyer...................36
8.3 Termination by Seller..................36
8.4 Effect of Termination..................36
(iii)
Article 9 Indemnities......................... 36
9.1 Indemnity Claims.......................36
9.2 Indemnification by Sellers.............38
9.3 Indemnification by Buyer...............39
Article 10 Survival; Claims.......................39
10.1 Survival...............................39
10.2 Limitation of Indemnification
Obligations............................40
10.3 Determination of Damages...............41
10.4 Exclusivity of Remedies................42
Article 11 Confidentiality........................42
11.1 Confidentiality........................42
11.2 Reasonable Restraint...................42
11.3 Severability; Reformation..............43
11.4 Materiality............................43
Article 12 Miscellaneous............................43
12.1 Cooperation............................43
12.2 Payment of Expenses....................43
12.3 Modifications; Waivers.................43
12.4 Successor/Assignability................44
12.5 Dispute Resolution.....................44
12.6 Specific Performance; Remedies.........44
12.7 Governing Law..........................44
12.8 Arbitration............................45
12.9 Publicity..............................45
12.10 Notices................................46
12.11 Captions; Mutual Product...............46
12.12 Further Representations................46
12.13 Counterparts...........................47
12.14 No Third Party Beneficiaries...........47
12.15 Right to Set Off.......................47
12.16 Entire Agreement.......................47
12.17 Usage..................................47
12.18 Guarantees.............................48
(iv)
SCHEDULES
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Description Schedule
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Assets 1.3 A
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Excluded Assets 1.3 B
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Products 1.28
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Assumed Obligations 2.4
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Consents 2.6(a)(x)
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Exceptions 4
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Financial Information 4.5
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Material Contracts 4.8(b)
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Additional Contracts 4.8(c)
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Fixed Assets 4.9
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Patents 4.11 A
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Trademarks 4.11 B
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Other Intellectual Property 4.11 C
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Employment Terms 4.12
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Litigation 4.13
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Warranty 4.15
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Environmental Matters 4.19
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Real Property 4.20
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Significant Customers and Suppliers 4.21(a)
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Taxes 4.22
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Bank Accounts, Power of Attorney 4.23
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Claims; Business Relationships 4.26
with Affiliates
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Disclosures 10.3
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Description Exhibit
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Sublease 2.6A
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Manufacturing Agreement 2.6B
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Representative Agreement 2.6C
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Transitional Services Agreement 7.9
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(v)
PURCHASE OF ASSETS AGREEMENT
This Purchase of Assets Agreement ("Agreement"), dated as of
December __, 2003, is made and entered into by and between DAS
Equipment Company, a corporation organized and existing under the
laws of Delaware, USA, with a principal place of business at 2099
Pennsylvania Avenue, N.W., Washington, D.C. 20006-1813 (herein
referred to as "Buyer"), AND DENTSPLY International Inc., a
corporation organized and existing under the laws of Delaware,
USA, with a principal place of business at 570 West College
Avenue, York, Pennsylvania 17404 ("Dentsply") Dentsply Research &
Development Corp., a Delaware corporation with a principal place
of business at 2283 Cosmos Court, Carlsbad, California 92009
("DRDC"), PDEX Acquisition Corp., a Delaware corporation with a
principal place of business at 1209 Orange Street, Wilmington,
Delaware 19801 ("PDEX"), Ceramco Inc., a Delaware corporation
with a principal place of business at Six Terri Lane, Burlington,
NJ 08016 ("Ceramco"), Dentsply DeTrey GmbH, a company organized
and existing under the laws of Germany, with a principal place of
business at DeTrey Strasse 1, D-78467 Konstanz, Germany
("DeTrey"), Dentsply Italia S.r.l., a company organized and
existing under the laws of Italy, with a principal place of
business at Via A. Cavaglieri, 26, 1-00173 Rome, Italy
("Italia"), and Dentsply France S.A.S., a company organized and
existing under the laws of France, with a principal place of
business at 17, rue Michael Faraday, 78180 Montigny le
Bretonneux, France ("France") (collectively referred to as the
"Sellers").
W I T N E S S E T H:
WHEREAS, Sellers are engaged in the business of developing,
manufacturing, marketing, producing, selling and distributing
dental imaging products and related services throughout the world;
WHEREAS, Sellers desire to divest themselves of such business and
substantially all of the assets and certain of the liabilities
associated therewith;
WHEREAS, Buyer desires to acquire such business and assets and is
willing to assume such liabilities; and
WHEREAS, Buyer and Sellers desire to consummate the transactions
contemplated hereby both directly and through their respective
Affiliates.
NOW, THEREFORE, in consideration of the mutual obligations herein
contained, intending to be legally bound, the parties agree as
follows:
ARTICLE I - DEFINITIONS
1. Definitions. In this Agreement, the following terms shall
have the meanings assigned to them below:
1.1 "Affiliate" of a specified Person (natural or juridical)
shall mean (A) a Person that directly or indirectly,
through one or more intermediaries, controls, or is
controlled by, or is under common control with the
Person specified or (B) any director, officer, partner,
member or trustee of such Person. As used herein,
"controls," "control" and "controlled" means the
possession, direct or indirect, of the power to direct
the management and policies of a Person, whether
through the ownership of 50% or more of the voting
interests of such Person, through agreement or
otherwise.
1.2 "Ancillary Agreements" shall mean all agreements, other than
this Agreement, entered or to be entered by the Sellers
and Buyer in furtherance of or in connection with the
transactions described in this Agreement, including,
but not limited to, the Bill of Sale, Assignment and
Assumption Agreement, Manufacturing Agreement,
Representative Agreement, Sublease Agreement and any
Transitional Services Agreements.
1.3 "Assets" shall mean (a) all the Patents, Trademarks and
Fixed Assets owned or used by any Sellers in connection
with the Business as currently conducted by Sellers,
(b) all Scheduled Contracts, (c) all Contracts, entered
into by any Seller in the ordinary course of business
consistent with past practice that are primarily
related to the Business and that are not required to be
listed on Schedule 4.8(b) or 4.8(c), and (d) all other
assets (other than Contracts) and rights and permits
owned by, registered in the name of, or used or held
for use by, any Sellers primarily in connection with
the Business, as conducted prior to the Closing,
including, with respect to (a) - (d) above, the assets
and rights described on Schedule 1.3A, Assets but
excluding the items described on Schedule 1.3B,
Excluded Assets.
1.4 "Base Financial Statements" shall mean the pro forma
condensed balance sheet of the Gendex Operating Units
as of, and the pro forma statement of operations for
the Business for the nine (9) month period ended,
September 30, 2003, each as set forth on Schedule 4.5.
1.5 "Business" shall mean the business represented by the
research and development, manufacturing, marketing,
selling and distribution of the Products worldwide by
Sellers, including the operations of the Business
conducted by the Gendex Operating Units and
Intercompany Locations and including all research and
product development activities and information related
to the Products. Unless otherwise indicated,
"Business" refers to the Business as conducted by
Sellers as of the date hereof and as of the Closing.
1.6 "Closing" shall mean the meeting of the parties at which the
sale, assignment, transfer and delivery of the Assets
by Sellers to Buyer, the payment of the Initial Payment
by Buyer and the other transactions contemplated hereby
are completed. The Closing shall take place at the
offices of Dentsply, York, Pennsylvania, USA, on the
later of January 2, 2004 (if the Closing occurs on
January 2, 2004, it shall be deemed to have occurred at
12:01 a.m. on January 1, 2004, or the third business
day in York, Pennsylvania following the expiration of
the Hart-Scott-Rodino waiting period; if the conditions
precedent to the Closing have not been fulfilled by
such time, then the Closing shall take place at the
same time of day in the same place on the third
business day following the day on which such conditions
precedent are fulfilled. For purposes of determining
whether an event occurred before or after the Closing
(other than the satisfaction of the closing conditions,
the delivery of the certificate contemplated by Section
3.1(vi) and the determination of any indemnification
rights and obligations in connection with the
representations and warranties set forth in Articles IV
and V), the Closing shall be deemed to have taken place
at the 12:01 a.m. on the day of Closing.
1.7 "Closing Date" shall mean the date on which the Closing
occurs.
1.8 "Confidential Information" means any information which is
proprietary or not known publicly or by the trade,
including, without limitation, information with respect
to present or future business, operations, services,
products, research, inventions, discoveries, drawings,
designs, plans, processes, models, technical
information, facilities, methods, trade secrets,
copyrights, software, source code, systems, patents,
procedures, manuals, specifications, any other
intellectual property, confidential reports, price
lists, pricing formulas, customer lists, financial
information (including the revenues, costs, or profits
associated with any products or services), business
plans, lease structure, projections, prospects,
opportunities or strategies, acquisitions or mergers,
advertising or promotions, personnel matters or legal
matters (including confidential and proprietary
information and trade secrets entrusted by third
parties in confidence).
1.9 "Contracts" shall mean all contracts, leases, commitments,
licenses, guarantees, arrangements and agreements of
every type and description to which any of the Sellers
are a party or by which any of them are bound, whether
written or oral.
1.10 "Damages" shall mean claims, losses, obligations,
Liabilities, damages (including any amounts that a
party seeking Damages is required to pay to a third
party and punitive damages), deficiencies, costs,
expenses (including, without limitation, reasonable
fees and expenses of counsel and consultants, traveling
expenses of employees and expenses of investigation),
actions, suits, proceedings, (including informal and
administrative proceedings), investigations, demands,
assessments, adjustments, audits, settlement payments,
Taxes, penalties, fines, interest (including interest
from the date of determination of such damages) and
judgments (including, without limitation, any
proceedings to establish insurance coverage).
1.11 "Encumbrance" shall mean any lien (statutory or otherwise),
security interest, charge or encumbrance of any kind or
nature whatsoever.
1.12 "EU Business" shall mean the Gendex operating units located
in Cusano Milanino, Italy and Hamburg, Germany.
1.13 "Excluded Obligations" shall mean all Liabilities of the
Business, the Gendex Operating Units and Sellers not
constituting Assumed Obligations.
1.14 "GAAP" shall mean USA generally accepted accounting
principles, consistently applied.
1.15 "Gendex Management Employees" shall mean Gary Berg, Marco
Dolci,
Gary Radwanski, Keith Trecker, John Miller, Roberto
Molteni and
Gary Sieckman.
1.16 "Gendex Operating Units" shall mean the three Gendex
operating locations of the Business based in Des
Plaines, IL, Cusano Milanino, Italy and Hamburg,
Germany.
1.17 "Governmental Authority" shall mean any federal, state,
local or foreign, governmental or quasi-governmental
entity or municipality or subdivision thereof or any
authority, department, commission, board, bureau,
agency, court, tribunal instrumentality, or applicable
self-regulatory organization (each, a "Governmental
Authority").
1.18 "Hart-Scott-Rodino" shall mean the USA Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.
1.19 "Income from Operations" shall mean Net Sales of the
Business, less cost of goods sold and distribution,
selling, general and administrative and research and
development expenses of the Gendex Operating Units, and
cost of goods sold at standard and direct expenses
and/or allocation of selling and distribution expenses
as described in Schedule 4.5 for Intercompany
Locations. Income from Operations does not include
interest, taxes, restructuring costs (including plant
relocation costs), European information technology
costs, elimination of manufacturing margin associated
with product remaining in inventory in Intercompany
Locations, and/or currency exchange gains/losses. 2003
Income from Operations includes a pro forma adjustment
to reflect the new cost structure for the DenOptix
Product under the new Alara agreement as if all product
sold in 2003 was purchased under the new agreement.
1.20 "Initial Payment" shall mean US $102.5 million.
1.21 "Intercompany Locations" shall mean Affiliate locations
that sell Products and are not a part of the Gendex
Operating Units.
1.22 "Inventories" shall be as defined on Schedule 1.3A,
Assets.
1.23 "Laws" shall mean all applicable laws, orders,
judgments, rules, codes, statutes, regulations,
requirements, variances, decrees, writs, injunctions,
awards, rulings or ordinances of any Governmental
Authority.
1.24 "Liability" shall mean any direct or indirect
obligation, indebtedness, claim, loss, damage,
deficiency, cost, expense or responsibility, whether
accrued, unaccrued, absolute, contingent, mature,
unmature or otherwise and whether known or unknown,
fixed or unfixed, choate or inchoate, liquidated or
unliquidated, secured or unsecured.
1.25 "Material Adverse Effect" shall mean any change, event
or effect with respect to the Business or Assets,
together with all other changes, events and effects
that have occurred prior to the date of determination,
that has a material adverse effect on (i) the
operations, assets or financial condition of the
Business taken as a whole, but which shall not include
general economic conditions which affects similarly
situated businesses in a similar manner or (ii) the
ability of Sellers to consummate the transactions
contemplated hereby or to perform their obligations
hereunder.
1.26 "Net Sales" shall mean gross third party sales of the
Business less provision for customer discounts,
rebates, promotions, and returns and allowances of the
Gendex Operating Units, and less only customer returns
at Intercompany Locations.
1.27 "Person" shall mean any natural person, corporation,
general partnership, limited partnership, limited
liability company, limited liability partnership,
proprietorship, trust, union, association or other
entity, enterprise or business organization.
1.28 "Product Liability Claim" shall mean any claim for
personal or bodily injury which is based on or arises
out of the design, manufacture, labeling, sale of, use
of or exposure to any Product, regardless of whether
such claim is founded in product liability, strict
liability, breach of contract, breach of express or
implied warranty, negligence, gross negligence,
enterprise or alternate liability, concert of action,
nuisance, the intentional or unintentional acts or
omissions of the party against which the claim is made,
its employees, agents or representatives, or any other
theory of recovery.
1.29."Products" shall mean the products described on
Schedule 1.28, Products.
1.30 "Purchase Price" shall mean US$102.5 million as may be
subsequently adjusted pursuant to Section 2.3 and the
other provisions of this Agreement.
1.31 "Schedules" shall mean the Schedules to this Agreement.
1.32 "Third Party Receivables" shall mean amounts due from
non-Affiliates resulting from the sale of Product.
1.33 "Third Party Payables" shall mean amounts due to
non-Affiliates for goods and services provided.
1.34 The phrase "transactions contemplated hereby (or by
this Agreement)" shall include, without limitation, the
Ancillary Agreements.
1.35 "Transferred Employee" shall mean employees of Sellers
who are employed in connection with the Business by
Sellers and become an employee of Buyer in connection
with the transactions contemplated hereby.
1.36."US" and "USA" shall mean United States of America.
1.37 "US Business" shall mean the Gendex operating unit
located in Des Plaines, Illinois, USA.
1.38 "US Facility" shall mean the property located at 901 W.
Oakton Street,
Des Plaines, Illinois, which is partially utilized by
the Business.
1.39."VAT" shall mean any applicable value added tax.
ARTICLE II - PURCHASE AND SALE OF ASSETS
2.1 Transfer.
(a) At the Closing, Sellers shall sell, assign, transfer and
deliver the Assets to Buyer free and clear of all
Encumbrances, restrictions and rights of others
(except for Permitted Encumbrances), and Buyer
shall purchase and acquire the Assets from Sellers.
(b) At any time after the Closing and prior to the second (2nd)
anniversary of the Closing, Sellers shall assign,
transfer and deliver to Buyer at Buyer's request
any Contract (other than an Excluded Asset)
relating primarily to the Business that was in
effect prior to the Closing and that should have
been on the Scheduled Contract list but was
omitted (each, an "After-Assigned Contract"), and
Buyer shall assume such After-Assigned Contract
from Sellers. The consideration for the
assignment of the After-Assigned Contracts shall
be the payment of the Purchase Price under Section
2.2 of this Agreement and no further consideration
shall be paid for such assignment. Sellers shall
have no obligation under this provision to renew
or re-enter any expired Contract.
2.2 Payment of Purchase Price. Buyer shall pay the Initial
Payment to the order of Dentsply at the Closing by the
wire transfer of immediately available funds from banks
selected by Buyer to the account(s) selected by
Dentsply and notified in writing to Buyer no later than
one (1) business day prior to the Closing.
2.3 Adjustments to Purchase Price.
(a) There shall be an adjustment to the Purchase Price for the
Gendex Operating Units, if necessary, as set forth
in this paragraph. Within ninety (90) days of
Closing, the Buyer shall provide a statement to
Dentsply of Buyer's calculation of the amount of
Inventory, Third Party Payables, accrued
liabilities (which does not include the liability
for the frozen Gendex pension plan), Fixed Assets
(gross asset value without depreciation or
amortization) and other assets (prepaid assets and
travel advances) for the Gendex Operating Units
and Third Party Receivables for the EU Business
("Gendex Operating Unit Net Working Capital") as
of Closing determined consistent with the past
practices and accounting policies of Dentsply. To
the extent the Gendex Operating Unit Net Working
Capital is between $19,661,000 and $23,661,000,
then no adjustments to the Purchase Price shall be
made. To the extent that the Gendex Operating
Unit Net Working Capital exceeds $23,661,000,
Buyer shall pay such additional amount to
Dentsply. To the extent the Gendex Operating Unit
Net Working Capital is less than $19,661,000,
Dentsply shall pay Buyer such amount.
(b) There shall also be an adjustment to the Purchase Price, if
necessary, for the Inventory at Intercompany
Locations, as set forth in this paragraph. Within
thirty (30) days of Closing, the Dentsply shall
provide a statement to Buyer of the book value of
the total Inventory at Intercompany Locations as
of Closing. For purposes of this Section 2.3, the
"value" of the Inventory shall mean the value
computed in accordance with the first sentence of
Section 4.10. If the book value of such Inventory
is less than $1 million, Dentsply shall pay to
Buyer the amount by which the value of such
Inventory is below $1 million. Except as provided
in the preceding sentence, there shall be no
adjustment to the Purchase Price pursuant to this
Section 2.3(b).
(c) In the event that either Dentsply or Buyer provides notice
that it disagrees/objects to any of the other
Party's valuations as set forth in this Section
2.3, and the parties are unable to resolve such
objection within thirty (30) days of such notice
(the "Resolution Period") then such valuations
shall be determined in accordance with the
provisions of this Agreement by a USA national or
large regional public accounting firm ("Neutral
Auditor"). The fees and expenses of the Neutral
Auditor shall be shared equally by Buyer and
Dentsply. Buyer and Dentsply shall furnish to the
Neutral Auditor such work papers and other
documents and information relating to the disputed
issues as the Neutral Auditor may request and are
available to that party, and Buyer and Dentsply
shall be afforded the opportunity to present to
the Neutral Auditor any material relating to the
determination and to discuss the determination
with the Neutral Auditor. The Neutral Auditor
shall determine only those issues still in dispute
and shall apply appropriate accounting standards
in reaching such determination. The Neutral
Auditor's determination shall be made within
thirty (30) days of its selection, shall be set
forth in a written statement delivered to Dentsply
and Buyer, and shall be final, binding and
conclusive, except for manifest error.
(d) "Neutral Auditor" shall mean KPMG LLP, or, in the event KPMG
LLP has an actual conflict of interest at the time
such dispute is to be submitted to it, to another
public accounting firm mutually agreed on by the
parties, or if the parties cannot agree on such
firm within thirty (30) days after the conclusion
of the Resolution Period, a USA national or large
regional public accounting firm chosen by lot from
a group of four (4) comprised of two (2) such
firms nominated by each party (which shall not
include a firm that has an existing relationship
with either party). The failure of one party to
submit the names of two such firms within five (5)
business days of a written request to do so by the
other party shall constitute a waiver of that
right.
(e) Any adjustments to the Purchase Price made pursuant to this
Section 2.3 shall, within five (5) business days
after the determination is agreed to by Buyer and
Dentsply or is ultimately determined by the
Neutral Auditor, be paid by wire transfer in
immediately available funds to the account
specified by the party to whom such payment is
owed.
2.4 Assumption of Obligations; Retention of Excluded
Obligations.
(a) Buyer shall assume the obligations and liabilities
described on Schedule 2.4, Assumed Obligations,
and only the Assumed Obligations, as of the
Closing. Buyer shall perform all Assumed
Obligations and shall promptly reimburse Sellers
for the reasonable out-of-pocket cost of
performance actually incurred by Sellers in
performing any Assumed Obligation the performance
of which by Buyer is not accepted by the obligee
in the exercise of such obligee's lawful rights.
(b) Sellers shall retain the Excluded Obligations.
Sellers shall perform all Excluded Obligations and
shall promptly reimburse Buyer for the reasonable
out-of-pocket cost of performance actually
incurred by Buyer in performing any Excluded
Obligation the performance of which any Seller is
legally obligated to provide but is not provided
by Sellers.
2.5 Proration. Real and personal property Taxes and
assessments and other similar items which relate to an
obligation with regard to the Assets for a time period
which does not coincide with the Closing Date, shall be
prorated between Sellers and Buyer based on the number
of days in the period up to the Closing Date and after
the Closing Date, and all other Taxes shall be prorated
between Buyer and Sellers as if the tax period ended as
of the close of business at 12:01 a.m. on the Closing
Date, in each case with Sellers being responsible for
payment of all such items with respect to the period
before the Closing and Buyer being responsible for all
such items with respect to the period after the
Closing, regardless of when levied or due.
2.6..Instruments of Transfer and Assumption; Deliverables.
(a) Sellers shall deliver to Buyer the following at the Closing
(the delivery of any of which may be waived in
writing by Buyer):
(i) Assignment and Assumption Agreement. An
Assignment and Assumption Agreement in a form
reasonably acceptable to the parties duly
executed by the appropriate Seller(s);
(ii) Bill of Sale. A Bill of Sale selling,
assigning, conveying and transferring the
Assets to Buyer free and clear of all
Encumbrances in a form reasonably acceptable
to the parties duly executed by the
appropriate Seller(s);
(iii)Sublease. A Sublease in the form attached
hereto as Exhibit 2.6A duly executed by the
appropriate Seller(s);
(iv) Patent Assignment. A Patent Assignment
assigning Sellers entire right, title and
interest in any Patents included in the
Assets in a form reasonably acceptable to the
parties duly executed by the appropriate
Seller(s);
(v) Trademark Assignment. A Trademark Assignment
assigning Sellers entire right, title and
interest in any Trademarks included in the
Assets in a form reasonably acceptable to the
parties duly executed by the appropriate
Seller(s);
(vi) Opinion of Counsel. An opinion of Dentsply's General
Counsel, dated the Closing Date, in a form
reasonably acceptable to the parties;
(vii) Secretary's Certificate. A certificate executed by the
Secretary of Dentsply certifying the due
authorization of the Transactions
contemplated herein by the Sellers and
specimen signatures of the officers of
Sellers authorized to sign this Agreement and
the other documents contemplated hereby;
(viii).....Encumbrance Releases. Releases of all encumbrances
(other than Permitted Encumbrances) on the
Assets;
(ix) Consents. The consents from the other party to assignment
of the Material Contracts identified on
Schedule 2.6(a)(x);
(x) Manufacturing Agreement. A Manufacturing Agreement in the
form attached hereto as Exhibit 2.6B duly
executed by the appropriate Seller(s);
(xi) Representative Agreement. A Representative Agreement in the
form attached hereto as Exhibit 2.6C duly
executed by the appropriate Seller(s); and
(xii) Non-Compete Agreement. A Non-Compete Agreement as agreed to
by the parties.
(b) Buyer shall deliver to Dentsply the following at the Closing
(the delivery of any of which may be waived in
writing by Seller):
(i) Initial Payment. The Initial Payment by wire transfer of
immediately available funds;
(ii) Assignment and Assumption Agreement. An
Assignment and Assumption Agreement in a form
reasonably acceptable to the parties duly
executed by Buyer;
(iii)Sublease. A Sublease in the form attached
hereto as Exhibit 2.6A duly executed by Buyer;
(iv) Opinion of Counsel. An opinion of Wilmer,
Cutler & Pickering, counsel to Buyer, dated
the Closing Date, in a form reasonably
acceptable to the parties;
(v) Secretary's Certificate. A certificate
executed by the Secretary of Buyer certifying
that the due authorization of the
Transactions contemplated herein by the Buyer
and specimen signatures of the officers of
Buyer authorized to sign this Agreement and
the other documents contemplated hereby;
(vi) Manufacturing Agreement. A Manufacturing
Agreement in the form attached hereto as
Exhibit 2.6B duly executed by Buyer;
(vii) Representative Agreement. A Representative Agreement in the
form attached hereto as Exhibit 2.6C duly
executed by Buyer; and
(viii).....Non-Compete Agreement. A Non-Compete Agreement as
agreed to by the parties.
(c) Before, at and after the Closing, Sellers shall take such
reasonable and practicable steps to put Buyer in
actual possession and operating control of the
Assets as of the Closing. Without limiting the
foregoing, as between Buyer and Sellers, Buyer
shall have the unlimited right to possess and
control the Assets as of the Closing, except as
provided otherwise in this Agreement.
2.7..Consents.
(a) Buyer and Sellers shall cooperate in securing before and
after the Closing the prompt consent, approval,
waiver or permit from each person or Governmental
Authority whose consent, approval, waiver or
permit is necessary to the Closing or for the
conduct of the Business by Buyer after the
Closing. The initial Hart-Scott-Rodino filings
shall be made by Buyer and Dentsply within ten
(10) business days after the date hereof and
diligently prosecuted thereafter, looking toward a
timely Closing. Buyer and Sellers agree to comply
with other reasonable requests for information
from Governmental Authorities, to the extent
required by applicable Law. The parties will make
all other filings required by any applicable
antitrust or competition laws of any other
jurisdiction as soon as practicable. Except as
may be restricted by applicable Law, (i) the
parties hereto shall cooperate with each other
with respect to the obtaining of information
needed for the preparation of the Notification and
Report Forms required to be filed pursuant to
Hart-Scott-Rodino or the applicable Law of any
other jurisdiction in connection with the
transactions contemplated hereby, (ii) the parties
shall use reasonable efforts and shall cooperate
in responding to any written or oral requests from
Governmental Authorities for additional
information or documentary evidence, and (iii) the
parties shall cooperate and shall provide notice
and opportunity to consult regarding all meetings
with Governmental Authorities, whether in person
or telephonic, and regarding all written
communications with Governmental Authorities, in
each case in connection with the transactions
contemplated hereby. Notwithstanding this Section
2.7 or any other provision of this Agreement, for
purposes of or in connection with obtaining
clearance or approval from any Governmental
Authority of the transaction described in this
Agreement, Buyer shall not be obligated to (and
shall not be obligated to cause any of its
Affiliates to), agree to divest, hold separate or
otherwise materially restrict the use or operation
of any business or assets of Buyer (or any of its
Affiliates) or agree to divest, hold separate or
otherwise materially restrict the use or operation
of the Business or Assets.
(b) Nothing in this Agreement shall be deemed to constitute or
require an assignment or an attempt to assign any
Contract if the attempted assignment thereof,
without the consent of any other party to such
Contract, would constitute a breach thereof or
adversely affect in any way the rights of any of
the Sellers and its assignee thereunder. If,
after Sellers shall have used commercially
reasonable efforts (which shall not include or
require the payment of additional amounts) to
obtain such consents from any such third party,
any such consent shall not have been obtained at
or prior to the Closing, or the attempted
assignment of such Contract without such consent
at the Closing would have an adverse effect on
such rights or Buyer would not in fact receive
such rights, Sellers shall continue to use
commercially reasonable efforts following the
Closing to obtain such consent or, at Buyer's
request, Sellers shall cooperate with Buyer in any
reasonable arrangement, which shall not require
additional cost or expense to Sellers (except for
costs and expenses for which Buyer agrees to
reimburse Sellers), designed to provide for Buyer
the benefits thereunder, including enforcing for
the benefit of Buyer, at Buyer's expense, any
rights of Sellers against any such third party
arising out of the breach or cancellation thereof
by any such third party or otherwise. Nothing in
this Section 2.7(b) shall be deemed to negate,
limit or satisfy the deliveries required by
Section 2.6(a)(x).
2.8..Further Assurances.
(a) Buyer and Sellers shall each, from time to time after the
Closing, at the request of the other and without
further consideration, promptly execute and
deliver such further instruments of assignment,
transfer or assumption, and take such further
action as the other may reasonably request in
order to effectively transfer, reduce to
possession and record title to any of the Assets,
to permit Buyer to operate the Business or to
implement the assumption of the obligations
described in Section 2.4.
(b) Within six (6) months after the Closing, Buyer shall, at its
expense, prepare and submit to Sellers for
signature the documentation necessary to record
the transfers of the trademarks, patents and any
applications therefor included in the Assets.
Buyer shall thereafter exert reasonable efforts to
promptly complete the recordation of such
transfers. After the Closing, Sellers' obligation
with respect to the maintenance of any Assets
which are the subject of this Agreement, including
trademark registrations, patents and patent
applications not yet formally transferred to
Buyer, shall be limited to prompt transmittal to
Buyer of written notices relating thereto which
are received by any of the Sellers.
(c) Subsequent to Closing, Buyer shall take no action for the
purpose of diminishing Sellers' ability to collect
outstanding accounts receivables for Products sold
by Sellers prior to Closing. This provision shall
in no way restrict Buyer from operating the
Business in the ordinary course.
(d) Subsequent to Closing, Sellers shall take no action for the
purpose of diminishing Buyer's ability to collect
outstanding accounts receivables for Products sold
by Buyer after Closing or the accounts receivable
included in the Assets. This provision shall in
no way restrict Sellers from collecting accounts
receivable or conducting its business in the
ordinary course. To the extent customers submit
payment to Sellers of EU Receivables after
Closing, Sellers shall promptly deliver such
payment to Buyer (and in any event no later than
five (5) business days after receipt).
2.9 Sales and Transfer Taxes; Fees. All sales, transfer,
documentary, use, filing and other Taxes and fees
(including, without limitation, withholding, excise and
customs taxes) applicable to the sale, assignment,
transfer or delivery of the Assets hereunder shall be
borne equally by Buyer and Sellers. To the extent the
sale of any of the Assets is subject to VAT or any
similar such tax, Sellers shall be entitled to charge
such Tax to Buyer in addition to the Purchase Price by
presenting a bill corresponding to the applicable Tax.
2.10 Relocation of Assets. Buyer shall determine and advise
Sellers within ninety (90) days of Closing where the
Assets are to be delivered (other than inventory at
Intercompany locations which may be left in place as
consigned goods pursuant to the Representative
Agreement). The costs of relocating Assets, to the
extent necessary, from Sellers' premises to Buyer's
premises shall be borne by Buyer. Such costs shall
include, without limitation, delivery and
transportation costs, dismantling, engineering costs
associated with removing machinery and equipment and
making consequent repairs to the vacated space for any
damage or injury caused by such removal. The parties
shall agree on a reasonable schedule for such
relocation of Assets after the Closing, taking into
account the need and capabilities of their Affiliates
and the objective to complete such relocation on a
reasonably prompt basis.
2.11 Transferred Employees. Buyer shall offer to continue
the current employment, as of Closing, of all employees
of the Business as required by local law, and the
employees of the Gendex Operating Units, except as set
forth in Schedule 4.12. To the extent required by the
any of the agreements identified in Schedule 4.8(b) or
(c) or local law, Buyer shall provide to Transferred
Employees substantively similar terms and conditions of
employment as provided to Transferred Employees prior
to Closing, excluding the benefits derived from the
DENTSPLY International Employee Stock Ownership Plan.
In the event of termination by Buyer of a Transferred
Employee within six (6) months of the Closing
("Terminated Employee"), such Terminated Employee(s)
shall receive a severance payment from Buyer in
accordance with applicable Sellers' severance plan in
effect as of September 30, 2003 or as required by law,
calculated with credit for service with Sellers.
ARTICLE III - CONDITIONS PRECEDENT
3.1 Conditions to Buyer Closing. Except as may be waived by
Buyer, the obligation of Buyer to close the transaction
described herein is subject to the fulfillment of the
following conditions: (i) the waiting period (and any
extension thereof) under Hart-Scott-Rodino or under any
other material applicable domestic or foreign Laws that
suspends the right to close the transactions
contemplated hereby shall have expired without any
action being filed by the government thereunder; (ii)
no temporary restraining order, preliminary or
permanent injunction or other order issued by any court
of competent jurisdiction or other legal or regulatory
restraint or provision challenging Buyer's proposed
acquisition of the Business or limiting or restricting
Buyer's operation of the Business following the Closing
shall be in effect, nor shall any proceeding brought by
an administrative agency or commission or other
Governmental Authority, seeking any of the foregoing be
pending, nor shall there be any action, suit, claim or
proceeding of any nature pending with respect to the
Business, that if decided adversely, would,
individually or in the aggregate, be likely to result
in a Material Adverse Effect; (iii) Sellers shall have
performed or complied in all material respects with all
obligations, agreements and covenants contained in this
Agreement (or in any of the other documents or
instruments to be delivered in connection herewith) to
be performed or complied with by Sellers prior to the
Closing; (iv) as of the date of this Agreement, to
Sellers' knowledge, the representations and warranties
of Sellers contained in this Agreement that are
qualified with respect to materiality or Material
Adverse Effect are true and correct in all respects,
and any such representations and warranties that are
not so qualified are true and correct in all material
respects; (v) since the date of the Base Financial
Statements, there shall not have been, individually or
in the aggregate, any Material Adverse Effect or
any change or event that would, within a reasonable
period of time, likely result in a Material Adverse
Effect; (vi) Buyer shall have received a certificate
signed by an executive officer of Dentsply dated as of
the Closing, to the effect that all of the conditions
to closing in Section 3.1 have been satisfied or waived
by Buyer; and (vii) Sellers shall have made all
deliveries required to be made at or prior to the
Closing pursuant to this Agreement, including those set
forth in Section 2.6(a). Payment of any portion of the
Purchase Price shall be Buyer's waiver of any condition
described in this paragraph.
3.2 Conditions to Sellers Closing. Except as may be waived by
Dentsply, the obligation of Sellers to close the
transaction described herein is subject to the
fulfillment of the following conditions: (i) the
waiting period (and any extension thereof) under
Hart-Scott-Rodino or under any material applicable
domestic or foreign Laws that suspends the right to
close the transactions contemplated hereby shall have
expired without any action being filed by the
government thereunder; (ii) no temporary restraining
order, preliminary or permanent injunction or other
order issued by any court of competent jurisdiction or
other legal or regulatory restraint or provision
challenging Buyer's proposed acquisition of the
Business, shall be in effect, nor shall any proceeding
brought by an administrative agency or commission or
other Governmental Authority, seeking any of the
foregoing be pending; (iii) Buyer shall have performed
or complied in all material respects with all
obligations, agreements and covenants contained in this
Agreement (or in any of the other documents or
instruments to be delivered in connection herewith) to
be performed or complied with by Buyer prior to the
Closing; (iv) Dentsply shall have received a
certificate signed by an executive officer of Buyer,
dated as of the Closing, to the effect that all of the
conditions to closing set forth in Section 3.2 have
been satisfied or waived by Dentsply; and (v) Buyer
shall have made all deliveries required to be made at
or prior to the Closing pursuant to this Agreement,
including those set forth in Section 2.6(b).
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in this Agreement or the Schedules hereto,
including specifically Schedule 4, Exceptions, Sellers jointly
and severally represent and warrant to Buyer as of the date
(except as otherwise stated within any such representation) of
this Agreement and the Closing as follows:
4.1 Sellers Organization and Good Standing. Sellers are
corporate entities duly organized, validly existing and
in good standing under the laws of their state or
country of formation, and have all requisite corporate
power to execute, deliver and perform this Agreement
and carry on their business as is now being conducted.
Sellers are duly authorized and qualified to do
business under all applicable Laws to own, lease and
operate their properties and to carry on their business
in the places and in the manner as now being conducted,
except where the failure to be so authorized or
qualified does not and would not have, individually or
in the aggregate, a Material Adverse Effect. Sellers
are duly qualified to do business as a foreign
corporation and are in good standing in each
jurisdiction in which failure to be so qualified would
have, individually or in the aggregate, a Material
Adverse Effect.
4.2 Authority; Execution and Delivery. The execution, delivery
and performance of this Agreement by Sellers,
including, without limitation, the sale, assignment,
transfer and delivery contemplated hereby, have been
duly and effectively authorized by all requisite
corporate action by Sellers. No other corporate
proceedings on the part of Sellers are necessary to
authorize this Agreement and the transactions
contemplated hereby; and this Agreement has been duly
executed and delivered by Sellers and constitutes the
legal, valid and binding obligation of Sellers
enforceable against Sellers in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting
the enforcement of creditors' rights in general or
general principles of equity.
4.3 Consents; No Conflicts. Subject to the provisions of this
Agreement and satisfying the requirements of
Hart-Scott-Rodino and similar applicable foreign Laws,
the execution, delivery and performance by Sellers of
this Agreement and the consummation by Sellers of the
transactions contemplated hereby will not, with or
without the giving of notice or the passage of time,
(a) violate any Law, ordinance, rule or regulation, or
any judgment, writ injunction or order of any court,
arbitrator or Governmental Authority, applicable to
Sellers in any manner which would have, individually or
in the aggregate, a Material Adverse Effect,
(b) constitute a violation of or conflict with any
provision of the formation or governance documents of
Sellers or any applicable resolution of the Board of
Directors or stockholders of Dentsply, (c) require the
consent, approval, permission or other authorization of
or by or filing or qualification with any Governmental
Authority, the failure of which to obtain would have,
individually or in the aggregate, a Material Adverse
Effect, (d) result in the creation of any Encumbrance
upon the Assets under, or constitute a default or give
rise to a right of termination under, any Material
Contract, or (e) except as provided in clause (d),
result in the creation of any Encumbrance upon the
Assets under, or constitute a default or give rise to a
right of termination under, any material license,
franchise, Contract, lease, mortgage, agreement or
other instrument concerning the Business to which any
of the Sellers is a party or by which any of the Assets
is bound or from which it derives benefit, in any
manner which would have, individually or in the
aggregate, a Material Adverse Effect.
4.4 Legal Proceedings. There is no legal proceeding or other
legal action (including arbitrations, governmental
investigations or inquiries) pending or, to Sellers'
knowledge, threatened against Sellers that could
prevent the consummation of the transactions
contemplated by this Agreement or affect Sellers'
ability to perform their obligations under this
Agreement and no notice of any such legal proceeding or
other legal action has been received by Sellers.
4.5 Financial Information. Schedule 4.5, Financial Information,
reflects the pro forma Net Sales and Income From
Operations associated with the Business for the fiscal
years ending December 31, 2001 and 2002, and the nine
(9) months ending September 30, 2003, and the pro forma
condensed balance sheet of the Gendex Operating Units
as of September 30, 2003, as included in the
Consolidated Financial Statements of Dentsply which
Consolidated Financial Statements are prepared in
accordance with Dentsply's accounting procedures and
GAAP applied on a consistent basis, such Financial
Information being prepared as described in the
definitions of and notes reflected on Schedule 4.5.
The Deal Balance Sheet as reflected in Schedule 4.5
reflects the pro forma condensed balance sheet of the
Gendex Operating Units as described above and in Note 1
of the Financial Information as contained in Schedule
4.5, adjusted for assets and liabilities that are not
being transferred under this Agreement as described in
Note 2 to the Financial Information in Schedule 4.5.
4.6 Permits and Registrations. The Sellers or Sellers'
Affiliates hold all material permits, product import
and manufacturing and other licenses, franchises,
product registrations and other authorizations
("Permits") of any Governmental Authority necessary for
the conduct of the Business. All such Permits have
been duly obtained and are in full force and effect.
Sellers are in all material respects in compliance with
all such Permits, and no event has occurred and is
continuing which permits, or after notice or lapse of
time or both would permit, and to Sellers' knowledge no
Governmental Authority intends to modify, cancel,
terminate or not renew any material Permit. To
Sellers' knowledge, no Person other than Sellers, own
or has any proprietary interest (direct or indirect) in
any material Permit. Such Permits are assignable to
Buyer and will not be lost, modified or otherwise
unavailable to Buyer in a manner which would materially
affect Buyer's ability to conduct the Business as
heretofore conducted. There are no pending
applications for any material amendments or
modifications to any such Permits.
4.7 Absence of Certain Changes or Events. Since January 1,
2003, there has not been any: (a) change in the
Business' assets, liabilities or operations, except for
changes which have been in the ordinary course of
business consistent with past practice and which have
not, individually or in the aggregate, had a Material
Adverse Effect; (b) creation of any material
Encumbrances against any of the Assets, except the lien
of current real and personal property taxes and other
governmental charges incurred but not yet due and
payable, or other non-material Encumbrances incurred in
the ordinary course of business consistent with past
practice; (c) entering into, material modification,
cancellation or termination of any Contract material to
the Business, other than in the ordinary course of
business and in accordance with their respective terms;
(d) any increase in salary, bonuses or other
compensation of the hourly and salaried employees of
the Business, except in the ordinary course of business
consistent with past practice, nor any entering into,
amendment or termination in any material respect of any
Seller Benefit Plan, Seller Benefit Arrangement,
employment, severance, or other agreement relating to
compensation or fringe benefits covering employees of
the Business; (e) change in accounting methods or
practices (including any change in depreciation or
amortization policies or rates, or policies with
respect to reserves for uncollectible accounts
receivable or excess or obsolete inventory) or the
revaluation of any assets of the Business (including
the Assets); (f) material failure to operate the
Business in the ordinary course consistent with past
practice; or (g) negotiation or agreement by Sellers or
any officer or employee thereof to do any of the things
described in the preceding clauses (a) through (f)
(other than negotiations in connection with the
transactions of the type contemplated in this
Agreement).
4.8 Contracts.
(a) "Material Contract" shall mean any Contract (other
than purchase orders in the ordinary course of
business consistent with past practice) related to
the Business or any Asset: (i) that may give rise
to obligations or Liabilities exceeding $125,000
in any calendar year period (or the equivalent
value in the applicable currency); (ii) containing
any non-solicitation, non-competition,
confidentiality or similar obligations which
prohibits Sellers, in connection with the
Business, from freely providing services or
supplying products of the Business to any customer
or potential customer in any part of the world;
(iii) for cleanup, abatement or other actions in
connection with any Hazardous Material, the
remediation of any existing environmental
Liabilities or violation of any Environmental
Laws; or (iv) any license agreement relating to
material Business Intellectual Property.
(b) Schedule 4.8(b), Material Contracts, sets forth a
complete and accurate list of all Material
Contracts and constitutes all the Material
Contracts in connection with the Business as
conducted by Sellers. Each Material Contract, is
in full force and effect and is a legal, valid,
binding and enforceable obligation of or against
each of the parties thereto. Except for breaches
or defaults which have been cured and for which
the breaching party has no Liability, none of the
Sellers nor, to Sellers' knowledge, any other
party to any Material Contract, has breached or
defaulted in any material respect under, or has
improperly terminated, revoked or accelerated, any
Material Contract, and to Sellers' knowledge,
there exists no condition or event which, after
notice or lapse of time or both, would constitute
any such breach, default, termination, revocation
or acceleration.
(c) Schedule 4.8(c) lists all Contracts (other than
purchase orders in the ordinary course of business
consistent with past practice) involved in the
Business at the Gendex Operating Units which give
rise to obligations or liabilities in excess of
$50,000 in any calendar year period.
Collectively, the Material Contracts and the
Contracts listed on Schedule 4.8(c) are referred
to herein as the "Scheduled Contracts."
4.9 Assets. Schedule 4.9, Fixed Assets, reflects all material
items of machinery and equipment ("Fixed Assets") which
are Assets hereunder. Except as set forth on Schedule
4.9 as excluded assets, the Fixed Assets constitute all
machinery and equipment used in the Business as
currently conducted by Sellers. Sellers have good and
marketable title to, a valid leasehold in, or valid
license or right to use, all Fixed Assets to be
transferred to Buyer free and clear of all
Encumbrances, except (a) the lien of current real and
personal property taxes and other similar governmental
charges incurred but not yet due and payable, (b)
worker's, mechanic's, supplier's, carrier's,
warehouseman's or other similar liens arising in the
ordinary course of business consistent with past
practice, and (c) such imperfections of title and
Encumbrances, if any, as do not, individually or in the
aggregate, materially detract from the value, or
materially interfere with the present use, of the
Assets or otherwise materially impair the operations of
the Business (the liens described in clauses (a)-(c),
"Permitted Encumbrances"). Each item of tangible
personal property included in the Fixed Assets is in
operating condition for the Business as currently
conducted (ordinary wear and tear which are not such as
to materially adversely affect the operation of the
Business excepted). Except as set forth in the
Schedules , the Fixed Assets (together with the
Business Intellectual Property, the Real Property, the
Scheduled Contracts, the Inventory and the Contracts
assigned to Buyer pursuant to Section 1.3(c)),
constitute all of the material assets, rights and
properties used for the conduct of
the Business as currently conducted by the Sellers and
their Affiliates, other than at the Intercompany
Locations, and for such Locations, constitute all of
the material assets, rights and properties used
primarily for the conduct of the Business as currently
conducted.
4.10 Inventory. The values at which the Inventory of the
Business is carried and set forth on the Base Financial
Statements reflect the valuation policy of stating
Inventories at cost or market, whichever is lower, on a
first-in, first-out basis or average cost method, and
reflect adequate write-offs, write-downs and reserves
for damaged, defective, excess, slow-moving or obsolete
items, computed in accordance with GAAP consistent with
Sellers' past practices (except as reflected in the
Notes to Schedule 4.5). The Inventory of the Business
(net of all reserves for obsolete, excess, slow-moving
and defective Inventory reflected on the Base Financial
Statements), is usable or salable in the ordinary
course of business consistent with past practice,
conforms to the specifications established therefor,
and includes (except as reserved as noted above) no
damaged, defective, excess, slow-moving, or obsolete
items.
4.11 Intellectual Property.
(a) Definitions.
(i) "Copyrights" shall mean registered and
unregistered copyrights, copyright
registrations, renewals thereof, and
applications to register the same.
(ii) "Domain Names" shall mean Internet domain
names.
(iii)"Intellectual Property" shall mean
Trademarks, Patents, Copyrights, Software,
Domain Names, Internet Sites, Licenses-In,
Licenses-Out, Proprietary Rights and the
goodwill associated therewith.
(iv) "Internet Sites" shall mean URLs, and
Internet web-sites and the content thereof.
(v) "Licenses-In" shall mean licenses,
sublicenses and agreements pursuant to which
the Sellers have acquired rights in or to any
of the Trademarks, Patents, Copyrights,
Software, Domain Names or Proprietary Rights.
(vi) "Licenses-Out" shall mean licenses,
sublicenses and agreements pursuant to which
any of the Sellers have licensed or
transferred any rights to any of the
Trademarks, Patents, Copyrights, Software,
Domain Names or Proprietary Rights.
(vii)"Patents" shall mean issued foreign and
domestic patents, patent rights, patent
applications.
(viii) "Proprietary Rights" shall mean
categories of trade secrets, trade dress,
know-how, inventions, invention disclosures
(whether or not patentable and whether or not
reduced to practice), inventor rights,
reports, discoveries, developments, research
and test data, blueprints, technology, ideas,
compositions, quality records, engineering
notebooks, models, processes, procedures,
prototypes, patent records, manufacturing and
product procedures and techniques,
troubleshooting procedures, failure/defect
analysis data, drawings, specifications,
designs, ingredient or component lists,
formulae, plans, proposals, technical data,
copyrightable works, financial, marketing,
customer and business data, pricing and cost
information, business and marketing plans,
selling information, marketing information,
customer and supplier lists and information,
and all other confidential and proprietary
information.
(ix) "Software" shall mean software, computer
programs, computer systems, modules and
related data and databases and materials.
(x) "Trademarks" shall mean registered and
unregistered trademarks, trademark
registrations, trademark rights and renewals
thereof, trade names, trade name rights,
servicemarks, servicemark registrations and
renewals thereof, servicemark rights, and all
applications to register the same.
(xi) "Transferred Software" shall mean (i) in the
case of Software subject to standard,
off-the-shelf, non-exclusive shrinkwrap
software licenses granted to end-user
customers by third parties in the ordinary
course of such third parties' business, all
such Software used by Sellers exclusively in
the Business, and (ii) in the case of all
other Software, such Software used by Sellers
primarily in the Business.
(b) Schedules 4.11 A, B and C collectively set forth a
complete list, in each case, of (i) all United
States and foreign Trademarks and Patents owned
and/or used in connection with the Business as
conducted by Sellers, (ii) Domain Names, and
Internet Sites used by Sellers exclusively in the
Business, and (iii) Licenses-In and Licenses-Out
of Patents and Trademarks in connection with the
Business (collectively, the "Listed Intellectual
Property").
(c) Each item of Listed Intellectual Property is
subsisting, and all necessary registration,
maintenance and renewal fees currently due in
connection with such Listed Intellectual Property
have been paid and all appropriate documents and
certificates in connection with such Listed
Intellectual Property have been filed with the
relevant patent, copyright, trademark or other
authorities in the United States or foreign
jurisdictions, as the case may be, as necessary
for maintaining or prosecuting such Listed
Intellectual Property in the countries indicated
on the Schedule.
(d) Sellers own and have good and marketable title to,
or possess legally enforceable and transferable
rights to use under valid and subsisting written
license agreements (each of which is listed on
Schedule 4.8 and true and correct copies of which
have been provided to Buyer), each item of Listed
Intellectual Property, Transferred Software and
each other item of Intellectual Property primarily
used in the Business as currently conducted by
Sellers (such Transferred Software and other
Intellectual Property, together with the Listed
Intellectual Property, the "Business Intellectual
Property"), in each case free and clear of any
Encumbrances (excluding licenses and related
restrictions disclosed on any schedule hereto).
(e) The Business Intellectual Property and operations
of Sellers in conducting the Business (including
the performance of any Contract) as conducted in
the past and as now conducted have not and do not,
to Sellers' knowledge, (i) infringe on any
Intellectual Property of any third party, (ii)
constitute a misappropriation of any Intellectual
Property of any third party, (iii) entitle any
third party to any interest therein, or right to
compensation from any Seller or any of its
successors or assigns, by reason thereof
(excluding licenses), or (iv) violate any
applicable Law. Sellers have not received any
written complaint, threat, allegation, invitation
to license, or assertion of any claim, litigation,
or proceeding that the Business Intellectual
Property or operations of Sellers in conducting
the Business infringe upon or conflict with the
rights of any third party Intellectual Property.
4.12.Employee Matters.
(a) With respect to employees of the Business, the following
terms shall have the following meanings:
(i) "Benefit Arrangement" shall mean any benefit arrangement,
obligation, or practice, whether or not
legally enforceable, to provide benefits
(other than merely as salary or under a
Benefit Plan), as compensation for services
rendered, to present or former directors,
employees, agents, or independent
contractors, including, but not limited to,
employment or consulting agreements,
severance agreements or pay policies, stay or
retention bonuses or compensation, executive
or incentive compensation programs or
arrangements, sick leave, vacation pay, plant
closing benefits, salary continuation for
disability, workers' compensation,
retirement, deferred compensation, bonus,
stock option or purchase plans or programs,
patent award, tuition reimbursement or
scholarship programs, employee discount
programs, meals, travel, or vehicle
allowances, any plans subject to Code Section
125, and any plans providing benefits or
payments in the event of a change of control,
change in ownership or effective control or
sale of a substantial portion (including all
or substantially all) of the assets of any
business or portion thereof, in each case
with respect to any present or former
employees, directors, or agents.
(ii) "Benefit Plan" shall have the meaning given in ERISA
Section 3(3), together with plans or
arrangements that would be so defined if they
were not (A) otherwise exempt from ERISA by
that or another section, (B) maintained
outside the United States, or (C)
individually negotiated or applicable only to
one person.
(iii) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended, and all regulations
and rules issued thereunder, or any successor
law.
(iv) "ERISA Affiliate" shall mean any person or entity that,
together with the entity referenced, would be
or was at any time treated as a single
employer under Code Section 414 or ERISA
Section 4001 and any general partnership of
which the entity is or has been a general
partner.
(v) "Foreign Plan" shall mean any Benefit Plan or Benefit
Arrangement covering any employee of the
Business, which plan, program or arrangement
is subject to the laws of any jurisdiction
outside of the United States.
(vi) "Multiemployer Plan" shall mean any Benefit Plan described
in ERISA Section 3(37).
(vii) "Pension Plan" shall mean any Benefit Plan subject to Code
Section 412 or ERISA Section 302 or Title IV
(including any Multiemployer Plan) or any
comparable plan not covered by ERISA.
(viii)....."Seller Benefit Arrangement" shall mean any Benefit
Arrangement any Seller sponsors or maintains
or with respect to which any Seller has or
may have any current or future liability
(whether actual, contingent, with respect to
any of its assets or otherwise), in each case
with respect to any present or former
employees of the Business.
(ix) "Seller Benefit Plan" shall mean any Benefit Plan that any
Seller maintains or has previously maintained
or to which any Seller is obligated to make
payments or has or may have any liability, in
each case with respect to any present or
former employees of any Seller.
(b) Schedule 4.12, Employment Terms, describes the material
Benefit Plans and arrangements in connection with
the Business and the treatment of same in
connection with the transactions contemplated in
this Agreement.
(c) Dentsply has previously delivered to Buyer a list of
employees employed exclusively in connection with
the Business, including levels of compensation.
(d) No labor union or workers' council represents or has ever
represented the employees of the Business and no
collective bargaining agreement is or has been, to
the Sellers' knowledge, binding against Sellers in
connection with the Business. No grievance or
arbitration proceeding arising out of or under
collective bargaining agreements or employment
relationships is pending; and no claims therefore
exist or have, to the Sellers' knowledge, been
threatened; no labor strike, lock-out, slowdown,
or work stoppage is or has in the last five (5)
years been pending or, to the Sellers' knowledge,
threatened against the Business.
(e) Except as provided in Schedule 4.12, Employment Terms, or as
otherwise provided in Section 2.11, Buyer will
have no liability with respect to any Seller
Benefit Plan or Seller Benefit Arrangement.
(f) All group health plans of Dentsply and its ERISA Affiliates
comply and have complied with the requirements of
Part 6 of Title I of ERISA (COBRA).
(g) Each Foreign Plan (i) has been maintained in all material
respects in accordance with all applicable legal
requirements and with its terms; (ii) to the
extent it has qualified for special tax treatment,
meets all requirements for such treatment; and
(iii) if required to be registered, has been
registered with the appropriate authorities and
has been maintained in good standing with the
appropriate regulatory authorities.
(h) Sellers comply and have complied in all material respects
with all applicable domestic and foreign Laws
relating to employees of the Business respecting
employment and employment practices, terms and
conditions of employment and wages and hours, and
no claims, controversies, investigations, or suits
are pending or, to Sellers' knowledge, threatened
with respect to such Laws, either by private
individuals or by governmental agencies.
(i) With respect to the employees of the U.S. Business, no
Seller has effectuated in any way (i) a plant
closing as defined in the Worker Adjustment and
Retraining Notification Act of 1988, as amended
from time to time (the "WARN Act"), affecting any
site of employment or one or more operating units
within any site of employment of any Seller or
(ii) a mass layoff as defined in the WARN Act, nor
has any Seller been affected by any transaction or
engaged in layoffs or employment terminations
sufficient in number to trigger application of any
similar state or local Law. None of the employees
of the Business have suffered an employment loss
as defined in the WARN Act during the ninety-day
period prior to the Closing.
4.13 Litigation. Except as set forth on Schedule 4.13,
Litigation, there is no order, writ, injunction,
judgment or decree outstanding or claim, suit,
litigation or proceeding, pending or, so far as known
to Dentsply, threatened against, relating to or
affecting any Seller with respect to the Business or
the transactions contemplated by this Agreement, to the
extent any of the foregoing would, individually or in
the aggregate, be material to the Business. Except as
set forth on Schedule 4.13, no Product Liability Claims
involving amounts in excess of $100,000.00, if
adversely determined against the Business, have
occurred in the last three (3) years.
4.14 Compliance with Laws. The Business has been and is
currently conducted by Sellers without the violation of
any applicable Law in a manner which would,
individually or in the aggregate, materially affect the
Business and no claim has been alleged or, to Sellers'
knowledge, threatened, asserting Sellers' violation of,
Liability for, or potential responsibility in any
material respect, under any Law in connection with
Sellers operation of the Business. No Product has
experienced any safety or efficacy problems that would
materially change its approved indications as a result
of any adverse experience report received by Sellers,
and no material change in the labeling of any Product
has been required by any governmental or regulatory
body, or determined to be implemented by Sellers, as a
result of such an adverse experience report. There is
no pending, or to Sellers' knowledge, threatened notice
of non-compliance or impending regulatory action from
any USA or foreign Government Authority with respect to
the Assets, Products or the Business.
4.15 Product Warranties. The terms of Sellers' standard product
warranties and extended warranties sold by or on behalf
of Sellers relating to Products have been provided to
Buyer. Except as set forth therein or in Schedule
4.15, Sellers have made no express warranty with
respect to any Product. Schedule 4.15, Warranty,
reflects the warranty reserve maintained by Dentsply
for the Business as of the date reflected therein.
Such warranty reserve has been established in the
ordinary course of business and is consistent with the
historical warranty experience of the Business. To
Sellers' knowledge, (a) there are no statements,
citations or decisions by any Governmental Authority or
any product testing laboratory stating that any product
of the Business is unsafe or fails to meet any
applicable standards promulgated by such Governmental
Authority or testing laboratory, (b) there is no
material design, manufacturing or other defect in any
model of the Products, and (c) there is no pending or
threatened mandatory or voluntary product recalls with
respect to any Products and (d) there is no fact
relating to any Products that may impose a duty on
Sellers to recall any Product. Schedule 4.15 sets
forth a complete list of any product recalls relating
to the Products in the five (5) years prior to this
Agreement.
4.16 Receivables. The Third Party Receivables of the EU
Business ("EU Receivables") are valid and enforceable
claims against customers for goods or services
delivered or rendered in the ordinary course of
business consistent with past practice. No portion of
the EU Receivables is required or expected to be paid
to any Person other than a Seller. The EU Receivables
are current and collectible net of any reserves
specifically applicable thereto set forth on the Base
Financial Statement, determined in accordance with GAAP
consistently applied. There is no contest, claim, or
right of set-off, other than rebates and returns in the
ordinary course of business consistent with past
practice, under any Contract with any maker of an EU
Receivable relating to the amount or validity of such
EU Receivable.
4.17 Brokers. Except for UBS Securities LLC, Sellers have
not engaged the services of any person to represent
Sellers in the negotiation or conclusion of the
transactions contemplated hereby.
4.18 Complete Copies of Contracts. Dentsply made available
for inspection by Buyer true and complete copies of
each document referenced in the Schedules to this
Agreement, except for Excluded Assets.
4.19.Environmental Matters.
(a) "Environmental Laws" shall mean all federal,
state, local, and foreign Laws and common law
Liability, relating to pollution or protection of
human health or the environment, including, Laws
relating to indoor or outdoor releases or
threatened releases, importation, manufacture,
processing, use, treatment, storage, disposal,
transport, or handling of hazardous substances,
hazardous wastes, petroleum or petroleum
by-products, or pollutants or contaminants of any
kind.
............(b) Except as set forth on Schedule 4.19,
Environmental Matters, each Seller is and has been
in material compliance with all applicable
Environmental Laws with respect to the Business;
no Seller has received within the last three (3)
years and there are no pending communications
(written or oral) from a Governmental Authority
that alleges that Sellers are not in compliance
with Environmental Laws with respect to the
Business.
............(c) Except as set forth on Schedule 4.19, there is no
claim, action, cause of action, investigation, or
notice (written or oral) with respect to the
Business by any Governmental Authority or any
other person pending or, to Sellers' knowledge,
threatened, against Sellers or against any Person
whose Liability Sellers have retained or assumed
either contractually or by operation of law,
pursuant to any Environmental Law.
............(d) Except as set forth on Schedule 4.19, there is no
asbestos contained in or forming part of any
products of the Business currently or previously
manufactured, distributed or sold by Sellers.
............(e) Except as set forth on Schedule 4.19, to Sellers'
knowledge, there are no past or present actions,
activities, circumstances, conditions, events or
incidents with respect to the Business that
establish any Liability of any Seller or of any
Person whose Liability Sellers has retained or
assumed either contractually or by operation of
law, pursuant to any Environmental Law.
4.20.Real Property.
(a) Schedule 4.20, Real Property, lists: (i) a
description of each parcel of real property owned
by any of the Sellers which is used exclusively in
connection with the Business (the "Fee Real
Property"); (ii) each lease, whether oral or
written, of real property used exclusively in
connection with the Business under which any
Seller is a lessee, lessor, sublessee or
sublessor, as so designated therein (the "Leases"
and together with the Fee Real Property, the "Real
Property"); and (iii) all options to acquire, sell
or lease any real property interests exclusively
in connection with the Business to which any
Seller is a party ("Real Property Options").
(b) Except as set forth on Schedule 4.20, (i) all
Leases are valid, binding, in full force and
effect, free and clear of all Encumbrances, other
than non-monetary items which do not and will not
impair, in any material respect, the usefulness to
the Business; (ii) no written notice of default or
termination under the Leases has been received by
Sellers and no uncured default on the part of
Sellers exist thereunder; (iii) there are no
restrictions that prevent Sellers from their
continued use, occupancy and operation as used,
occupied and operated in connection with the
Business as currently conducted; (iv) Dentsply is
not a "foreign person" as that term is defined in
Section 1445 of the Code and any applicable
regulations promulgated thereunder; (v) Sellers
have not received notice from any municipal body
or other public authority requiring work to be
done or improvements to be made upon any of the
Real Property; (vi) there are no Persons other
than Sellers in possession of any Real Property
leased by Sellers or any portion thereof; (vii) no
condemnation or similar proceeding is pending or,
to Sellers' knowledge, threatened, that would
preclude or impair the use of any Real Property
leased by Sellers, or any portion thereof, for the
purposes for which it is currently used; (viii)
there is not under any Lease any default by
Sellers or, to Sellers' knowledge, any other party
to any Lease, or any condition, event or act which
would constitute such a default with the giving of
notice or the passage of time, or both.
4.21 Significant Customers and Suppliers.
(a) Schedule 4.21(a), Significant Customers and
Suppliers, sets forth (i) a true and correct
customer list showing the ten (10) largest third
party customers by gross purchases from the Gendex
Operating Units during the nine (9) month period
ended on the date of the Base Financial Statements
(individually, a "Significant Customer" and
collectively, the "Significant Customers"), and
(ii) a true and correct supplier list showing (A)
the ten (10) largest suppliers by gross sales to
the Gendex Operating Units during the nine (9)
month period ended on the date of the Base
Financial Statements and, (B) any sole source
Suppliers to the Business that are identified as a
Material Contract on Schedule 4.8(b) ("Significant
Supplier").
(b) Since January 1, 2003, no Significant Customer or
Significant Supplier has (whether as a result of
the transactions contemplated hereby or otherwise)
(i) stopped, or to Sellers' knowledge indicated an
intention to stop, trading with or supplying the
Business, (ii) notified Sellers that it is going
to materially reduce or discontinue business with
the Sellers, or (iii) materially changed or
notified Sellers that it is going to change the
basic terms on which it does or will do business
with Sellers in a manner which materially deviates
from the past course of conduct or dealings with
the Sellers.
4.22 Taxes.
(a) Definitions.
(i) "Tax" shall mean any tax or similar charge,
impost, or levy imposed by a Governmental
Authority, including, without limitation, any
federal, state, local, or foreign income,
gross receipts, license, payroll, employment,
excise, stamp, occupation, windfall profits,
customs duties, capital stock, franchise,
profits, withholding, social security (or
similar), unemployment, disability, real
property, personal property, sales, use,
registration, value added, alternative or
add-on minimum, estimated, or other tax of
any kind whatsoever, together with any
interest, penalties, fines, or additions
thereto, whether disputed or not.
(ii) "Tax Return" means any return (including
information return), report, statement,
schedule, notice, form, estimate or
declaration of estimated tax relating to or
required to be filed with any Governmental
Authority in connection with the
determination, assessment, collection or
payment of any Tax.
(b) Except as set forth on Schedule 4.22, Taxes:
(i) All Taxes owed by or with respect to the
Business due on or before the Closing Date
(whether or not shown on any Tax Return) have
been paid in full on a timely basis.
(ii) There are (and immediately following the
Closing there will be) no Encumbrances on the
Assets relating to or attributable to Taxes,
except for Taxes not yet due and payable.
Sellers have no knowledge of any basis for
the assertion of any Tax claims that, if
adversely determined, would result in a
material Encumbrance on the Assets or the
Business.
4.23 Bank Accounts; Powers of Attorney. Schedule 4.23 sets
forth a complete and accurate list of all bank
accounts, safe deposit boxes and lock boxes of any
Seller used primarily for the Business, including, with
respect to each such account and lock box, the names in
which such accounts or boxes are held. Schedule 4.23
also sets forth the name of each Person holding a
general or special power of attorney from any Seller
for use in connection with the Business and a
description of the terms of such power.
4.24 Backlog. All pending customer orders for the Business
were entered into in the ordinary course of business
consistent with past practice. No such customer orders
are at prices which, based on the past experience of
Sellers and current and anticipated costs, are or can
reasonably be expected to result in a material loss to
the Business.
4.25 Unlawful Payments. To Sellers' knowledge, neither
Sellers nor any director, officer, employee,
stockholder, agent or representative of (or any other
Person associated with or acting for or on behalf of)
Sellers, have directly or indirectly (i) made any
contribution, gift, bribe, rebate, payoff, influence
payment, kickback, or other payment to any Person,
private or public, regardless of what form, whether in
money, property, or services (A) to obtain favorable
treatment for the Business or to secure Contracts, (B)
to obtain special concessions or for special
concessions already obtained for the Business, or (C)
in violation of any legal requirement in connection
with the Business.
4.26 Absence of Claims; Business Relationships With Affiliates.
Except as set forth in Schedule 4.26, no Affiliate of
Dentsply as of Closing will have any claim or cause of
action against the Buyer or the Business and there are
no arrangements with any Affiliates related to the
Business the discontinuance of which would have,
individually or in the aggregate, a Material Adverse
Effect.
4.27 Books and Records. Sellers have made and kept business
records in the ordinary course of business (which might
include financial books and records, sales order files,
purchase order files, engineering order files, warranty
and repair files, supplier lists, customer lists,
dealer, representative and distributor lists, studies,
surveys, analyses, strategies, plans, forms, designs,
diagrams, drawings, specifications, technical data,
production and quality control records and
formulations) (collectively, "Books and Records") which
reflect the activities of the Business.
4.28 Trade Accounts Payable. The Trade Payables as shown in the
Base Financial Statements reflects the gross amount of
Third Party Payables due to non-affiliates for goods
and services provided, compiled in accordance with GAAP
as of the date of the Base Financial Statements.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as of the date of this
Agreement and Closing as follows:
5.1 Buyer's Organization, Power, Execution. Buyer is a
corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and
authority to execute, deliver and perform this
Agreement and carry out the transactions contemplated
hereby. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary
corporate action on the part of Buyer, and this
Agreement has been duly executed and delivered by Buyer
and constitutes a valid and legally binding obligation
of Buyer in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the
enforcement of creditors' rights in general or general
principles of equity.
5.2 Non-Violation. Subject to satisfying the requirements of
Hart-Scott-Rodino and similar applicable foreign laws,
the execution, delivery and performance by Buyer of
this Agreement and the consummation by Buyer of the
transactions contemplated hereby will not, with or
without the giving of notice or the passage of time,
(a) violate any law, ordinance, rule or regulation, or
any judgment, writ injunction or order of any court,
arbitrator or governmental, administrative or
self-regulatory authority, applicable to Buyer in any
manner which would materially adversely affect the
rights of any Seller under this Agreement, (b)
constitute a violation of or conflict with any
provision of the certificate of incorporation or
by-laws of Buyer, or (c) require the consent, approval,
permission or other authorization of or by or filing or
qualification with any court, arbitrator or
governmental, administrative or self-regulatory
authority, the failure of which to obtain would
materially adversely affect the rights of any Seller
under this Agreement.
5.3 Legal Proceedings. There is no legal proceeding or other
legal action pending or, to Buyer's knowledge,
threatened against Buyer that could prevent the
consummation of the transactions contemplated by this
Agreement or materially affect Buyer's ability to
perform its obligations under this Agreement or the
Ancillary Agreements.
5.4 Brokers. Buyer has not engaged the services of any person
to represent Buyer in the negotiation or conclusion of
the transactions contemplated hereby.
5.5 Cash Resources. Buyer has an amount of cash or readily
available financing which is sufficient to pay the
Purchase Price at Closing, as well as all Buyer-related
fees and expenses associated with such transaction.
ARTICLE VI - COVENANTS OF SELLER
Sellers covenant and agree as follows:
6.1 Conduct of the Business. Except as otherwise permitted by
this Agreement or consented to by Buyer in writing,
Sellers shall conduct the Business in the ordinary
course consistent with past practice. Without limiting
the foregoing, Sellers shall maintain the Assets in the
condition existing at the time of this Agreement
(ordinary wear and tear excepted), keep in full force
and effect its present insurance policies or other
comparable insurance coverage with respect to the
Business, comply with, and perform in all material
respects obligations under, all Scheduled Contracts,
all applicable Laws and all Permits related to the
Business and use commercially reasonable efforts
(payment of additional costs or liabilities outside the
ordinary course of business shall not be considered
reasonable) to preserve intact its present business
organization, to keep available the services of its
present employees, and to preserve its relationships
with customers, suppliers and others having business
dealings with it.
6.2 Certain Changes. Except as otherwise permitted by this
Agreement, consented to by Buyer in writing or
disclosed in the Schedules hereto between the signing
of this Agreement and the Closing, Sellers shall not:
(a) subject any of the Assets to any material
Encumbrance; (b) dispose of any of the Assets, or any
interest therein except in the ordinary course of
business consistent with past practice; (c) grant any
material increase in compensation or benefits to any
employee who will transfer to Buyer with the Business;
(d) breach, terminate or allow the expiration of, waive
any right under, or materially modify or amend, any
Scheduled Contract or Material Permit, except in
accordance with its terms; (e) make any capital
expenditure in connection with the Business in excess
of $100,000; or (f) take or agree to take (in writing
or otherwise) any other action which will prevent the
consummation of the transactions contemplated hereby or
materially diminish the value of the Business.
6.3 Access to Information. Sellers shall afford to the officers
and authorized representatives of Buyer access to, in
the form in which it is kept by Sellers for the normal
operation of the Business (i) all of the Assets
(including the Real Property) and Books and Records
related to the Business and (ii) such additional
financial and operating data and other information
relating to the Business as Buyer may from time to time
reasonably request, including access upon reasonable
request to the Business's employees, customers,
vendors, suppliers and creditors. Sellers shall
reasonably cooperate with Buyer, its representatives,
auditors and counsel in the preparation of any
documents or other material which may be required in
connection with this Agreement.
6.4 Exclusivity. Sellers shall, and shall direct their
respective officers, directors, employees,
representatives, agents and Affiliates, to, discontinue
and cease any existing discussions or negotiations, if
any, with any parties with respect to any purchase or
acquisition of all or a material portion of the Assets
related to the Business (each, an "Acquisition
Transaction"). Each Seller agrees that prior to the
earlier of the Closing or the termination of this
Agreement, it shall not, and shall not authorize or
permit any of its officers, directors, employees,
representatives, agents and Affiliates, directly or
indirectly to solicit, initiate or encourage, or
furnish or disclose information in furtherance of, any
inquiries or the making of any proposal with respect to
any Acquisition Transaction or negotiate, explore or
otherwise engage in substantive discussions with any
Person with respect to any Acquisition Transaction or
enter into any agreement, arrangement or understanding
requiring it to abandon, terminate or fail to
consummate any of the transactions contemplated by this
Agreement.
6.5 VAT Refund. Sellers shall provide to Buyer the benefit of
that portion of the VAT refund due from the
Governmental Authority in Italy to Italia (the "VAT
Refund"), and which is solely attributable to the
business operations of the EU Business located in
Cusano Milanino, Italy, as reflected in, and as of the
date of, the Deal Balance Sheet. As of that date, the
VAT Refund is equal to 1,987,818 Euro (the "VAT Refund
Amount"). In the event that after good faith efforts,
Buyer is unable to obtain the full benefit of the VAT
Refund Amount from the Governmental Authority in Italy
within the six month anniversary date of Closing,
Sellers shall pay to Buyer that portion of the VAT
Refund Amount that Buyer does not obtain from the
Governmental Authority in Italy (the "VAT
Differential"), up to a total amount of $2,315,808, and
Buyer shall assign all of its rights to its claims
against the Governmental Authority for such amounts to
the Sellers. In the event Buyer obtains the benefit of
any portion of the VAT Refund after receiving payment
of the VAT Differential from Sellers, Buyer covenants
and agrees to return to Sellers that amount of the VAT
Refund of which it obtains the benefit within 30 days
of Buyer's receipt of each such refund.
ARTICLE VII - OTHER AGREEMENTS
7.1 Books and Records. For a period of not less than three (3)
years from the Closing (plus any additional time during
which a party has been advised that there is a tax
audit with respect to a period prior to the Closing),
Buyer and Sellers shall each, at the request of the
other party, make available to such other party from
time to time on a reasonable basis, records and other
documents relating to the Business as kept in the
ordinary course of business. Copies of such records and
other documents shall be delivered to the other party
upon such other party's request at any time and at such
other party's out-of-pocket expense; provided, however,
that (a) all such access and copying shall be done in a
manner so as not to interfere unreasonably with the
normal conduct of the operations of the party requested
to provide the records or documents, and (b) the party
requesting the documents and records shall treat such
documents and records as confidential and not disclose
such records or the contents thereof to any other
person or entity except as required by applicable law
or as authorized in writing by the disclosing party.
In addition, after the Closing, at Dentsply's request
and to the extent reasonably possible, Buyer shall make
employees of the Business or their replacements
available to Dentsply in connection with any matters
related to activities of the Business prior to the
Closing as reasonably requested by Sellers, provided
that, Sellers shall reimburse Buyer for any
out-of-pocket costs associated with making such
employees available.
7.2 Bulk Sales Laws. Subject to all other terms of this
Agreement, Dentsply and Buyer each waive compliance
with any bulk sales laws applicable to the sale of the
Assets or the transfer of the Business to Buyer;
provided, however, that Sellers shall pay and discharge
when due any and all claims of creditors in existence
prior to Closing, which were not disclosed in any
Schedule and which could be asserted against Buyer by
reason of such non-compliance.
7.3 Allocation of Purchase Price and Tax Matters.
(a) The Purchase Price plus any Assumed Obligations, each to the
extent properly taken into account under Section
1060 of the Internal Revenue Code of 1986
("Code"), as amended, will be allocated generally
as agreed by the parties. Dentsply and Buyer agree
that they will adopt and utilize the amounts
allocated to each asset or class of assets as
agreed for purposes of all Tax Returns and reports
(including without limitation IRS Form 8594) filed
by each of them, and that each of them will not
voluntarily take any position inconsistent
therewith upon examination of any such Tax Return,
in any refund claim, in any litigation or
otherwise with respect to such income tax returns.
The parties and their Affiliates shall timely
file all forms and Tax Returns required to be
filed in connection with the Allocation.
(b) Buyer shall prepare an allocation of the Purchase Price
among the acquired assets in accordance with Code
and any similar provisions of state, local, or
foreign law, as appropriate. Buyer shall deliver
such allocation to Sellers within 60 days after
the Closing date. Sellers shall 30 days after
receiving such allocation from Buyer to review and
agree the allocation or to make amendments to the
allocation. Once agreed, the Buyer and Sellers
shall report, act and file tax returns in all
respects consistent with such allocation so agreed.
(c) Sellers shall timely pay all Taxes that relate to the Assets
or the Business and that were incurred in or are
attributable to any Tax period (or portion
thereof) ending on or before the Closing Date.
Sellers shall prepare and file all necessary Tax
Returns for the Business for all periods ending on
or before the Closing Date. Such returns will be
prepared and filed in accordance with applicable
Law and in a manner consistent with past
practices. Buyer shall timely pay all Taxes that
relate to the Assets or the Business and that were
incurred in or are attributable to any Tax period
(or portion thereof) ending on or after the
Closing Date. Buyer shall prepare and file all
necessary Tax Returns for the Business for all
periods ending on or after the Closing Date. Such
returns will be prepared and filed in accordance
with applicable Law.
7.4 No Implied Representations. Buyer and Sellers acknowledge
that, except as expressly set forth in this Agreement,
the Schedules, or in the agreements referenced herein,
neither Buyer nor Dentsply has made or is making any
oral or written representation or warranty to the
other, implied or otherwise.
7.5 Currency Exchange. For purposes of the financial
information referenced in this Agreement, the
translation of currency was calculated as follows: (i)
for income statement items, currency translations were
done using the actual average rates for the period
covered by the statement; and (ii) for balance sheet
items, currency translations were done using the spot
rate as of the balance sheet date.
7.6 Intercompany Effects. Dentsply has historically operated
the Business through operating units, divisions and/or
product lines of Intercompany Locations with corporate
parent provision of certain services. Because of
Sellers' intercompany structure, the financial
information, assets, liabilities, revenues, and
expenses of the Business are not necessarily indicative
of what would have occurred had the Business operated
as a stand-alone entity or of the future financial
position or results or operations of the Business.
Dentsply has provided information regarding support and
financial relationships affecting the Business because
of or resulting from these intercompany relationships.
This Section 7.6 is not intended to modify the
representations and warranties of Sellers set forth in
Section 4.
7.7 Cause Conditions to be Satisfied. Sellers shall use
commercially reasonable efforts to cause each of the
conditions set forth in Section 3.1 hereof to be
satisfied at or prior to the Closing. Buyer shall use
commercially reasonable efforts to cause each of the
conditions set forth in Section 3.2 hereof to be
satisfied at or prior to the Closing. Each party
hereto shall cooperate in obtaining all consents and
approvals required by Section 2.6(a)(x) (the obtaining
of which shall nonetheless be the responsibility of
Sellers).
7.8 Notification of Certain Matters. Each party hereto shall
give prompt notice to the other of the occurrence or
non-occurrence of any event the occurrence or
non-occurrence of which results in (i) any
representation or warranty contained herein to be
untrue or inaccurate in any material respect at or
prior to the Closing, or which, individually or in the
aggregate, results in a Material Adverse Effect and
(ii) any material failure of such party to comply with
or satisfy in a timely manner any covenant, condition
or agreement to be complied with or satisfied by such
party hereunder. The delivery of any notice pursuant
to this Section 7.8 shall not, without the express
written consent of the other party hereto (which
consent may be withheld in their respective sole
discretion) be deemed to (A) modify the
representations, warranties, covenants or agreements
hereunder of the party delivering such notice, or any
of the Schedules (B) modify any of the conditions set
forth in Article III, (C) cure or prevent any such
inaccuracy or failure, or (D) limit or otherwise affect
the remedies available hereunder or otherwise to the
party receiving such notice.
7.9 Transitional Services Agreement. Contemporaneously with the
execution of this Agreement, the parties shall execute
a Transitional Services Agreement in the form attached
as Exhibit 7.9.
ARTICLE VIII - TERMINATION
8.1 General Termination. This Agreement may be terminated at
any time prior to the Closing: (i) by the mutual
consent of Dentsply and Buyer; (ii) by Dentsply or
Buyer if any Governmental Authority of competent
jurisdiction shall have issued any judgment,
injunction, order or decree prohibiting, enjoining,
restraining or otherwise materially conditioning the
transactions contemplated hereby and such judgment,
injunction, order or decree shall have become final and
nonappealable; provided, however, that either party may
only exercise its right to terminate this Agreement
pursuant to this Section 8.1(ii) if it has used
commercially reasonable efforts to prevent and remove
such judgment, injunction, order or decree and it has
not been removed within one hundred twenty (120) days
of the date of this Agreement; (iii) by Dentsply or
Buyer if any statute, rule, regulation or executive
order promulgated or enacted by any Governmental
Authority of competent jurisdiction after the date of
this Agreement which prohibits the consummation of the
transactions contemplated hereby shall be in effect;
(iv) by Dentsply or Buyer, after the date which is one
hundred twenty (120) days after the date of this
Agreement, if any of the conditions to Closing
hereunder have not been fulfilled; provided, however,
Buyer shall not have the right to terminate this
Agreement pursuant to this Section 8.1(iv) if the
misrepresentation, inaccuracy or breach of any
representation or warranty made by Buyer, or Buyer's
default or failure to
fulfill any covenant or obligation, pursuant to this
Agreement has been the primary cause of, or resulted
in, the failure of the Closing to occur prior to the
expiration of such period, and provided, further,
Dentsply shall not have the right to terminate this
Agreement pursuant to this Section 8.1(iv) if the
misrepresentation, inaccuracy or breach of any
representation or warranty made by Sellers, or Sellers'
default or failure to fulfill any covenant or
obligation, pursuant to this Agreement has been the
primary cause of, or resulted in, the failure of the
Closing to occur prior to the expiration of such period.
8.2 Termination by Buyer. This Agreement may be terminated by
Buyer at any time prior to the Closing if Sellers shall
have failed to comply in any material respect with its
agreements herein and such failure shall be continuing,
provided that, Buyer shall give Sellers a reasonable
opportunity to cure any default hereunder, by the
payment of compensation (if the matter is reasonably
capable of rectification by that means) or by the
rectification of the matter before the Closing.
8.3 Termination by Seller. This Agreement may be terminated by
Dentsply at any time prior to the Closing if Buyer
shall have failed to comply in any material respect
with its agreements herein and such failure shall be
continuing, provided that, Dentsply shall give Buyer a
reasonable opportunity to cure any default hereunder,
by the payment of compensation (if the matter is
reasonably capable of rectification by that means) or
by the rectification of the matter before the Closing.
8.4 Effect of Termination. In the event of any termination of
this Agreement pursuant to Section 8.1, 8.2 or 8.3
hereof, this Agreement forthwith shall become void and
of no further force or effect, and no party hereto (or
any of its Affiliates, directors, officers, employees,
agents or representatives) shall have any liability or
obligation hereunder, except in any such case, in
accordance with (i) the provisions of this Section 8.4,
the payment of expenses provisions of Section 12.2, the
specific performance and remedies provisions of Section
12.6, the governing law and forum provisions of Section
12.7 and the publicity provisions of Section 12.9, each
of which shall survive any such termination and (ii)
for Damages arising from any breach by a party prior to
such termination, of any of its covenants contained in
this Agreement.
ARTICLE IX - INDEMNITIES
9.1 Indemnity Claims. With respect to the indemnities contained
in this Article IX: (i) the indemnitor shall indemnify
and hold harmless the indemnitee against and in respect
to all Damages which the indemnitee may incur, suffer,
sustain, pay or with which it may be faced arising out
of, in connection with or resulting from, directly or
indirectly, the subject matter of the indemnity; (ii)
if indemnitee receives notice or otherwise obtains
knowledge of any matter with respect to which
indemnitor may become obligated to hold harmless or
indemnify indemnitee under this Article then indemnitee
shall promptly deliver to indemnitor a written notice
describing such matter, provided that failure to
promptly deliver such notice shall not affect the
indemnification obligation except to the extent the
indemnitor is prejudiced or injured thereby, but in any
event shall deliver such notice prior to last day of
the survival period for the representation, warranty,
covenant or agreement that is the subject of that
claim, and indemnitor shall deliver a written response
within twenty (20) days of such notice from indemnitee
stating its position with respect to such claim for
indemnification; (iii) if such matter involves a claim
against indemnitee by a third party, indemnitor shall
have the right, at its option and upon advice to the
indemnitee, to assume the defense of such matter at its
own expense and with its own counsel, provided that
such counsel does not have an actual or potential
conflict of interest as determined by an opinion of
counsel who is not involved in such representation and
such counsel is acceptable to indemnitee on a
reasonable basis; (iv) if indemnitor elects to and does
assume the defense of such matter, (a) indemnitor shall
not be required to indemnify indemnitee against any
attorneys' fees or any other expenses incurred by
indemnitee in connection with such matter following
such assumption by indemnitor except as otherwise
provided herein, (b) indemnitee shall reasonably
cooperate as requested by indemnitor in the defense or
settlement of such matter, (c) indemnitor shall keep
indemnitee reasonably informed of developments and
events relating to such matter, (d) indemnitee shall
have the right to participate, at its own expense, in
the defense of such matter, (e) indemnitor shall
prosecute such matter to a final conclusion or
settlement; provided, that, unless indemnitee otherwise
agrees in writing, indemnitor may not settle any matter
(in whole or in part) unless such settlement (1)
includes a complete and unconditional release of
indemnitee in respect of such matter and (2) excludes
any injunctive or non-monetary relief applicable to
indemnitee or any of its Affiliates; (f) so long as
indemnitor is in good faith defending indemnitee in
such matter, indemnitee shall not settle or compromise
such matter, except as otherwise provided herein; (g)
in the event that (1) indemnitor does not assume or
relinquishes the defense of such matter to indemnitee
or (2) indemnitee notifies indemnitor that, in the
opinion of counsel who would not be retained by
indemnitee in such representation, there is an actual
conflict of interest between indemnitor and indemnitee
(except that the fact that one party is an indemnitor
and one party is an indemnitee shall not in and of
itself constitute a conflict of interest), indemnitee
shall have the right (but not the obligation) to defend
itself, or to enter into any settlement of such matter
in the indemnitee's reasonable discretion and such
actions by indemnitee shall not, by itself, prejudice
indemnitee's right to seek full indemnification for all
Damages incurred by indemnitee with respect thereto;
and in accordance with and as provided for by this
Agreement, and provided that such settlement does not
impose any material prospective injunctive relief
against the indemnitor; and (h) if at any time, in the
reasonable opinion of indemnitee, any such matter seeks
material prospective relief which could have a material
adverse effect on the assets, liabilities, financial
condition, results of operations or business prospects
of indemnitee or any of its Affiliates in connection
with the Business, indemnitee shall have the right to
control or assume (as the case may be) the defense of
such matter and, provided such assumption of and
prosecution of defense does not materially prejudice a
meritorious defense to any such action or claim, the
amount of any judgment or settlement and the reasonable
costs and expenses of defense may be included as part
of any claim by Buyer for indemnification hereunder,
provided, that, if indemnitee should elect to exercise
such right, indemnitor shall have the right to
participate in, but not control, the defense of such
matter or demand at the sole cost and expense of
indemnitor.
9.2 Indemnification by Sellers. Sellers jointly and
severally covenant and agree to indemnify, defend,
protect and hold harmless Buyer and its officers,
directors, employees, stockholders, representatives,
assigns, successors and Affiliates (the "Buyer
Indemnified Parties") from, against and in respect of:
(a) all Damages of any Buyer Indemnified Party in
connection with, resulting from or arising out of,
directly or indirectly: (i) any misrepresentation,
breach or inaccuracy of any representation or
warranty of Sellers set forth in this Agreement,
any Ancillary Agreement, or any Schedule hereto;
(ii) any nonfulfillment or breach of any covenant
or agreement on the part of Sellers set forth in
this Agreement, any Ancillary Agreement or any
Schedule hereto; (iii) Liabilities retained by
Sellers, including any Excluded Obligation; (iv)
any Liability of any Seller imposed upon Buyer
solely by reason of Buyer's status as transferee
of the Business or the Acquired Assets (other than
an Assumed Liability); (v) any Product Liability
Claims in connection with any products or services
manufactured, distributed, sold or performed by
Sellers in connection with the Business on or
prior to the Closing Date; (vi) any property
damage or any personal injury or death suffered by
any employee, consultant or contractor of Sellers
or any other Person, to the extent arising from
the
operations of the Business by Sellers prior to
Closing; or (vii) any Liabilities for warranty
claims or recall of products manufactured or sold
by Sellers or their Affiliates prior to Closing to
the extent such Liabilities exceed the product of
1.15 times the Warranty Reserve, net of any amount
realized by Buyer from reclamation, rework or
claims against suppliers, subject to the following
terms and conditions: (w) any such warranty claim
or recall action is handled in substantially the
same manner and consistent with the historic
policies and practices of Sellers, (x) does not
result from the Buyer altering or modifying a
decision with respect to a matter previously
handled by Sellers (except as may be required by
applicable law or regulation or by a Governmental
Authority, or as would be necessary to conform to
Seller's past practices), (y) Buyer provides
relevant information and documentation, upon
Sellers' reasonable request, with respect to any
such warranty claims or recalls, and (z) with
respect to any potential recall of a product,
Buyer shall first consult with Sellers and allow
Sellers a reasonable opportunity to analyze and
provide input with respect to any such
consideration. and
............(b) any and all Damages incident to any of the
foregoing or to the enforcement of this Section
9.2.
9.3 Indemnification by Buyer. Buyer covenants and agrees
to indemnify, defend, protect and hold harmless Sellers
and their officers, directors, employees, stockholders,
representatives, assigns, successors and Affiliates
(the "Seller Indemnified Parties") from, against and in
respect of:
(a) all Damages of any Seller Indemnified Party in
connection with, resulting from or arising out of,
directly or indirectly: (i) any misrepresentation,
breach or inaccuracy of any representation or
warranty of Buyer set forth in this Agreement, any
Ancillary Agreement or any Schedule hereto;
(ii) any nonfulfillment or breach of any covenant
or agreement on the part of Buyer set forth in
this Agreement, any Ancillary Agreement or any
Schedule hereto; (iii) any Assumed Obligation;
(iv) any Liability of Buyer and/or its Affiliates
imposed upon any Seller solely by reason of
Buyer's failure to perform in accordance with
Obligations assumed in accordance with this
Agreement (v) any Product Liability claims in
connection with any products manufactured or
services performed in connection with the Business
on or after the Closing Date; or (vi) any property
damage or any personal injury or death suffered by
any employee, consultant or contractor of Buyer or
any other Person, to the extent arising from the
operations of the Business by Buyer after Closing;
and
............(b) any and all Damages incident to any of the
foregoing or to the enforcement of this Section
9.3.
ARTICLE X - SURVIVAL; CLAIMS
10.1 Survival.
(a) The representations and warranties of Sellers shall survive
the Closing and shall expire on the applicable
date specified in clause (i), (ii), (iii) or (iv)
of this Section 10.1(a): (i) except as to
representations and warranties specified in clause
(ii), (iii) or (iv) of this Section 10.1(a),
eighteen (18) months from the Closing Date; (ii)
with respect to Sections 4.2 (authority, execution
and delivery), 4.11 (intellectual property) and
4.15 (product warranties), the second anniversary
of the Closing Date; (iii) with respect to Section
4.9 (assets), but only the second sentence of
Section 4.9, and other provisions relating to
Sellers quality of title to the Assets, the tenth
(10th) anniversary of the Closing Date; and (iv)
with respect to representations and warranties
contained in Sections 4.12 (employment matters),
4.19 (environmental matters) and 4.22 (taxes) on
the date that is (A) 90 days after the expiration
of the applicable federal, state, local or foreign
statute of limitations (including extensions
thereof), or (B) if there is no applicable statute
of limitations, five (5) years after the Closing
Date.
(b) The representations and warranties of Buyer shall survive
the Closing and shall expire on the applicable
date specified in clause (i) and (ii) of this
Section 10.1(b): (i) except as to representations
and warranties specified in clause (ii) of this
Section 10.1(b), eighteen (18) months from the
Closing Date; and (ii) with respect to Sections
5.1 (authority, execution and delivery), the
second anniversary of the Closing Date.
(c) All covenants of the parties made herein that are
to be performed in whole or in part after Closing
(including the obligations set forth in Sections
9.2 and 9.3) shall survive the Closing, continue
in effect and expire in accordance with their
respective terms (or if by their terms they have
no expiration they shall continue in perpetuity);
provided, that, in any event, any claim with
respect to a breach of covenant shall be asserted
no later than three (3) years after the discovery
of such breach by the party asserting a claim.
(d) Notwithstanding anything to the contrary herein,
(i) an indemnitee may make a claim hereunder for a
claim even where the indemnitee has not yet
suffered Damages or where the full amount of any
Damages is not yet known, provided the claim
notice sets forth the specific basis for any such
claim to the extent then feasible, and (ii) any
claim alleging any misrepresentation, breach or
inaccuracy of any representation or warranty, or
any nonfulfillment or breach of any covenant or
agreement, set forth in this Agreement or any
Schedule hereto, made prior to the expiration
period with respect to the applicable
representation, warranty, covenant or agreement,
shall survive the expiration of such
representation, warranty, covenant or agreement
until final resolution of such claim.
10.2.Limitation of Indemnification Obligations.
(a) There shall be no liability for indemnification
under Section 9.2(a)(i) unless the aggregate
amount of Damages thereunder exceeds $1,025,000
(the "Seller Indemnification Threshold"), at which
time Sellers will be obligated to indemnify the
Buyer Indemnified Parties with respect to the
aggregate amount of all such Damages described in
Section 9.2(a)(i) in excess of such Threshold;
provided, however, that the Seller Indemnification
Threshold shall not apply to the
misrepresentation, breach or inaccuracy of any
representation or warranty which breach arose from
an occurrence between the date of this Agreement
and the Closing Date or made by any Seller in any
of the following sections: Section 4.2 (authority,
execution and delivery), the second sentence of
Section 4.9 and other provisions of the Agreement
as it relates to Sellers quality of title to the
Assets and 4.22 (taxes).
(b) The indemnification obligations of Sellers under
Section 9.2(a)(i) shall be limited to
US$30,000,000 (the "Cap"); provided, however, any
determination of whether the indemnification
obligations of Sellers have met or exceeded the
Cap shall exclude any indemnification obligations
of Sellers in connection with the
misrepresentation, breach or inaccuracy of any
representation or warranty made by any Seller in
any of the following sections: Section 4.2
(authority, execution and delivery), the second
sentence of Section 4.9 and other provisions of
the Agreement as it relates to Sellers title to
the Assets and 4.22 (taxes).
(c) The indemnification obligations of Buyer under
Section 9.3(a)(i) shall be limited to the Cap;
provided, however, any determination of whether
the indemnification obligations of Buyer have met
or exceeded the Cap shall exclude any
indemnification obligations of Buyer in connection
with the misrepresentation, breach or inaccuracy
of any representation or warranty made by Buyer in
Section 5.2 (authority, execution and delivery).
10.3 Determination of Damages.
(a) In any determination of whether Seller has breached
representations, warranties and/or agreements and
the amount of Damages for any breaches of
representations, warranties and/or agreements,
Buyer shall be charged with knowledge of the facts
disclosed to Buyer during its investigation of the
Assets and the Business to the extent apparent on
the face of the items set forth in Schedule 10.3
of this Agreement.
(b) Any Damages awarded in connection with this Agreement shall
be reduced to the extent such Damages result from
(i) a failure by the Person suffering such Damages
to mitigate its Damages and (ii) any change after
the Closing in any Law, including a retroactive
change in Tax rates.
(c) Indemnification of any indemnitee pursuant to Section 9.2 or
Section 9.3 hereof shall be (i) reduced by the
amount of any Tax benefit to the relevant
indemnitee, (ii) increased to take into account
any Tax cost incurred by the relevant indemnitee
(unless such indemnity payment is treated as an
adjustment to the Purchase Price for Tax purposes)
and (iii) limited to the amount of any Damages
that remain after deducting therefrom any
insurance or other proceeds actually recovered by
the relevant indemnitee or any of its Affiliates
from any third party with respect thereto. The
parties hereto shall treat all payments under
Article IX (as limited by this Article X) as an
adjustment to the Purchase Price hereunder, unless
a final determination (within the meaning of
Section 1313 of the Code) causes any such payment
not to be treated as an adjustment.
10.4 Exclusivity of Remedies. Except for any equitable
remedies to which the parties may be entitled, the
parties' remedies for breach of the representations,
warranties and agreements herein contained and all
other rights and remedies of the parties for breach of
this Agreement or in connection with any dispute
arising under this Agreement or the transactions
contemplated hereby or arising out of or relating to
the Assets or the Business as heretofore or hereafter
conducted or as existing at Closing shall be
exclusively governed by the terms of this Agreement;
provided, however, that no party hereto shall be deemed
to have waived any rights, claims, causes of action or
remedies if and to the extent such rights, claims,
causes of action or remedies may not be waived under
applicable law or if actual fraud or intentional
misrepresentation is proven on the part of a party by
another party hereto.
ARTICLE XI - CONFIDENTIALITY
11.1 Confidentiality. Sellers recognize that by reason of their
ownership of the Business and the Assets prior to the
Closing, it has Confidential Information with respect
to the Business, the use or disclosure of which after
Closing could cause Buyer or its Affiliates or
subsidiaries substantial loss and damages that could
not be readily calculated and for which no remedy at
law would be adequate. Accordingly, Sellers covenant
and agree with Buyer that for a period of five (5)
years after Closing they will not at any time, except
in performance of their obligations to Buyer, directly
or indirectly, use, disclose or publish, or permit
other Persons (including its Affiliates) to disclose or
publish, any Confidential Information, unless (i) such
information becomes known publicly through no fault of
Sellers, (ii) the disclosing party is advised in
writing by counsel that disclosure is required by Law
or the order of any Governmental Authority of competent
jurisdiction under color of Law, (iii) the disclosing
party reasonably believes that such disclosure is
required in connection with the defense of a lawsuit
against the disclosing party; or (iv) is disclosed by
Buyer to a third party without a restriction of
confidentiality; provided, that prior to disclosing any
information pursuant to clause (ii) above, such Person
shall give prior written notice thereof to Buyer and
provide Buyer with the opportunity to contest such
disclosure and shall cooperate with efforts to prevent
such disclosure.
11.2 Reasonable Restraint. The parties agree that the foregoing
covenants in this Article XI impose a reasonable
restraint on Sellers in light of the activities and
operations of the Business and Buyer and its Affiliates
on the date of the execution of this Agreement.
11.3 Severability; Reformation. The covenants in this Article XI
are severable and separate, and the unenforceability of
any specific covenant shall not affect the provisions
of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that
the scope, time or territorial restrictions set forth
are unreasonable, then it is the intention of the
parties that such restrictions be enforced to the
fullest extent which the court deems reasonable, and
the Agreement shall thereby be reformed.
11.4 Materiality. The parties hereto hereby agree that the
covenants set forth in this Article XI are a material
and substantial part of the transactions contemplated
by this Agreement, supported by adequate consideration.
ARTICLE XII - MISCELLANEOUS
12.1 Cooperation. The parties recognize that in order for
control of the Business to pass from Sellers to Buyer
in an orderly manner at and after the Closing, it will
be necessary for the parties to cooperate before and
after the Closing on such matters as the transition of
Sellers personnel to Buyer, integration of sales force
activity, identification of the Assets, ordering of
inventory, product returns, transitional packaging,
collection of receivables, preservation of
relationships with customers, suppliers and
distributors and the transfer of intellectual property
rights. The parties shall render such cooperation to
one another with respect to such matters and with
respect to such other aspects of the transfer of the
Business as reason and commercial prudence dictate. In
particular, in the event that a claim is asserted prior
to or following the Closing against Buyer or Sellers or
any of their subsidiaries or Affiliates with respect to
the operation of the Business prior to the Closing or
any of the transactions contemplated pursuant to this
Agreement, the other party agrees to cooperate with the
party in the defense of such claim, at such party's
sole cost (except to the extent such expenses are
covered pursuant to Article IX); provided that the
party shall not be responsible for reimbursing the
other party or its officers, directors, employees and
agents, for their time spent in such cooperation. The
parties shall consult with each other regarding the
defense of any proceedings or litigation relating to
any of the transactions contemplated pursuant to this
Agreement.
12.2 Payment of Expenses. Except as specifically set forth
elsewhere in this Agreement, expenses related to this
Agreement and the transactions contemplated hereby,
including the fees of counsel, accountants, brokers,
finders and financial advisors shall be borne by the
party incurring such expenses.
12.3 Modifications; Waivers. This Agreement may be modified
and rights hereunder may be waived only by a writing
executed and delivered on behalf of the party against
whom such modification or waiver is asserted. No
failure or delay on the part of the parties hereto to
exercise any right, power or privilege hereunder or
under any instrument executed pursuant hereto shall
operate as a waiver; nor shall any single or partial
exercise of any right, power or privilege preclude any
other or further exercise thereof or the exercise of
any other right, power or privilege. All rights and
remedies granted herein shall be in addition to other
rights and remedies to which the parties may be
entitled at law or in equity except or otherwise
expressly provided herein.
12.4 Successor/Assignability. This Agreement and the rights
and obligations hereunder shall be binding upon and
inure to the benefit of the parties hereto and their
respective successors (including successors by
operation of law) and legal representatives. This
Agreement shall not be assignable, except that either
party may assign its rights and obligations hereunder
in whole or in part to an Affiliate of such party,
provided that such party and its Affiliate shall be
jointly and severally liable for the performance of
such party's obligations hereunder.
12.5 Dispute Resolution. The negotiations of the parties
have focused primarily in the USA and on the ordinary
meaning and legal effect of the provisions of this
Agreement in the USA and not on the meanings or legal
effects those provisions might have in other
countries. In order to minimize the possibility of an
unexpected reordering of agreed rights and obligations,
the parties have included herein the Sections Governing
Law and Arbitration. Consequently, except as
contemplated pursuant to Section 12.6, the parties
shall not permit their Affiliates to initiate or
participate in any legal proceedings in connection with
any controversy or claim arising out of or relating to
this Agreement or the transactions contemplated hereby;
rather, the parties shall settle all such controversies
or claims on behalf of their Affiliates as set forth in
the Sections captioned Governing Law and Arbitration.
The parties shall cause their Affiliates to comply with
any applicable award rendered in an arbitration
proceeding pursuant hereto.
12.6 Specific Performance; Remedies. The Sellers and Buyer
acknowledge that the other party will be irreparably
harmed and that there will be no adequate remedy at law
for any violation by any party of any of the covenants
or agreements contained in this Agreement, including
the noncompetition and confidentiality obligations set
forth in Article XI. It is accordingly agreed that, in
addition to any other remedies which may be available
upon the breach of any such covenants or agreements,
each party hereto shall have the right to injunctive
relief to restrain a breach or threatened breach of, or
otherwise to obtain specific performance of, the other
party's covenants and agreements contained in this
Agreement.
12.7 Governing Law. This Agreement and the transactions
contemplated hereby shall be governed by and construed
in accordance with the laws of the State of Delaware,
USA, applicable to agreements made and to be performed
entirely within such State, without regard to the
conflicts of laws principles of such State. In the
event that a dispute, claim or controversy relating to,
arising out of, or in connection with this Agreement is
not the subject of a claim for specific performance
pursuant to Section 12.6 or arbitrable pursuant to
Section 12.8 of this Agreement, such dispute, claim or
controversy shall be subject to the exclusive
jurisdiction of the Delaware courts and no others. The
parties hereby consent to the jurisdiction of the above
designated courts and to the service of process by
registered mail, return receipt requested, or by any
other manner provided by the laws of the State of
Delaware.
12.8 Arbitration. Except as set forth in Sections 2.3 and
12.6, any dispute or claim relating to this Agreement,
any Ancillary Agreement or document executed in
connection with this Agreement, or any amendment of any
of the foregoing, including, without limitation, as to
their existence, validity, enforceability,
interpretation, performance, breach or damages,
including claims in tort, whether arising before or
after the termination of this Agreement, shall be
settled only by binding arbitration pursuant to the
Commercial Arbitration Rules of the American
Arbitration Association ("Rules"); provided, however,
that: (a) the arbitration shall take place in
Wilmington, Delaware; (b) there shall be a panel of
three (3) arbitrators who shall be selected under the
normal procedures prescribed in the Rules; (c) subject
to legal privileges, each party shall be entitled to
discovery in accordance with the Federal Rules of Civil
Procedure; (d) at the arbitration hearing, each party
may make written and oral presentations to the
arbitrators, present testimony and written evidence and
examine witnesses; (e) the arbitrators shall be
authorized to award all or any portion of the legal
fees relating to the proceeding to the prevailing
party, provided the arbitrators shall not have the
power to award punitive damages; (f) the arbitrators
shall issue a written decision explaining the bases for
such decision; (g) such decision shall be final,
binding and enforceable in any court of competent
jurisdiction; (h) Buyer and Sellers shall share any
fees and expenses of the arbitrators and of the
American Arbitration Association as the arbitrators
determine to be appropriate under the circumstances;
and (i) Dentsply shall represent the interest of all
Sellers in any dispute and Sellers collectively shall
be considered one party to such arbitration. The
proceeding shall be confidential and the arbitrators
shall issue appropriate protective orders to safeguard
both parties' confidential information. Such
protective orders shall be enforceable by any court or
competent jurisdiction.
12.9 Publicity. Except for a press release approved by the
parties at, prior to or after the Closing, or as may be
required by Law or legal authorities, neither Sellers
nor Buyer or their Affiliates shall release, generate
or permit any publicity concerning this Agreement or
the transactions contemplated hereby without the prior
express consent of the other, which consent shall not
be unreasonably withheld or delayed. If disclosure is
required by Law or legal requirements, the other party
shall be advised prior to, and shall be provided a copy
or summary of, any such disclosure.
12.10Notices. Any notice, request, instruction or other
communication to be given by either party to the other
party in connection with this Agreement or the
transactions contemplated hereby shall be in writing
and delivered by hand delivery, recognized courier
service or confirmed telefax, to the address of such
party set forth below or as changed by such party by
notice given hereunder. Notice sent by telefax shall be
effective when sent and by other delivery methods upon
receipt.
Seller: DENTSPLY International Inc.
..... 570 W. College Avenue
..... York, PA 17404
..... Attention: Secretary
..... Fax: (717) 849-4753
Buyer: DAS Equipment Company
..... c/o Danaher Corporation
..... 2099 Pennsylvania Avenue, 12th Floor
..... Washington, D.C. 20006-1813
..... Attention: Paul Burgon, Director - Corporate
Development
..... Fax: (202) 419-7668
.....With a copy to:
..... Wilmer, Cutler & Pickering
..... 2445 M Street, N.W.
..... Washington, D.C. 20037
..... Attn: Mark Dewire and Eric Markus
..... Fax: (202) 663-6363
12.11Captions; Mutual Product. The Section captions, Table
of Contents and Index used in this Agreement are for
cross-reference purposes only and shall not affect in
any way the meaning or interpretation of this
Agreement. The parties acknowledge that this Agreement
is a product of consultation, negotiation and agreement
between sophisticated and knowledgeable parties, and it
shall not be construed for or against any party thereto.
12.12 Further Representations. Each party to this Agreement
acknowledges and represents that it has been
represented by its own legal counsel in connection with
the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights
from such counsel. Each party further represents that
it is being independently advised as to the tax
consequences of the transactions contemplated by this
Agreement and is not relying on any representation or
statements made by any other party as to such tax
consequences.
12.13Counterparts. This Agreement may be executed in two
(2) or more counterparts, including telefax signatures,
each of which shall be deemed to be an original and all
of which shall be deemed to constitute the same
Agreement.
12.14No Third Party Beneficiaries. Except as specifically
provided in this Agreement and for the Buyer
Indemnified Parties and the Seller Indemnified Parties,
this Agreement is not intended to confer upon any
Person other than the parties hereto any rights or
remedies hereunder.
12.15 Right to Set Off. Each Buyer Indemnified Party shall have
the right, but not the obligation, to set off, in whole
or in part, against any obligation it owes to Sellers,
amounts owed to any Buyer Indemnified Party by Sellers
pursuant to this Agreement. Each Seller Indemnified
Party shall have the right, but not the obligation, to
set off, in whole or in part, against any obligation it
owes to Buyer, amounts owed to any Seller Indemnified
Party by Buyer pursuant to this Agreement.
12.16 Entire Agreement. Before signing this Agreement, the
parties had numerous conversations, including
preliminary discussions, formal negotiations and
informal conversations, and generated correspondence
and other writings in which the parties discussed the
transactions contemplated hereby and their aspirations
for success. In such conversations and writings,
individuals representing the parties may have expressed
their judgments and beliefs concerning the intentions,
capabilities and practices of the parties, and may have
forecasted future events. The parties recognize that
such conversations and writings often involve an effort
by both sides to be positive and optimistic about
future prospects. However, it is also recognized that
all business transactions contain an element of risk,
as do the transactions contemplated hereby, and that it
is normal business practice to limit the legal
obligations of contracting parties to only those
promises and representations which are essential to
their transactions so as to provide certainty as to
their respective future rights and remedies.
Accordingly, this Agreement and all other agreements
contemplated hereby are intended to define the full
extent of the legally enforceable undertaking of the
parties hereto, and no promise or representation,
written or oral, which is not set forth explicitly in
this Agreement,
is intended by either party to be legally binding. Both
parties acknowledge that in deciding to enter into this
Agreement and to consummate the transactions
contemplated hereby, neither has relied upon any
statements or representations, written or oral, other
than those explicitly set forth in this Agreement.
Each of the Schedule is incorporated herein by this
reference and expressly made a part hereof.
12.17 Usage. The defined terms herein shall apply equally to both
the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and
neuter forms. All references herein to "Articles",
"Sections" and "Schedules" shall be deemed to be
references to Articles and Sections of and Schedules
to, this Agreement unless the context shall otherwise
require. All Schedules attached hereto shall be deemed
incorporated herein as if set forth in full herein and,
unless otherwise defined therein, all terms used in any
Schedules shall have the meaning ascribed to such term
in this Agreement. The words "Sellers' knowledge,"
"knowledge of Sellers," "known to Sellers" or words or
similar import, mean the knowledge of any officer of
the Sellers, any Gendex Management Employees, Jean
Michel Blanchard or Gloria McFadden. The use of the
word Sellers shall be limited to and refer to the
specific Seller which is applicable to the context
used. Whenever any payment hereunder is to be paid in
"cash," payment shall be made in the legal tender of
the United States and the method for payment shall be
by wire transfer of immediately available funds. The
words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular
provision of this Agreement. The words "include,"
"includes" and "including" shall be deemed to be
followed by the phrase "without limitation." Unless
otherwise expressly provided herein, any agreement,
instrument or statute defined or referred to herein or
in any agreement or instrument that is referred to
herein means such agreement, instrument or statute as
from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by
waiver or consent and (in the case of statutes) by
succession of comparable successor statutes and
references to all attachments thereto and instruments
incorporated therein.
12.18 Guarantees.
(a) It is understood that it is the intention of the
Sellers that any of the assets owned by Dentsply,
Ceramco and DRDC are or will be owned by PDEX at
Closing and will be transferred to the Buyer from
PDEX. Notwithstanding anything in this Agreement
to the contrary, to the extent performance of any
Seller is required and such Seller fails in such
performance, Dentsply hereby unconditionally and
irrevocably guarantees to Buyer the due and
punctual performance of the obligations of any
Seller under this Agreement. This is an absolute
and continuing guaranty of payment by Dentsply of
all of Sellers' obligations hereunder, and not of
their collectibility only. Notwithstanding
anything to the contrary, the failure of any
Seller to perform any act required of it under
this Purchase Agreement when due shall entitle
Buyer to proceed directly against Dentsply without
proceeding further against such Seller or any
other person and without enforcing or applying any
security for such guaranteed obligation or
otherwise any right or remedy against such Seller.
(THIS SPACE INTENTIONALLY LEFT BLANK)
SIGNATURES ON FOLLOWING PAGE
SIGNATURE PAGE
IN WITNESS WHEREOF, Buyer and Sellers have each caused this
Agreement to be duly executed in its corporate name by a duly
authorized representative as of the date first above written.
DAS EQUIPMENT COMPANY DENTSPLY INTERNATIONAL INC.
By:__________________________
By:__________________________
Name:_______________________
Name:_______________________
Title:________________________
Title:________________________
DENTSPLY DETREY GmbH DENTSPLY ITALIA S.r.l.
By:__________________________
By:__________________________
Name:_______________________
Name:_______________________
Title:________________________
Title:________________________
DENTSPLY RESEARCH PDEX ACQUISITION CORP.
& DEVELOPMENT CORP.
By:__________________________
By:__________________________
Name:_______________________
Name:_______________________
Title:________________________
Title:________________________
CERAMCO INC. DENTSPLY FRANCE S.A.S.
By:__________________________
By:__________________________
Name:_______________________
Name:_______________________
Title:________________________
Title:________________________