EXHIBIT 10.1 TO FORM 8-K
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
between
BISSELL HEALTHCARE CORPORATION
as Buyer
and
LANDEC CORPORATION
as Seller
August 28, 1997
TABLE OF CONTENTS
Page
----
ARTICLE 1. SALE AND PURCHASE OF ASSETS........................................1
1.1 Agreement to Sell Assets..........................................1
1.2 License Agreement.................................................2
1.3 Purchase Price....................................................2
1.4 Allocation of the Purchase Price..................................2
1.5 Transition........................................................2
1.6 Transfer Taxes....................................................4
ARTICLE 2 REPRESENTATIONS, COVENANTS AND WARRANTIES OF SELLER..................4
2.1 Organization and Standing of Seller...............................4
2.2 Authorization and Enforceability..................................4
2.3 Machinery and Equipment; Manufacturing Process....................4
2.4 Litigation........................................................4
2.5 Financial Information.............................................5
2.6 No Conflict with Other Instruments or Proceedings.................5
2.7 Contracts.........................................................5
2.8 Intellectual Property.............................................5
2.9 Brokers' Fees.....................................................6
2.10 Product Warranties...............................................6
2.11 Permits and Licenses.............................................6
2.12 Compliance with Law and Other Regulations........................6
2.13 Accuracy of Statements...........................................6
ARTICLE 3 REPRESENTATIONS, COVENANTS AND WARRANTIES OF BUYER...................7
3.1 Organization and Standing of Buyer................................7
3.2 Authorization and Enforceability..................................7
3.3 Brokers' Fees.....................................................7
ARTICLE 4 CLOSING.............................................................7
4.1 Closing...........................................................7
4.2 Obligations of Seller.............................................7
4.3 Obligations of Buyer..............................................8
4.4 Further Documents or Necessary Action.............................8
ARTICLE 5 INDEMNIFICATION.....................................................8
5.1 Indemnification by Seller.........................................8
5.2 Indemnification by Buyer..........................................9
ARTICLE 6 GENERAL............................................................11
6.1 Survival of Representations, Warranties..........................11
6.2 Binding Effect; Benefits; Assignment.............................11
6.3 Definition of "Knowledge".......................................11
6.4 Governing Law....................................................11
6.5 Public Disclosure................................................11
6.6 Notices..........................................................12
6.7 Counterparts.....................................................12
6.8 Expenses.........................................................13
6.9 Entire Agreement.................................................13
6.10 Amendment and Waiver............................................13
6.11 Severability....................................................13
6.12 Headings........................................................13
6.13 Limitation of Liability.........................................13
EXHIBITS
1.1(a) Description of Inventory
1.1(b) Machinery and Equipment
1.1(c) Contracts to be Assumed
1.1(d) Trademarks
1.2 Form of License Agreement
1.5 Form of Supply Agreement
4.2(c) Form of Opinion of Counsel for Seller
4.3(b) Form of Opinion of Counsel for Buyer
-ii-
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made as of the 28th day
of August, 1997, by and between BISSELL HEALTHCARE CORPORATION, a Michigan
corporation, d/b/a SAMMONS(TM) PRESTON with offices located at 4 Sammons Court,
Bolingbrook, Illinois 60440-4989 ("Buyer"), and LANDEC CORPORATION, a California
corporation with offices located at 3603 Haven Avenue, Menlo Park, California
94025-1010 ("Seller").
PREAMBLE
Seller is engaged, among other things, in the manufacture, distribution and
sale of QuickCast(R) casting and splinting products (the "Products") using
patented technology owned by Seller. Buyer desires to purchase from Seller and
Seller desires to sell to Buyer certain of the assets associated with such
business in accordance with the terms and subject to the conditions set forth in
this Agreement. The manufacture, distribution and sale of the Products is
hereinafter referred to as the "Business."
ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1.
SALE AND PURCHASE OF ASSETS
Section 1.1 Agreement to Sell Assets. On the terms and subject to the
conditions of this Agreement, Seller agrees to sell to Buyer and Buyer agrees to
purchase from Seller the following assets (the "Purchased Assets"), free and
clear of any and all security interests, liens, encumbrances, or adverse claims
whatsoever:
(a) all inventories of raw materials, work in process, finished goods,
packaging and supplies owned by Seller, wherever located, used or intended for
use in the Business as described as of July 31, 1997, on Exhibit 1.1(a)
("Inventories");
(b) all machinery and equipment, including dies, molds, jigs, racks and
tools, owned or leased by Seller and used in the Business, as described in
Exhibit 1.1(b) ("Machinery and Equipment");
(c) all rights under the contracts relating to the Products or the Business
identified in Exhibit 1.1(c) hereof ("Contracts"):
(d) the registered trademark "QuickCast(R)," United States Trademark
Registration No. 1,947,779 and No. 1,898,779 and the other trademarks, trade
names and trade dress used by Seller in connection with the Business as
described in Exhibit 1.1(d) and the goodwill associated therewith (the "Marks");
and
(e) all customer lists, product literature, advertising materials,
graphics, art work, processes, manufacturing drawings, product designs,
patterns, and design work directly relating to the Products or the Business.
Section 1.2 License Agreement. Seller shall grant Buyer the exclusive right
to the patents, technology, copyrights, trade secrets and knowhow associated
with the Products for all [****] applications (the "Licensed Technology"), by
execution and delivery at Closing of the license agreement (the "License
Agreement") in the form attached hereto as Exhibit 1.2.
Section 1.3 Purchase Price. In consideration of the transfer of the
Purchased Assets to Buyer, Buyer agrees to pay Seller the sum of Nine Hundred
Fifty Thousand Dollars ($950,000)(the "Purchase Price"), plus the license fee
set forth in the License Agreement (the "License Fee"). The Purchase Price,
other than the License Fee, shall be payable by wire transfer of immediately
available funds at the Closing, as such term is defined in Section 4.1 hereof.
Except for the obligations from and after the Closing Date under the contracts
referred to in Section 1.1(c) above and the sales and use tax obligations
referred to in Section 1.6, the Buyer shall assume no liabilities of Seller
whatsoever.
Section 1.4 Allocation of the Purchase Price. The purchase price shall be
allocated to the various assets being purchased, as follows:
(a) Inventories - the sum of [****] Dollars ($[****]).
(b) Machinery and Equipment - the sum of [****] Dollars ($[****]).
(c) The Marks, customer lists, product literature, advertising materials,
graphics, art work, processes, manufacturing drawings, product designs,
patterns, and design work and the goodwill associated with the Business [the sum
of [****] Dollars ($[****]).
Seller shall retain title to the Inventories and the Machinery and Equipment
until delivered to Buyer at Buyer's plant or other location designated by Buyer.
Buyer shall pay all shipping costs and assume risk of loss when placed on common
carrier at Seller's plant.
Section 1.5 Transition.
(a) Supply Agreement. Seller will manufacture finished Products for Buyer
for a period of up to three (3) months following Closing and will manufacture
laminated fabric for up to an additional three (3) months, pending transfer of
the Business to a location selected by Buyer, all in accordance with the Supply
Agreement in the form attached hereto as Exhibit 15. Upon Closing, all
inventories of finished goods shall be shipped to Buyer's location, or other
locations designated by Buyer. During the term of the Supply Agreement, all
usable inventories of work in process or raw materials shipped to Buyer shall be
recorded and at the conclusion of the Supply Arrangement, all remaining usable
inventories of work in process and raw materials shall be inventoried and
shipped to Buyer. To the extent the value of the usable raw materials
-2-
and work in process shipped to Buyer during the term or upon termination of the
Supply Agreement, valued in accordance with Section 1.4(a) above, is in excess
of the value as of the Closing, Buyer shall pay Seller the amount of such
excess. To the extent the value of the usable raw materials and work in process
shipped to Buyer during the term or upon termination of the Supply Agreement is
less than the value as of the Closing, Seller shall promptly pay Buyer the
amount by which the value is less than the value as of the Closing Date. Amounts
due from either party under this provision shall be paid within thirty (30) days
of the expiration of the Supply Agreement.
(b) Transition and Relocation and Costs. Buyer shall pay all its costs
relating to the transition and relocation of the Business, including, but not
limited to:
(1) Removal, shipping and installation of the manufacturing equipment,
including modifications to new manufacturing location;
(2) Removal and shipping of inventory;
(3) Recruiting and training of workforce and startup of relocated
manufacturing;
(4) Modification of packaging and advertising materials to reflect
change of ownership; and
(5) Sales taxes and registration and transfer fees and expenses.
Seller will cooperate with Buyer to help minimize such costs.
(c) Technical Assistance.
(1) During the six months following Closing, Seller shall provide a
total of [****] of free technical assistance and training. Seller will make the
manufacturing operations manager and machine operator available at both Seller's
facility and Buyer's facility for a maximum of [****]. Seller shall provide the
remaining worker days for sales, marketing and customer service training. Buyer
shall reimburse Seller for all travel expenses of such personnel of Seller
incurred to provide such assistance and training at locations other than
Seller's plant.
(2) During the six months following Closing and following the provision
of the free technical assistance and training set forth in subparagraph (1)
above, Seller shall provide additional technical assistance as may requested by
Buyer from time to time. Buyer shall reimburse Seller for all travel and lodging
expenses of such personnel of Seller and reimburse Seller at [****] of such
employee's June 30, 1997 wages for such personnel for such period as they are
providing technical assistance to Buyer. Seller agrees to use reasonable efforts
to make its personnel available to Buyer at the times and to provide the
assistance requested.
-3-
Section 1.6 Transfer Taxes. Buyer shall be responsible for paying and shall
promptly discharge when due, and shall indemnify and hold harmless Seller from
(a) any sales or use taxes or (b) any other transfer or similar taxes imposed by
states other than the State of California on or attributable to the transfer of
the Purchased Assets. Seller shall be responsible for any transfer or similar
taxes (other than sales or use taxes) imposed by the State of California.
ARTICLE 2
REPRESENTATIONS, COVENANTS AND WARRANTIES OF SELLER
Seller represents, covenants and warrants to Buyer as follows:
Section 2.1 Organization and Standing of Seller. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California.
Section 2.2 Authorization and Enforceability. Seller has full capacity,
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby and this Agreement is binding upon Seller and
is enforceable against Seller in accordance with its terms.
Section 2.3 Machinery and Equipment; Manufacturing Process. Exhibit 1.1(b)
hereto describes all machinery and equipment owned or leased by Seller used or
intended for use in connection with the Business. Except as set forth on Exhibit
1.1(b), Seller has good and marketable title to all of such machinery and
equipment, free and clear of all claims, liens, security interests, encumbrances
or other restrictions. Exhibit 1.1(b) describes all machinery and equipment used
or intended for use by Seller in connection with the Business but not owned or
leased by Seller and all machinery and equipment owned or leased by Seller used
or intended for use by Seller in connection with the Business but not in the
possession of Seller and, in the latter case, a description of where such
property is now located. The machinery and equipment (whether owned or leased)
of Seller are in good and operable condition and repair, normal wear and tear
excepted. The machinery and equipment is all the machinery and equipment
necessary to manufacture the Products, and is fit for the purposes for which it
is to be used in such manufacturing process. To Seller's knowledge, no material
used in the manufacturing process or the Products is toxic or a hazardous
substance or requires disposal as a hazardous substance under applicable
environmental laws. Supplier sourcing arrangements provide for availability of
all materials currently used in the manufacturing process at costs consistent
with those reflected in Seller's bill of materials.
Section 2.4 Litigation. There is no suit, action, proceeding (legal,
administrative or otherwise), claim, investigation or inquiry (by an
administrative agency, governmental body or otherwise) pending or, to Seller's
knowledge, threatened involving the Products and, to Seller's knowledge, there
is no factual basis upon which any such suit, action, claim, investigation,
inquiry or proceeding could be asserted or based. To Seller's knowledge, there
is no outstanding judgment, order, writ, injunction or decree of any court,
administrative agency, governmental body or arbitration tribunal against or
affecting Seller or any of the properties, assets or business to be sold
hereunder.
-4-
Section 2.5 Financial Information. The financial information concerning the
manufacture, distribution and sale of the Product that has been provided to
Buyer is, in all respects, (i) in accordance with the books and records of
Seller; and (ii) accurately and fairly reflects, in reasonable detail, the
transactions, assets and liabilities and production costs of Seller.
Section 2.6 No Conflict with Other Instruments or Proceedings. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not (i) result in the breach of any of the
terms or conditions of, or constitute a default under, the Certificate or
Articles of Incorporation or the Bylaws of Seller, or any contract, agreement,
commitment, indenture, mortgage, pledge, agreement, note, bond, license or other
instrument or obligation to which Seller is now a party or by which Seller or
any of its properties or assets is bound or affected; or (ii) violate any law,
rule or regulation of any administrative agency or governmental body or any
order, writ, injunction or decree of any court, administrative agency or
governmental body. There are no consents, approvals or authorizations of or
declarations, filings or registrations with any third parties or governmental or
regulatory authorities required in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, except for the transfer of the Medical Device Act
registration.
Section 2.7 Contracts. All contracts of Seller related to the Products are
described on Exhibit 1.1(c) hereto, which description includes: (i) any lease,
installment purchase agreement or other contract with respect to machinery and
equipment; (ii) any joint venture, distributorship, sales, advertising, agency,
manufacturer's representative, franchise, license or similar contract or
commitment; (iii) any contract or agreement for the purchase of any raw
material, component, material or piece of equipment; and (iv) any contract
purporting to limit the freedom of Seller to compete with respect to the
Product. Complete and accurate copies of all contracts and agreements described
on Exhibit 1.1(c) have been provided to Buyer. All contracts, agreements and
other arrangements described on Exhibit 1.1(c) are valid and enforceable in
accordance with their terms and Seller and, to Seller's knowledge, all other
parties to each of the foregoing have performed all obligations required to be
performed in connection therewith to date. Neither Seller nor, to Seller's
knowledge, any such other party is in default or in arrears under the terms of
any of the foregoing, and, to Seller's knowledge, no condition exists or event
has occurred which, with the giving of notice or the lapse of time or both,
would constitute a default under any of them.
Section 2.8 Intellectual Property. Exhibit 1.1(d) and Exhibit 1 to the
License Agreement hereto sets forth a list of all letters patent, patent
applications, inventions upon which patent applications have not yet been filed,
service marks, trade names, trademarks, trademark registrations and
applications, copyrights and copyright registrations and applications presently
owned, possessed, licensed or used by Seller in connection with the Business. To
Seller's knowledge, there is no infringement of or unlawful use by any person or
entity of any such patents, service marks, trade names, trademarks or
copyrights. Seller has not been notified that its processes used for manufacture
of the Products or Products sold by Seller infringe any patent, trademark, trade
dress, copyright, trade secret or other proprietary right of any other person or
entity. Seller knows of no patents or trademarks or trade dress rights or
copyrights held by any
-5-
other party, whether in the United States or any foreign country, which provide
a factual basis for infringement or potential liability with respect to the
manufacture, use, sale or offer for sale of the Products. No letters patent,
patent applications, service marks, trade names, trademarks, trademark
registrations and applications, copyrights, copyright registrations and
applications or grants of licenses set forth on Exhibit 1.1(d) are subject to
any pending or, to Seller's knowledge, threatened claim or challenge and, to
Seller's knowledge, there is no valid basis for asserting any such claim or
challenge. The manufacturing and engineering drawings, process sheets,
specifications, bills of material, trade secrets, "know-how" and other like data
of Seller are in such form and of such quality that Buyer can, following the
Closing, design, produce, manufacture, assemble and sell the products and
provide the services heretofore provided by Seller in a manner that meets the
applicable specifications and conforms with the quality standards heretofore met
by Seller. Except for registration under the Medical Device Act, Seller requires
no license or other proprietary right to operate the Business or manufacture or
sell the Products.
Section 2.9 Brokers' Fees. Seller has not incurred any liability for
brokers' fees, finders' fees, agents' commissions, financial advisory fees or
other similar forms of compensation in connection with this Agreement or any
transaction contemplated hereby.
Section 2.10 Product Warranties. There are no express or implied warranties
applicable to products sold by Seller. There is no action, suit, proceeding or
claim pending or, to Seller's knowledge, threatened against Seller under any
warranty, express or implied, and, to Seller's knowledge, there is no basis upon
which any such claim could be made.
Section 2.11 Permits and Licenses. All permits, licenses, orders and
approvals necessary for Seller to manufacture, distribute and sell the Products
as presently conducted are in full force and effect and have been complied with.
All fees and charges incident thereto have been fully paid and are current and
no suspension or cancellation of any such permit, license, order or approval has
been threatened or could result by reason of the transactions contemplated by
this Agreement.
Section 2.12 Compliance with Law and Other Regulations. Seller is not
subject to, nor has been, to Seller's knowledge, threatened with, any fine,
penalty, liability or disability as the result of a failure to comply with any
requirement of federal, state, local or foreign law or regulation (including
those relating to the employment of labor and occupatiorial health and safety)
or any requirement of any governmental body or agency having jurisdiction over
Seller, the conduct of its business, the use of its assets and properties or any
premises occupied by it.
Section 2.13 Accuracy of Statements. No representation or warranty made by
Seller in this Agreement, or any statement, certificate or schedule furnished,
or to be furnished, to Buyer pursuant hereto, or in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact necessary to
make the statements contained therein not misleading. The foregoing
representations, covenants and warranties shall be deemed to be made as of the
date of this Agreement and again as of the Closing Date.
-6-
ARTICLE 3
REPRESENTATIONS, COVENANTS AND WARRANTIES OF BUYER
Buyer represents, covenants and warrants to Seller as follows:
Section 3.1 Organization and Standing of Buyer. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Michigan.
Section 3.2 Authorization and Enforceability. Buyer has full capacity,
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby and this Agreement is binding upon Buyer and is
enforceable against Buyer in accordance with its terms.
Section 3.3 Brokers' Fees. Buyer has not incurred any liability for
brokers' fees, finders' fees, agents' commissions, financial advisory fees or
other similar forms of compensation in connection with this Agreement or any
transaction contemplated hereby.
ARTICLE 4
CLOSING
Section 4.1 Closing. The closing of the transactions contemplated herein
(the "Closing") shall take place in the offices of BISSELL Healthcare
Corporation, 4 Sammons Court, Bolingbrook, Illinois, commencing at 10 a.m. local
time on Thursday, August 28, 1997, or at such other place or time as the parties
may agree (the "Closing Date").
Section 4.2 Obligations of Seller. At the later of (i) Closing or (ii)
transfer of the Purchased Assets to Seller, Seller shall deliver to Buyer:
(a) warranty bills of sale, assignments, and such other instruments of
transfer as may, in the judgment of Buyer and its counsel, be sufficient to vest
in Buyer good and marketable title to the Purchased Assets, free and clear of
any and all claims, liens, mortgages, security interests, encumbrances, charges
or other restrictions, in form satisfactory to Buyer and its counsel;
(b) all books of account, customer lists and other records pertaining to
the Products or the Business;
(c) the opinion of Venture Law Group, counsel to Seller, covering those
matters described in Exhibit 4.2(c) hereof;
(e) the License Agreement referred to in Section 1.2 hereof, duly executed
on behalf of Seller; and
(f) the Supply Agreement referred to in Section 1.4 hereof, duly executed
on behalf of Seller.
-7-
Section 4.3 Obligations of Buyer. At the Closing, Buyer shall deliver to
Seller:
(a) the Purchase Price payable pursuant to Section 1.3 hereof;
(b) the opinion of Warner Norcross & Judd, LLP, counsel to Buyer, covering
those matters described in Section 4.3(13) hereof;
(c) the License Agreement described in Section 1.2 hereof, duly executed on
behalf of Buyer;
(d) instruments of assumption, assuming and agreeing to perform the
liabilities of Seller under the Contracts, in form acceptable to Seller and its
counsel; and
(e) the Supply Agreement referred to in Section 1.5 hereof, duly executed
on behalf of Buyer.
Section 4.4 Further Documents or Necessary Action. Buyer and Seller agree
to take all such further actions on or after the Closing Date at the expense of
Buyer as are reasonably necessary or appropriate in order to effectuate the
transactions contemplated in this Agreement.
ARTICLE 5
INDEMNIFICATION
Section 5.1 Indemnification by Seller. Seller shall defend, indemnify and
hold harmless Buyer, against and in respect of:
(a) Liabilities. Any and all liabilities of any nature, whether known or
unknown, accrued, absolute, contingent or otherwise, arising from the operation
of the Business prior to the Closing Date, except to the extent attributable to
the negligence, recklessness or intentional misconduct of Buyer;
(b) Breach of Warranty. Any and all loss, cost, damage, expense or
deficiency, including incidental and consequential damages, suffered by Buyer as
a result of facts, circumstances or events constituting a misrepresentation,
breach of warranty or nonfulfillment of any warranty, covenant, representation,
undertaking or agreement by Seller contained in this Agreement, regardless of
whether any such misrepresentation, breach or omission was deliberate, reckless,
negligent or innocent and unintentional; and
(c) Expenses. Any and all loss, cost, damage or expense incurred with
respect to any claims, actions, suits, proceedings or assessments arising out of
matters described in subsections (a) and (b) above, or the settlement thereof,
including, without limitation reasonable accounting and legal fees.
(d) Clarification Regarding Indemnification under Section 5.1(a). The
parties agree that Section 5.1(a) shall apply and Buyer shall be entitled to be
held harmless from and to be indemnified for all liabilities incurred by Seller
in the operation of the Business prior to the
-8-
Closing Date to Seller's customers, suppliers, employees, distributors or
representatives. Section 5.1(a) shall not apply to liabilities incurred by Buyer
in the operation of the Business after the Closing Date to Buyer's customers,
suppliers, employees, distributors or representatives.
Seller shall reimburse Buyer from time to time after the Closing Date in
respect of any liability or claim to which the foregoing agreement of indemnity
relates; provided that if any action, suit, investigation or proceeding shall be
commenced against or with respect to Buyer, in respect of which Buyer may demand
indemnification hereunder, Buyer shall notify Seller to that effect with
reasonable promptness after the commencement of such action, suit, investigation
or proceeding, and Seller shall have the opportunity to defend against such
action, suit, proceeding or investigation. If Seller elects to defend against
any action, suit, proceeding or investigation, Seller shall notify Buyer to that
effect with reasonable promptness. Buyer shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of Buyer, unless (i) the employment of such counsel at Seller's
expense shall have been authorized in writing by Seller in connection with the
defense of such action, suit, proceeding or investigation, (ii) Seller shall
have decided not to defend against such action, suit, proceeding or
investigation, (iii) Seller shall have exceeded the liability limitation set
forth under subsection 5.1(d) above, or (iv) Buyer shall have reasonably
concluded that such action, suit, proceeding or investigation involves to a
significant extent matters beyond the scope of the indemnity agreement contained
in this Article 5, in any of which cases Seller shall not have the right to
direct the defense of such action, suit, proceeding or investigation on behalf
of Buyer, and that portion of such fees and expenses reasonably related to
matters covered by the indemnity agreement contained in this Article 5 shall be
borne by Seller. Any party herein granted the right to direct the defense of a
claim shall (i) keep the other fully informed of such action, suit, proceeding
or investigation at all stages thereof whether or not represented, (ii) promptly
submit to the other copies of all pleadings, responsive pleadings, motions and
other similar legal documents and papers received in connection with such
action, suit, proceeding or investigation, (iii) permit the other and its
counsel, to the extent practicable, to confer on the conduct of the defense of
such action, suit, proceeding or investigation, and (iv) to the extent
practicable, permit the other and its counsel an opportunity to review all legal
papers to be submitted prior to such submission. Each party shall make available
to the other and its counsel and accountants all of its books and records
relating to such action, suit, proceeding or investigation and each party shall
render to the other such assistance as may be reasonably required in order to
insure the proper and adequate defense of any such action, suit, proceeding or
investigation.
Section 5.2 Indemnification by Buyer. Buyer shall defend, indemnify and
hold harmless Seller against and in respect of:
(a) Liabilities. (i) Any and all liabilities of any nature, whether
accrued, absolute, contingent or otherwise, arising from the operation of the
Business following the Closing Date, except to the extent attributable to the
negligence, recklessness or intentional misconduct of Seller;
-9-
(b) Breach of Warranty. Any and all loss, cost, damage, expense or
deficiency, including incidental and consequential damages, suffered by Seller
as a result of facts, circumstances or events constituting a misrepresentation,
breach of warranty or nonfulfillment of any warranty, covenant, representation,
undertaking or agreement by Buyer contained in this Agreement, regardless of
whether any such misrepresentation, breach or omission was deliberate, reckless,
negligent or innocent and unintentional;
(c) Physical Injury. Any injury to Seller's employees or agents incurred in
connection with the provision of technical assistance and training pursuant to
Section 1.5(c) due to the negligence, recklessness or intentional misconduct of
Buyer or its agents or employees, whether on Buyer's premises or not; and
(d) Expenses. Any and all loss, cost, damage or expense incurred with
respect to any claims, actions, suits, proceedings or assessments arising out of
matters described in subsections (a), (b) and (c) above, or the settlement
thereof, including, without limitation, reasonable accounting and legal fees.
Buyer shall reimburse Seller from time to time after the Closing Date in
respect of any liability or claim to which the foregoing agreement of indemnity
relates; provided that if any action, suit, investigation or proceeding shall be
commenced against or with respect to Seller, in respect of which Seller may
demand indemnification hereunder, Seller shall notify Buyer to that effect with
reasonable promptness after the commencement of such action, suit, investigation
or proceeding, and Buyer shall have the opportunity to defend against such
action, suit, proceeding or investigation. If Buyer elects to defend against any
action, suit, proceeding or investigation, Buyer shall notify Seller to that
effect with reasonable promptness. Seller shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of Seller unless (i) the employment of such counsel at Buyer's
expense shall have been authorized in writing by Buyer in connection with the
defense of such action, suit, proceeding or investigation, (ii) Buyer shall have
decided not to defend against such action, suit, proceeding or investigation, or
(iii) Seller shall have reasonably concluded that such action, suit, proceeding
or investigation involves to a significant extent matters beyond the scope of
the indemnity agreement contained in this Article 5, in any of which cases Buyer
shall not have the right to direct the defense of such action, suit, proceeding
or investigation on behalf of Seller and that portion of such fees and expenses
reasonably related to matters covered by the indemnity agreement contained in
this Article 5 shall be borne by Buyer. Any party herein granted the right to
direct the defense of a claim shall (i) keep the other fully informed of such
action, suit, proceeding or investigation at all stages thereof whether or not
represented, (ii) promptly submit to the other copies of all pleadings,
responsive pleadings, motions and other similar legal documents and papers
received in connection with such action, suit, proceeding or investigation,
(iii) permit the other and its counsel, to the extent practicable, to confer on
the conduct of the defense of such action, suit, proceeding or investigation,
and (iv) to the extent practicable, permit the other and its counsel an
opportunity to review all legal papers to be submitted prior to such submission.
Each party shall make available to the other and its counsel and accountants all
of its books and records relating to such action, suit, proceeding or
investigation and each party
-10-
shall render to the other such assistance as may be reasonably required in order
to insure the proper and adequate defense of any such action, suit, proceeding
or investigation.
ARTICLE 6
GENERAL
Section 6.1 Survival of Representations, Warranties. All representations
and warranties made by any party to this Agreement shall survive the Closing for
a period of one year thereafter and any investigation at any time made by or on
behalf of any party before or after the Closing. EXCEPT AS SPECIFICALLY PROVIDED
IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, MADE BY
ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 6.2 Binding Effect; Benefits; Assignment. All of the terms of this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the successors and authorized assigns of the parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon any other person any
rights or remedies under or by reason of this Agreement except as expressly
indicated herein. Neither Seller nor Buyer shall assign any of their respective
rights or obligations under this Agreement to any other person, firm or
corporation without the prior written consent of the other party.
Section 6.3 Definition of "Knowledge"." An individual will be deemed to
have "knowledge" of a particular fact or other matter if:
(a) such individual is actually aware of such fact or other matter; or
(b) a prudent individual could be expected to discover or otherwise become
aware of such fact or other matter in the course of conducting a reasonably
comprehensive investigation concerning the existence of such fact or other
matter.
A person other than an individual will be deemed to have "knowledge" of a
particular fact or other matter if any individual who is serving, or who has at
any time served, as a director or officer of such person (or in any similar
capacity) has, or at any time had, knowledge of such fact or other matter.
Section 6.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York as applicable to
contracts made and to be performed in the State of New York.
Section 6.5 Public Disclosure. Neither Buyer nor Seller shall make any
public disclosure of the existence or terms of this Agreement or the
transactions contemplated hereby without the prior written consent of the other
party, which consent shall not be unreasonably withheld.
-11-
Section 6.6 Notices. Any notice, consent, or communication required to
be given or payment required to be made to any party hereunder shall be sent to
its respective address as set forth below or to any other address as either
party may, by written notice, advise to the other from time to time:
(a) If to Buyer:
BISSELL Healthcare Corporation
4 Sammons Court
Bolingbrook, Illinois 60440-4989
Fax No. (630) 226-1390
with a copy to:
Warner Norcross & Judd LLP
900 Old Kent Building
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503-2489
Attention: Stephen R. Kretschman
Fax No. (616) 752-2500
(b) If to Seller:
LANDEC CORPORATION
3603 Haven Avenue
Menlo Park, California 94025-1010
Attention: Gary T. Steele
Fax No. (650) 368-9818
with a copy to:
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
Attention: Tae Hea Nahm
Fax No. (650) 233-8386
Either party may change its address by prior written notice to the other
party. Any and all notices shall be in writing and be delivered personally; by
registered or certified mail (return receipt requested); or by telegram,
facsimile, or overnight courier, to the other party at its then-current address.
Any such notice shall be deemed to have been received by the addressee: (i)
immediately, upon personal delivery and (ii) upon the date of receipt when
delivered by other means.
Section 6.7 Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be deemed to be an original and such
counterparts shall together
-12-
constitute one and the same instrument. A document executed by a party and
transmitted by facsimile transmission shall constitute valid execution and
delivery, and any such document shall be binding on the party so executing and
delivering such document.
Section 6.8 Expenses. Buyer and Seller shall pay their own respective
expenses and costs including, without limitation, all attorneys' and
accountants' fees incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, unless otherwise indicated in this Agreement.
Section 6.9 Entire Agreement. This Agreement, and the exhibits and
schedules hereto and the agreements referred to herein set forth the entire
agreement and understanding of the parties in respect of the transactions
contemplated hereby and supersede all prior agreements, arrangements and
understandings relating to the subject matter hereof. No representation,
promise, inducement or statement of intention has been made that is not embodied
in this Agreement or in the documents referred to herein and no party shall be
bound by or liable for any alleged representation, promise, inducement or
statement of intention not so set fort.
Section 6.10 Amendment and Waiver. This Agreement may be amended, modified,
superseded or canceled and any of the terms, covenants, representations,
warranties or conditions hereof may be waived only by a written instrument
executed by Seller and Buyer, or, in the case of a waiver, by or on behalf of
the party waiving compliance. The failure of any party at any tune to require
performance of any provision of this Agreement shall in no manner affect the
right of such party at a later time to enforce the same. No waiver by any party
of any condition or of any breach of any term, covenant, representation or
warranty contained in this Agreement, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such
condition or of any breach of any such term, covenant, representation or
warranty or any other term, covenant, representation or warranty set forth
herein.
Section 6.11 Severability. Any provision, or clause thereof, of this
Agreement which shall be found to be contrary to New York law or otherwise
unenforceable shall not affect the remaining terms of this Agreement, which
shall be construed in such event as if the unenforceable provision, or clause
thereof, were absent from this Agreement.
Section 6.12 Headings. The headings of the sections and paragraphs of this
Agreement have been inserted for convenience of reference only and shall in no
way restrict or otherwise modify any of the terms or provisions hereof.
Section 6.13 Limitation of Liability.
(a) Neither party shall be liable to other for lost profits arising out of
this Agreement, the License Agreement or the Supply Agreement under any theory
of damages or through indemnification, even if a party has been advised of the
possibility of such damages.
-13-
(b) In no event shall Seller be liable to Buyer under this Agreement, the
License Agreement or the Supply Agreement under any theory of damages or through
indemnification in the aggregate for amounts greater than [****]. This
limitation shall not apply to [****].
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BISSELL HEALTHCARE CORPORATION
By /s/ Howard A. Schwartz
------------------------
Howard A. Schwartz, President
"Buyer"
LANDEC CORPORATION
By /s/ Gary T. Steele
--------------------
Gary T. Steele, President
"Seller"
Pages re following exhibits omitted.
Exhibit 1.1(a) Description of Inventory
Exhibit 1.1(b) Machinery and Equipment
Exhibit 1.1(c) Contracts to be Assumed
Exhibit 1.1(d) Trademarks
Exhibit 1.2( Form of License Agreement
Exhibit 1.5 Form of Supply Agreement
Exhibit 4.2(c) Form of Opinion of Counsel for Seller
Exhibit 4.3(b) Form of Opinion of Counsel for Buyer
-15-