STOCK PURCHASE AGREEMENT
among
IBAH, INC.
(a Delaware Corporation),
CATAPULT PTY., LTD.
(an Australian Corporation),
PHILLIP ALTMAN
(a resident of Australia)
and
JUANITA ALTMAN
(a resident of Australia)
with respect to
PHARMACO US
(a Delaware Corporation)
STOCK PURCHASE AGREEMENT
TABLE OF CONTENTS
Section Page
1. Definitions.......................................................... 1
2. Purchase and Sale of Shares.......................................... 7
3 Closing.............................................................. 9
4. Representations and Warranties of the Selling Parties................ 9
5. Representations and Warranties of IBAH............................... 21
6. Payment of Tax Liabilities........................................... 22
7. Other Covenants...................................................... 23
8. Conditions Precedent to Obligations of IBAH.......................... 23
9. Conditions Precedent to Obligations of the Selling Parties........... 24
10. Competition and Confidentiality...................................... 24
11. Indemnification...................................................... 25
12. Contents of Agreement................................................ 28
13. Amendment, Parties in Interest, Assignment, Etc...................... 28
14. Interpretation....................................................... 28
15. Remedies............................................................. 28
16. Notices.............................................................. 29
17. Governing Law........................................................ 30
18. Counterparts......................................................... 30
Exhibits Schedules
A Escrow Agreement 4.3 Required Consents
B Altman Employment Agreement 4.4 Capitalization and Stock Ownership
C Registration Rights Agreement 4.6 Encumbrances
4.7 Real Property
4.9 Non-Real Estate Leases
4.12 Liabilities
4.15 Litigation; Governmental Permits
4.16 Contracts
4.17 Insurance
4.18 Intellectual Property
4.19 Employee Relations
4.20 Benefit Plans
4.22 Payments to Affiliates
4.24 Customers and Suppliers
4.26 Additional Information
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of February
28, 1997 by and among IBAH, Inc., a Delaware corporation ("IBAH"), Catapult
Pty., Ltd., an Australian corporation (the "Seller" ), Phillip Altman, a
resident of Australia and Juanita Altman, a resident of Australia (together,
the "Altmans" ). Certain other terms are used herein as defined below in
Section 1 or elsewhere in this Agreement.
Background
As of the date of the Closing, the Seller shall form Pharmaco U.S., a
Delaware corporation (the "US Company" ) as a wholly-owned subsidiary of the
Seller. The Seller conducted its entire Business, including all of its
operations, assets and liabilities (the "Business"), through Pharmaco Pty.
Ltd., an Australian corporation ( "Pharmaco" ). As of the date of Closing, the
Seller will transfer all of the issued and outstanding shares of capital stock
of Pharmaco to the US Company, the Seller will own all of the capital stock of
the US Company, the Altmans will own all of the capital stock of the Seller,
and the US Company will own all of the capital stock of Pharmaco. The Seller
desires to sell, and IBAH desires to buy, all of the stock of the US Company in
accordance with the terms of this Agreement.
Witnesseth
NOW, THEREFORE, in consideration of the respective covenants contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Definitions.
For convenience, certain terms used in more than one part of this
Agreement are listed in alphabetical order and defined or referred to below
(such terms as well as any other terms defined elsewhere in this Agreement shall
be equally applicable to both the singular and plural forms of the terms
defined).
"Action" is defined in Section 10.4.
"Accounts Receivable" means, as of any date any trade accounts
receivable, notes receivable, bid or performance deposits, employee advances and
other miscellaneous receivables included in the Assets of the Company.
"Affiliates" means, with respect to a particular party, persons or
entities controlling, controlled by or under common control with that party, as
well as any officers, directors and majority-owned entities of that party and of
its other Affiliates.
"Agreement" means this Agreement and the exhibits and schedules hereto.
"Altmans" is defined above in the Preamble.
"Altman Employment Agreement" means the Employment Agreement between the
Company and Phillip Altman, in the form of Exhibit "B" hereto.
"Assets" means, with respect to a particular Person, all of the assets,
properties, goodwill and rights of every kind and description, real and
personal, tangible and intangible, that are owned or possessed by such Person.
It is understood by the parties that Active Acne Tea Tree Oil Gel, Virasolve
Cold Sore Cream and SCF tablets are not and never have been assets of the
Company.
"Balance Sheet Date" is defined in Section 4.5.
"Benefit Plans" means all employee benefit plans of the US Company or the
Seller within the meaning of Section 3(3) of ERISA and any related or separate
Contracts, plans, trusts, programs, policies, arrangements, practices, customs
and understandings, in each case whether formal or informal, that provide
benefits of economic value to any present or former employee of the US Company,
or present or former beneficiary, dependent or assignee of any such employee or
former employee.
"Business" means, with respect to a particular Person, the entire
business, operations, and facilities of such Person.
"Charter Documents" means an entity's certificate or articles of
incorporation, certificate defining the rights and preferences of securities,
articles of organization, general or limited partnership agreement, certificate
of limited partnership, joint venture agreement or similar document governing
the entity.
"Claim Notice" is defined in Section 10.3
"Claim Response" is defined in Section 10.3
"Closing" is defined in Section 3.1.
"Closing Date" is defined in Section 3.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means (i) the US Company, (ii) Pharmaco and (iii) if the
context requires, any predecessor of the US Company or Pharmaco.
"Company Balance Sheet" is defined in Section 4.5.
"Company Common Stock" means the Common Stock, par value $0.01 per share,
of the US Company.
"Company Consolidated Financial Statements" is defined in Section 4.5 and
6.7.
"Confidential Information" means information, including a formula,
pattern, compilation, program, device, method, technique or process that (a)
derives independent economic value, actual or potential, from not being
generally known to the public or to other Persons who can obtain economic value
from its disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
"Consolidated Financial Statements" is defined in Section 4.5
"Contract" means any written or oral contract, agreement, lease,
instrument or other commitment that is binding on any person or its property
under applicable law.
"Copyrights" means registered copyrights, copyright applications and
unregistered copyrights.
"Court Order" means any judgment, decree, injunction, order or ruling of
any federal, state, local or foreign court or governmental or regulatory body or
authority that is binding on any person or its property under applicable law.
"Damages" is defined in Section 10.1.
"Default" means (a) a breach, default or violation, (b) the occurrence of
an event that with or without the passage of time or the giving of notice, or
both, would constitute a breach, default or violation or (c) with respect to any
Contract, the occurrence of an event that with or without the passage of time or
the giving of notice, or both, would give rise to a right of termination,
renegotiation or acceleration or a right to receive damages or a payment of
penalties.
"Dollar" or "$" means the currency of the United States of America,
unless otherwise noted.
"Encumbrances" means any lien, mortgage, security interest, pledge,
restriction on transferability, defect of title or other claim, charge or
encumbrance of any nature whatsoever on any property or property interest.
"Environmental Condition" is defined in Section 4.15(b).
"Environmental Law" is defined in Section 4.15(b).
"Escrow Agent" means PNC Bank, National Association.
"Escrow Agreement" means the Escrow Agreement among IBAH, the Seller, the
Altmans and the Escrow Agent, in the form of Exhibit "A" hereto and entered into
as of the date hereof.
"Escrow Funds" is defined in Section 2.1(c)(iii).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means U.S. generally accepted accounting principles.
"Governmental Permits" is defined in Section 4.15(d).
"Hazardous Substances" means any gaseous, liquid or solid material or
waste that may or could pose a hazard to the environment or human health or
safety including (i) any hazardous substances as defined by the federal
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
(S)(S)9601 et seq., (ii) any extremely hazardous substance, hazardous chemical,
or toxic chemical as those terms are defined by the federal Emergency Planning
and Community Right-to-Know Act, 42 U.S.C. (S)(S)11001 et seq., (iii) any
hazardous waste, as defined under the federal Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act, 42 U.S.C. (S)(S)6901 et
seq., (iv) any pollutant, as defined under the federal Water Pollution Control
Act, 33 U.S.C. (S)(S)1251 et seq., as any of such laws in clauses (i) through
(iv) may be amended from time to time, and (v) any regulated substance or waste
under any Laws or Court Orders that currently exist or that may be enacted,
promulgated or
issued in the future by any federal, state or local governmental authorities
concerning protection of the environment.
"IBAH" is defined above in the preamble.
"IBAH Common Stock" means IBAH's Common Stock, par value $0.01 per share.
"IBAH Financial Statements" is defined in Section 5.6.
"Immaterial Lease" is defined in Section 4.9.
"Indemnified Party" is defined in Sections 10.1 and 10.2.
"Indemnitor" is defined in Section 10.3.
"Intellectual Property" means any Copyrights, Patents, Trademarks,
technology rights and licenses, trade secrets, franchises, know-how, inventions
and other intellectual property.
"Inventory" means all inventory, including raw materials, supplies, work
in process, backlog and finished goods.
"Law" means any statute, law, ordinance, regulation, order or rule of any
federal, state, local, foreign or other governmental agency or body or of any
other type of regulatory body, including those covering environmental, energy,
safety, health, transportation, bribery, recordkeeping, zoning,
antidiscrimination, antitrust, wage and hour, and price and wage control
matters.
"Liability" means any direct or indirect liability, indebtedness,
obligation, expense, claim, loss, damage, deficiency, guaranty or endorsement of
or by any person, absolute or contingent, accrued or unaccrued, due or to become
due, liquidated or unliquidated.
"Liquidated Claim Notice" is defined in Section 10.3.
"Litigation" means any lawsuit, action, arbitration, administrative or
other proceeding, criminal prosecution or governmental investigation or inquiry.
"Material Adverse Effect" means a material adverse effect on the Business,
Assets, financial condition, results of operations, liquidity, products,
competitive position, customers or customer relations of the Company, and when
used with respect to representations, warranties or conditions, means the
individual effect of the situation to which it relates and also the aggregate
effect of all similar situations unless the context indicates otherwise.
"Minor Contracts" is defined in Section 4.16(a).
"Non-Real Estate Leases" is defined in Section 4.9.
"Ordinary course" or "ordinary course of business" means the ordinary
course of business that is consistent with past practices.
"Patents" means all patents and patent applications.
"Permitted Encumbrances" means those Encumbrances that are designated as
Permitted Encumbrances on Schedule 4.6.
"Person" means any natural person, corporation, partnership,
proprietorship, association, trust or other legal entity.
"Pharmaco" is defined in the Background section.
"Pharmaco US" means the US, Delaware subsidiary of Seller that Buyer is
purchasing from Seller.
"Prime Rate" means the prime lending rate as announced from time to time
in The Wall Street Journal.
"Purchase Price" is defined in Section 2.1(a).
"Real Property" is defined in Section 4.7.
"Registration Rights Agreement" means the Registration Rights Agreement
between IBAH and the Seller, in the form of Exhibit C hereto and entered into as
of the date hereof.
"Required Consents" is defined in Section 4.3.
"Response Period" is defined in Section 10.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" is defined above in the preamble.
"Selling Party" means (i) the Altmans, (ii) the Seller and (iii) the US
Company and Pharmaco prior to the Transactions.
"Selling Party's knowledge" or "knowledge of a Selling Party" means the
actual knowledge of any director, officer or supervisory employee of the Seller
the Company or Pharmaco.
"Shares" is defined in Section 2.1.
"Taxes" means all taxes, duties, charges, fees, levies or other
assessments imposed by any taxing authority including, without limitation,
income, gross receipts, value-added, excise, withholding, personal property,
real estate, sale, use, ad valorem, license, lease, service, severance, stamp,
transfer, payroll, employment, customs, duties, alternative, add-on minimum,
estimated and franchise taxes (including any interest, penalties or additions
attributable to or imposed on or with respect to any such assessment).
"Trademarks" means registered trademarks, registered service marks,
trademark and service mark applications and unregistered trademarks and service
marks.
"Transaction Documents" means this Agreement, the Escrow Agreement, the
Altman Consulting Agreement and the Registration Rights Agreement.
"Transactions" means the purchase and sale of the Shares and the other
transactions contemplated by the Transaction Documents.
"Unliquidated Claim" is defined in Section 10.3.
"US Company" is defined in the Background.
2. Purchase and Sale of Shares.
2.1 Purchase Price; Shares.
(a) At the Closing, IBAH shall buy from the Seller, and the Seller
shall sell to IBAH, all of the shares of the Company's Common Stock (the
"Shares") for an aggregate purchase price (the "Purchase Price") equal to US$3.8
million (subject to adjustment pursuant to section 2.1(b)) in the form of IBAH
Common Stock as calculated pursuant to subsection (b), (c) and (d) hereto.
(b) Adjustments to Purchase Price. As soon as practicable, but in any
event at least 7 days prior to the Closing Date, the Seller shall deliver to
IBAH the Closing financial statements of the Company, which will include a
balance sheet as of January 31, 1997, and an income statement for the seven-
month period then ended (or in the event that the Closing Date is after March
15, 1997, a balance sheet as of February 28, 1997, and an income statement for
the eight-month period then ended) (the "Final Financial Statements"). For
purposes of the representations and warranties contained herein, the Final
Financial Statements shall be deemed to be included in the Company Consolidated
Financial Statements. If the Final Financial Statements reflect a net loss for
the period ended January 31, 1997, at IBAH's option, IBAH and the Seller will
reduce the Purchase Price by such amount that is mutually agreed upon by such
parties. For the period after delivery of the Final Financial Statements and
prior to the Closing Date, the Seller will give IBAH and its agents and
representatives access to its books and records in order for IBAH to confirm the
information contained in the Final Financial Statements.
(c) IBAH shall pay the Purchase Price to the Seller as set forth
below:
(i) at the Closing, IBAH shall issue a certificate for the number
of shares of IBAH Common Stock required by Section 2.1(d) below; and
(ii) at the Closing, IBAH shall deliver to the Escrow Agent a
certificate for the number of shares of IBAH Common Stock which represent 9.9%
of the Purchase Price, to be held pursuant to the Escrow Agreement (the "Escrow
Funds").
(d) The number of shares of IBAH Common Stock to be issued to the
Seller and the Escrow Agent as the Purchase Price have been determined by
dividing (i) US$3.8 million (subject to adjustment pursuant to section 2.1(b))
by (ii) the average of the bid and ask prices of the IBAH Common Stock for the
ten trading days prior to the Closing Date as reported on the Nasdaq National
Market.
2.2 Escrow Account. At the Closing, the Seller and IBAH shall enter into
the Escrow Agreement with the Escrow Agent under which the Escrow Agent shall
hold the Escrow Shares for possible claims against the Seller under Section 10.
3. Closing
3.1 Date and Location. Subject to the terms and conditions of this
Agreement, the closing of the Transactions (the "Closing") shall take place at
the offices of IBAH, Four Valley Square, 512 Township Line Road, Blue Bell, PA
19422 at 10:00 a.m.e.s.t. on the second business day after the conditions to the
Closing set forth in Sections 7 and 8 of this Agreement shall have been
satisfied or waived (to the extent permissible), or such other time as IBAH and
the Seller together agree in writing. The date on which the Closing shall occur
is hereinafter referred to as the "Closing Date."
3.2 Deliveries. At the Closing,
(a) IBAH shall pay the Purchase Price as provided in clauses
(i) and (ii) of Section 2.1(c);
(b) the Seller shall deliver to IBAH certificates for the Shares,
either duly endorsed for transfer to IBAH or accompanied by
appropriate stock powers;
(c) the Seller and IBAH shall cause the US Company to issue to IBAH
a new certificate for the Shares, in due and proper form and
registered in the name of IBAH; and
(d) the parties shall also deliver to each other the Transaction
Documents, legal opinions and other documents and instruments
specified in Sections 7 and 8 and such other items as may be
reasonably requested.
4. Representations and Warranties of the Selling Parties.
Except as disclosed in the Disclosure Schedule, the Selling Parties hereby
jointly and severally represent and warrant to IBAH as follows and, specifically
with regard to Pharmaco, as set forth on Appendix A attached hereto and
incorporated by reference herein:
4.1 Corporate Status. Each of the US Company and Pharmaco is or will be
as of the Closing Date corporation duly organized, validly existing and in good
standing under the laws under which it was incorporated and is qualified to do
business as a foreign corporation in any jurisdiction where it is required to be
so qualified, except where the failure to so qualify would not have a Material
Adverse Effect. The Charter Documents and bylaws of each of the US Company and
Pharmaco that have been delivered to IBAH are effective under applicable Laws
and are current, correct and complete.
4.2 Authorization. The Company has the requisite power and authority to
own its Assets and to carry on its Business. The Seller has the requisite power
and authority to execute and deliver each Transaction Document to which he is a
party and to perform the Transactions performed or to be performed by him. Each
Transaction Document executed and delivered by the Seller constitutes a valid
and binding obligation of the Seller, enforceable against him in accordance with
its terms.
4.3 Consents and Approvals. Except for the consents specified on
SCHEDULE 4.3 (the "Required Consents"), neither the execution and delivery by
the Seller of the Transaction Documents to which it is a party, nor the
performance of the Transactions to be performed by the Seller, will require any
filing, consent or approval, constitute a Default or cause any payment
obligation to arise under (a) any Law or Court Order to which any Selling Party
is subject, (b) the Charter Documents or bylaws of the Company or (c) any
Contract, Government Permit or other document to which the Seller or the Company
is a party or by which the properties or other assets of the Company may be
subject.
4.4 Capitalization and Stock Ownership. The total authorized capital
stock of the US Company will consist of 1,000 shares of the Company Common
Stock,1,000 shares of which will be issued and outstanding. The Seller will be
the sole record and beneficial owner of all of the 1,000 shares of the Company
Common Stock which are to be issued and outstanding, and the Seller will own all
of the Shares free and clear of any encumbrances. The Shares of Company Common
Stock to be transferred to IBAH hereunder will comprise all of such issued and
outstanding shares of the US Company. Pharmaco has an authorized capital of
100,000 shares, of which 2 shares are issued, at $ AUS 1.00 each (the "Pharmaco
Common Stock" ). The US Company is the registered holder and beneficial owner
of all of the issued capital of Pharmaco being AUS$2.00 comprising two issued
shares of AUS$1.00 each. There are no existing, and will be none as of the
Closing Date, options, warrants, calls, commitments or other rights of any
character (including conversion or preemptive rights) relating to the
acquisition of any issued or unissued capital stock or other securities of the
US Company or of Pharmaco. All of the Shares and the shares of Pharmaco Common
Stock outstanding are and will be duly and validly authorized and issued, fully
paid and non-assessable. Each of the US Company and Pharmaco has and will
comply with all applicable Laws in connection with the issuance of the
outstanding shares of its capital stock, and none of the Shares or the
outstanding shares of Pharmaco Common Stock were issued in violation of any
Contract binding upon the US Company or Pharmaco. Upon completion of the
Transactions at the Closing, IBAH shall receive valid title to all
of the Shares, free and clear of all Encumbrances. The Altmans are the sole
record and beneficial owners of all of the shares of the Seller's capital stock
which are issued and outstanding, and the Altmans own all of such shares free
and clear of any encumbrances.
4.5 Financial Statements. The Seller has delivered to IBAH correct and
complete copies of the unaudited monthly consolidated financial statements of
the Company consisting of a balance sheet of the Company as of the end of
January 1997 and the related statement of income, changes to stockholders
equity and cash flows for the periods then ended and a complete copy of the
unaudited financial statement of the Company for the fiscal year ended June 30,
1996. The Seller has also delivered to IBAH correct and complete copies of
consolidated financial statements consisting of a consolidated balance sheet of
the Company as of June 30, 1993, 1994 and 1995 and the related consolidated
statements of income, retained earnings and cash flows for the years then ended
(the "Consolidated Financial Statements"). All such unaudited consolidated
financial statements and the Consolidated Financial Statements and all notes
thereto are referred to herein collectively as the "Company Consolidated
Financial Statements." The Company Consolidated Financial Statements are
consistent with the books and records of the Company, and there have not been
and will not be any material transactions that have not been recorded in the
accounting records underlying the Company's Consolidated Financial Statements.
Except as specified on SCHEDULE 4.5, the Company Consolidated Financial
Statements have been prepared in accordance with GAAP consistently applied
(subject in the case of the unaudited statements to year-end adjustments and the
absence of notes to the financial statements) and present accurately the
financial position and assets and liabilities of the Company as of the dates
thereof, and the results of its operations for the periods then ended. The
balance sheet of the Company as of June 30, 1996 that is included in the Company
Consolidated Financial Statements is referred to herein as the "Company Balance
Sheet," and the date thereof is referred to as the "Balance Sheet Date."
4.6 Title to Assets and Related Matters. The Company has good and
marketable title to, or valid leasehold interests in, all of its Assets
(including the Real Property identified in Section 4.7), free from any
Encumbrances except those specified on SCHEDULE 4.6. The use of the Assets is
not subject to any Encumbrances (other than those specified in the preceding
sentence), and such use does not materially encroach on the property or rights
of anyone else. All Real Property and tangible personal property (other than
Inventory) of the Company are suitable for the purposes for which they are used,
in good working condition and reasonable repair, free from any known defects.
4.7 Real Property. SCHEDULE 4.7 describes all real estate owned by the
Company used in the operation of its Business as well as any other real estate
that is in the possession of or leased by the Company and the improvements
(including buildings and other structures) located on such real estate
(collectively, the "Real Property"), and lists any leases under which any such
Real Property is possessed (the "Real Estate Leases"). Schedule 4.7 also
describes any other real estate previously owned, leased or otherwise operated
by the Company or any predecessor thereof and the time periods of any such
ownership, lease or operation. The Real Property is zoned commercial. The
Company has obtained all licenses and rights-of-way from governmental entities
or private parties that are necessary to ensure vehicular and pedestrian ingress
and egress to and from the Real Property.
4.8 Certain Personal Property. The Company has delivered to IBAH a
complete fixed asset schedule, describing and specifying the location of all
items of tangible personal property that were included in the Company Balance
Sheet. Since the Balance Sheet Date, the Company has not acquired any items of
tangible personal property that have, in each case, a carrying value in excess
of $10,000, or an aggregate carrying value of $25,000. All of such personal
property (a) is in operating condition, reasonable wear and tear excepted, (b)
is usable in the ordinary course of business and (c) conforms with any
applicable Laws relating to its construction, use and operation. Except for
those items subject to the Non-Real Estate Leases (defined below), no Person
other than the Company owns any vehicles, equipment or other tangible Assets
located on the Real Property that are used by the Company in its Business (other
than immaterial items of
personal property owned by the Company's employees) or that are necessary for
the operation of its Business.
4.9 Non-Real Estate Leases. SCHEDULE 4.9 lists all assets and property
(other than Real Property) that have been used in the operation of the Business
and that are possessed by the Company under an existing lease, including all
trucks, automobiles, forklifts, machinery, equipment, furniture and computers,
except for any lease under which the aggregate annual payments are less than
$10,000 (each, an "Immaterial Lease"). SCHEDULE 4.9 also lists the leases under
which such assets and property listed on SCHEDULE 4.9 are possessed. All of
such leases (excluding Immaterial Leases) are referred to herein as the "Non-
Real Estate Leases."
4.10 Accounts Receivable. The Accounts Receivable of the Company are
bona fide Accounts Receivable created in the ordinary course of business.
Except for Accounts Receivable for which reserves have been established, all of
the Accounts Receivable included in the Assets of the Company are collectible
within 90 days from the respective dates of sale. The Company does not know of
any facts or circumstances (other than general economic conditions) that are
likely to result in any material increase in the uncollectibility of such
Accounts Receivable in excess of any reserves therefor set forth in the Company
Balance Sheet.
4.11 Inventory. All Inventory of the Company consists of items saleable
in the ordinary course, and the aggregate market value of the Inventory included
in the Company Balance Sheet is at least equal to the value specified therefor
in the Company Balance Sheet. The Inventory records of the Company have been
delivered to IBAH and are accurate with respect to the data contained therein.
4.12 Liabilities. Except as disclosed on SCHEDULE 4.12, the Company does
not have any Liabilities, and none of the Assets of the Company is subject to
any Liabilities, except (a) as specifically disclosed on the Company Balance
Sheet (except as heretofore paid or discharged), (b) Liabilities incurred in the
ordinary course since the date thereof that, individually or in the aggregate,
are not material to the Business or the Assets, or (c) Liabilities of the
Company under any Contracts specifically disclosed on any Schedule (or not
required to be disclosed because of the term or amount involved) that were not
required under GAAP to have been specifically disclosed or reserved for on the
Company Balance Sheet.
4.13 Taxes. The Company has duly filed all returns for taxes that are
required to be filed and that were due prior to the Closing Date, and has paid
all material Taxes and assessments shown as being due pursuant to such returns
or pursuant to any assessment received. All Taxes and other assessments and
levies that the Company has been required by law to withhold or to collect have
been duly withheld and collected and have been paid over to the proper
governmental authorities or are properly held by each Company for such payment.
There are no proceedings or other actions, nor is there any basis for any
proceedings or other actions, for the assessment and collection of additional
Taxes of any kind for any period for which returns have or should have been
filed.
4.14 Subsidiaries. The US Company does not own, directly or indirectly,
any interest or investment (whether equity or debt) in any corporation,
partnership, business, trust, joint venture or other legal entity other than
Pharmaco. Pharmaco does not own, directly or indirectly, any interest or
investment (whether equity or debt) in any corporation, partnership, business,
trust, joint venture or other legal entity.
4.15 Legal Proceedings and Compliance with Law.
(a) Except as disclosed on SCHEDULE 4.15, there is no Litigation that
is pending or, to any Selling Party's knowledge, threatened against or related
to the Company. There has been no Default under any Laws applicable to the
Company, including Laws relating to pollution or protection of the environment,
and no Company has received any notices from any
governmental entity regarding any alleged Defaults under any Laws. There has
been no Default with respect to any Court Order applicable the Company.
(b) Without limiting the generality of Section 4.15(a), except as
described on SCHEDULE 4.15, there has not been any Environmental Condition
(defined below) (i) at the premises at which the Business of the Company has
been conducted, (ii) at any property owned, leased or operated at any time by
the Company, any Person controlled by any Affiliate of the Company or any
predecessor thereof, or (iii) at any property at which wastes have been
deposited or disposed by or at the behest or direction of any of the foregoing,
nor has the Company received written notice of any such Environmental Condition.
"Environmental Condition" means any condition or circumstance, including the
presence or release of Hazardous Substances, whether created by the Company or
any third party, at or relating to any such property or premises that (i)
requires investigation, monitoring, abatement or correction under an
Environmental Law (defined below), (ii) gives rise to any civil or criminal
liability under an Environmental Law, or (iii) has created a public or private
nuisance. "Environmental Law" means all Laws and Court Orders relating to
pollution or protection of the environment as well as any principles of common
law under which a party may be held liable for the release or discharge of any
materials into the environment.
(c) The Company has delivered to IBAH correct and complete copies of
any written reports, studies or assessments in the possession or control of any
Selling Party that relates to any Environmental Condition.
(d) Except in those cases where the failure would have a Material
Adverse Effect, (i) the Company has obtained and is in full compliance with all
governmental permits, licenses, registrations, certificates of occupancy,
approvals and other authorizations (the "Governmental Permits"), all of which
are listed in SCHEDULE 4.15 along with their respective expiration dates, that
are required for the complete operation of the Business of the Company as
currently operated, (ii) all of the Governmental Permits are currently valid and
in full force and (iii) the Company has filed such timely and complete renewal
applications as may be required with respect to its Governmental Permits. To
any Selling Party's knowledge, no revocation, cancellation or withdrawal thereof
has been threatened.
4.16 Contracts.
(a) SCHEDULE 4.16 lists each Contract of the following types to which
the Company is a party, or by which it is bound, as of the date hereof, except
for any Contract that may be terminated by the Company on not more than 30 days'
notice without any Liability and any Contract under which the executory
obligation of the Company involves an amount of less than $10,000 (such excepted
Contracts are referred to collectively as "Minor Contracts"):
(i) Contracts with any present or former stockholder, director,
officer, employee, partner or consultant of the Company or any Affiliate
thereof;
(ii) Contracts for the future purchase of, or payment for,
supplies or products, or for the lease of any Asset from or the performance of
services by a third party, in excess of $10,000 in any individual case, or any
Contracts for the sale of Inventory or products that involve an amount in excess
of $10,000 with respect to any one supplier or other party;
(iii) Contracts to sell or supply products or to perform services
that involve an amount in excess of $25,000 in any individual case;
(iv) Contracts to lease to or to operate for any other party any
Asset that involve an amount in excess of $25,000 in any individual case (other
than Real Estate Leases and Non-Real Estate Leases identified on other
SCHEDULES);
(v) Any notes, debentures, bonds, conditional sale agreements,
equipment trust agreements, letter of credit agreements, reimbursement
agreements, loan agreements or other Contracts for the borrowing or lending of
money (including loans to or from the Seller or any officers, directors,
partners, stockholders or Affiliates of the Company or any members of their
immediate families), agreements or arrangements for a line of credit or for a
guarantee of, or other undertaking in connection with, the indebtedness of any
other Person;
(vi) Any Contracts under which any Encumbrances exist with respect
to any Assets; and
(vii) Any other Contracts (other than Minor Contracts and those
described in any of (i) through (vi) above) not made in the ordinary course of
business.
(b) No Company is in Default under any Contract (including any Real
Estate Leases and Non-Real Estate Leases), which Default could result in a
Liability on the part of the Company in excess of $10,000 in any individual
case, and the aggregate Liabilities that could result from all such Defaults do
not exceed $25,000. No Company has received any communication from, or given
any communication to, any other party indicating that the Company or such other
party, as the case may be, is in Default under any Contract where such Default
could have a Material Adverse Effect. To the knowledge of any Selling Party,
none of the other parties in any such Contract to which the Company is a party
is in Default thereunder.
4.17 Insurance. SCHEDULE 4.17 lists all policies or binders of insurance
held by or on behalf of the Company, specifying with respect to each policy the
insurer, the amount of the coverage, the type of insurance, the risks insured,
the expiration date, the policy number and any pending claims thereunder. There
is no Default with respect to any such policy or binder, nor has there been any
failure to give any notice or present any claim under any such policy or binder
in a timely fashion or in the manner or detail required by the policy or binder.
There is no notice of nonrenewal or cancellation with respect to, or
disallowance of any claim under, any such policy or binder that has been
received by the Company.
4.18 Intellectual Property and Software Products.
(a) No Company currently uses nor has the Company previously used in
the development, production or marketing of its products and services any
Copyrights, Patents or Trademarks except for those listed on SCHEDULE 4.18. The
Company owns or has the lawful right to use all Intellectual Property that is
used in the operation of its Business in the ordinary course or otherwise. All
of the Intellectual Property listed on SCHEDULE 4.18 is owned by such listed
Company free and clear of any Encumbrances, or used pursuant to an agreement
that is described on SCHEDULE 4.18. No Company infringes upon or unlawfully or
wrongfully uses any Intellectual Property rights owned or claimed by another
Person. No Company is in Default, nor has the Company received any notice of
any claim of infringement or any other claim or proceeding, with respect to any
such Intellectual Property. No current or former employee of the Company and no
other Person owns or has any proprietary, financial or other interest, direct or
indirect, in whole or in part, and including any right to royalties or other
compensation, in any of the Intellectual Property, or in any application
therefor.
(b) All employees and consultants of the Company who are involved in
the design, review, evaluation or development of Intellectual Property have
executed a nondisclosure and assignment of inventions agreement
("Confidentiality Agreement") sufficient to protect the confidentiality and
value of such items and to vest in the Company exclusive ownership thereof. To
any Selling Party's knowledge, (i) none of the Confidential Information has been
used, divulged or appropriated (A) for the benefit of any Person other than the
Company or a customer thereof or (B) otherwise to the detriment of the Company,
(ii) none of such employees or consultants of the Company is subject to any
contractual or legal restrictions that might interfere with the use of his best
efforts to promote the interests of the Company, (iii) no employee or consultant
of the Company has used any other Person's trade secrets or other information
that is confidential in the
course of his or her work for the Company, and (iv) no employee or consultant of
the Company is, or is currently expected to be, in Default under any term of any
employment contract, agreement or arrangement relating to the Intellectual
Property, or any Confidentiality Agreement or any other Contract or any
restrictive covenant relating to the Intellectual Property, or the development
or exploitation thereof.
4.19 Employee Relations. Except as described on SCHEDULE 4.19, no Company
is (a) a party to, involved in or, to any Selling Party's knowledge, threatened
by, any labor dispute or unfair labor practice charge, or (b) currently
negotiating any collective bargaining agreement, and no Company has experienced
any work stoppage during the last three years. The Seller has delivered to IBAH
a complete and correct list of the names and salaries, bonus and other cash
compensation of all employees (including officers) of the Company whose total
cash compensation for 1996 exceeded, or whose total cash compensation for 1997
is expected to exceed, $60,000.
4.20 ERISA.
(a) SCHEDULE 4.20 contains a complete list of all Benefit Plans
sponsored or maintained by the US Company or under which the US Company may be
obligated. The Seller has delivered to IBAH (i) accurate and complete copies of
all Benefit Plan documents and all other material documents relating thereto,
including (if applicable) all summary plan descriptions, summary annual reports
and insurance contracts, (ii) accurate and complete detailed summaries of all
unwritten Benefit Plans, (iii) accurate and complete copies of the most recent
financial statements and actuarial reports with respect to all Benefit Plans for
which financial statements or actuarial reports are required or have been
prepared and (iv) accurate and complete copies of all annual reports for all
Benefit Plans (for which annual reports are required) prepared within the last
three years. Each Benefit Plan providing benefits that are funded through a
policy of insurance is indicated by the word "insured" placed by the listing of
the Benefit Plan on SCHEDULE 4.20.
(b) All Benefit Plans conform (and at all times have conformed) in
all material respects to, and are being administered and operated (and have at
all times been administered and operated) in material compliance with, the
requirements of ERISA, the Code and all other applicable Laws. All returns,
reports and disclosure statements required to be made under ERISA and the Code
with respect to all Benefit Plans have been timely filed or delivered. There
have not been any "prohibited transactions," as such term is defined in Section
4975 of the Code or Section 406 of ERISA involving any of the Benefit Plans,
that could subject the US Company to any material penalty or tax imposed under
the Code or ERISA.
(c) Any Benefit Plan that is intended to be qualified under Section
401(a) of the Code and exempt from tax under Section 501(a) of the Code has been
determined by the Internal Revenue Service to be so qualified, and such
determination remains in effect and has not been revoked. Nothing has occurred
since the date of any such determination that is reasonably likely to affect
adversely such qualification or exemption, or result in the imposition of excise
taxes or income taxes on unrelated business income under the Code or ERISA with
respect to any Benefit Plan.
(d) The US Company does not sponsor a defined benefit plan subject to
Title IV of ERISA, nor does the US Company have a current or contingent
obligation to contribute to any multiemployer plan (as defined in Section 3(37)
of ERISA), and neither the US Company nor any of its predecessors have ever
contributed to a multiemployer plan. The US Company does not have any liability
with respect to any employee benefit plan (as defined in Section 3(3) of ERISA)
other than with respect to the Benefit Plans.
(e) There are no pending or, to the knowledge of any Selling Party,
threatened claims by or on behalf of any Benefit Plans, or by or on behalf of
any individual participants or beneficiaries of any Benefit Plans, alleging any
breach of fiduciary duty on the part of the US Company or any of its officers,
directors or employees under ERISA or any other applicable
regulations, or claiming benefit payments other than those made in the ordinary
operation of such plans, nor is there, to the knowledge of any Selling Party,
any basis for such claim. The Benefit Plans are not the subject of any pending
(or to the knowledge of a Selling Party, any threatened) investigation or audit
by the Internal Revenue Service, the Department of Labor or the Pension Benefit
Guaranty Corporation ("PBGC").
(f) The Company has timely made any and all required contributions
under the Benefit Plans including the payment of any premiums payable to the
PBGC and other insurance premiums.
(g) With respect to any Benefit Plan that is an employee welfare
benefit plan (within the meaning of Section 3(1) of ERISA) (a "Welfare Plan"),
(i) each Welfare Plan for which contributions are claimed as deductions under
any provision of the Code is in material compliance with all applicable
requirements pertaining to such deduction, (ii) with respect to any welfare
benefit fund (within the meaning of Section 419 of the Code) related to a
Welfare Plan, there is no disqualified benefit (within the meaning of Section
4976(b) of the Code) that would result in the imposition of a tax under Section
4976(a) of the Code, (iii) any Benefit Plan that is a group health plan (within
the meaning of Section 4980B(g)(2) of the Code) complies, and in each and every
case has complied, with all of the material requirements of Section 4980B of the
Code, ERISA, Title XXII of the Public Health Service Act and the applicable
provisions of the Social Security Act, and (iv) all Welfare Plans may be amended
or terminated at any time on or after the Closing Date. Except as specified on
SCHEDULE 4.20, no Benefit Plan provides any health, life or other welfare
coverage to employees of the Company beyond termination of their employment with
the Company by reason of retirement or otherwise, other than coverage as may be
required under Section 4980B of the Code or Part 6 of ERISA, or under the
continuation of coverage provisions of the laws of any state or locality.
(h) Except as otherwise set forth in the SCHEDULE 4.20, neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in any payment to be made by
the Company (including, without limitation, severance, unemployment
compensation, golden parachute (as defined in Code Section 280G or otherwise))
becoming due to any employee or former employee, officer or director, or (ii)
increase or vest any benefits payable under any Benefit Plan.
(i) Except as otherwise set forth in the Schedule 4.20, any amount
that could be received (whether in cash or property or the vesting of property)
as a result of any of the transactions contemplated by this Agreement by any
employee, officer or director of the Company who is a disqualified individual
(as such term is defined in proposed Treasury Regulation Section 1.280G-1) under
any employment, severance or termination agreement, other compensation
arrangement or Benefit Plan currently in effect would not be characterized as an
excess parachute payment (as such term is defined in Section 280(b)(1) of the
Code).
4.21 Corporate Records. The minute books of the US Company and Pharmaco
contain complete, correct and current copies of their respective Charter
Documents and bylaws and of all minutes of meetings, resolutions and other
proceedings of each company s Board of Directors and stockholders. The stock
record book of the US Company and Pharmaco is complete, correct and current.
4.22 Absence of Certain Changes. Except as specified on SCHEDULE 4.22 and
as otherwise contemplated by this Agreement, since the Balance Sheet Date, the
Company has conducted its Business in the ordinary course and there has not been
with respect to the Company:
(a) a change in its business that has had or is reasonably likely to
have a Material Adverse Effect;
(b) any distribution or payment declared or made in respect of its
capital stock by way of dividends, purchase or redemption of
shares or otherwise;
(c) any increase in the compensation payable or to become payable to
any director, officer, employee or agent, except for increases
for non-officer employees made in the ordinary course of
business, nor any other change in any employment or consulting
arrangement;
(d) any sale, assignment or transfer of Assets, or any additions to
or transactions involving any Assets, other than those made in
the ordinary course of business;
(e) other than in the ordinary course of business, any waiver or
release of any claim or right or cancellation of any debt held;
or
(f) any payments to any Affiliate of the Company.
4.23 Previous Sales; Warranties. All goods sold or distributed and all
services performed by the Company were of merchantable quality, and no Company
has breached any express or implied warranties in connection with the sale or
distribution of such goods.
4.24 Customers and Suppliers. The Company has used its reasonable business
efforts to maintain and currently maintains, good working relationships with all
of its customers and suppliers. SCHEDULE 4.24 contains a list of the names of
each of the ten customers that, in the aggregate, for the three years ending
December 31, 1994, 1995 and 1996, were the largest dollar volume customers of
products or services, or both, sold by the Company. Except as specified on
SCHEDULE 4.24, none of such customers has given the Company notice terminating,
canceling or threatening to terminate or cancel any Contract or relationship
with the Company SCHEDULE 4.24 also contains a list of the ten suppliers that,
in the aggregate, for the three years ending December 31, 1994, 1995 and 1996
were the largest dollar volume suppliers of supplies used by the Company. None
of such suppliers has given the Company notice terminating, canceling or
threatening to terminate or cancel any Contract or relationship with the
Company.
4.25 Finder's Fees. No Person retained by any Selling Party is or will
be entitled to any commission or finder's or similar fee in connection with the
Transactions.
4.26 Additional Information. SCHEDULE 4.26 accurately lists the
following:
(a) the names of all officers and directors of each of the US
Company and Pharmaco;
(b) the names and addresses of every bank or other financial
institution in which the Company maintains an account (whether
checking, saving or otherwise), lock box or safe deposit box,
and the account numbers and names of Persons having signing
authority or other access thereto;
(c) the names of all Persons authorized to borrow money or incur or
guarantee indebtedness on behalf of the Company;
(d) the names of any Persons holding powers of attorney from the
Company and a summary statement of the terms thereof; and
(e) all names under which the Company has conducted any Business or
which it has otherwise used at any time during the past five
years.
4.27 IBAH Common Stock
(a) The Seller is receiving the shares of IBAH Common Stock solely
for investment purposes, with no present intention of
distributing or reselling any of the IBAH Common Stock or any
interest therein. The Seller acknowledges that the IBAH Common
Stock has not been registered under the Securities Act.
(b) The Seller is aware of the applicable limitations under the
Securities Act relating to a subsequent sale, transfer, pledge,
mortgage, hypothecation, gift, assignment or other encumbrance of
the IBAH Common Stock. The Seller further acknowledges that the
IBAH Common Stock must be held indefinitely unless it is
subsequently registered under the Securities Act and applicable
state securities laws or an exemption from such registration is
available.
(c) The Seller has received from IBAH adequate access to financial
and other information concerning IBAH and the IBAH Common Stock,
and the Seller has had the opportunity to ask questions of and
receive answers from IBAH concerning the IBAH Common Stock and to
obtain therefrom any additional information necessary to make an
informed decision regarding the acquisition of the IBAH Common
Stock.
(d) The Seller has such knowledge and experience in financial and
business matters that they are capable of evaluating the merits
and risks of the acquisition of the IBAH Common Stock.
(e) The Seller realizes that IBAH is relying on the validity of his
representations and agreements contained herein and in the other
Transaction Documents in issuing the IBAH Common Stock to them
without registration under the Securities Act.
(f) The Seller is an "accredited investors" as that term is defined
in Regulation D under the Securities Act.
4.28 Transactions in Capital Stock, Accounting Treatment. No option,
warrant, call, subscription right, conversion right or other contract or
commitment of any kind exists which may obligate either the US Company or
Pharmaco to issue, sell or otherwise become outstanding any shares of capital
stock. Neither the US Company nor Pharmaco has any obligation (contingent or
otherwise) to purchase, redeem or otherwise acquire any of its equity securities
or any interests therein or to pay any dividend or make any distribution in
respect thereof. Neither the voting stock structure of the US Company or
Pharmaco nor the relative ownership of shares among any of its stockholders has
been altered or changed in contemplation of the sale of Shares to IBAH. Except
as set forth on SCHEDULE 4.29, there has been no transaction or action taken
with respect to the equity ownership of the Company within the preceding two
years.
4.29 No Bonus Shares. None of the shares of Company Common Stock was
issued pursuant to awards, grants or bonuses.
4.30 Predecessor Status; etc.. SCHEDULE 4.31 hereto sets forth a listing
of all names of all predecessor companies of the US Company and Pharmaco,
including without limitation the names of any entities from whom the Company or
Pharmaco has acquired material assets. Neither the Company nor Pharmaco has at
any time been a subsidiary or division of another corporation, other than the
Seller or the US Company, or a part of an acquisition which was later rescinded.
4.31 Spin-off by the Company. There has not been any sale or spin-off of
material assets of the Company or any Affiliate within the preceding two years.
4.32 Treatment as a Pooling Transaction. The Selling Parties acknowledge
that they understand the requirements for a transaction to be treated as a
pooling of interests as defined under GAAP, and the Selling Parties have not
engaged in any actions that would result in the Transactions not being treated
as a pooling of interests. Provided that the entry into and performance of the
Transaction in the Transaction Document will not be taken to constitute a
breach of this warranty.
4.33 Accuracy of Information. No representation or warranty by any Selling
Party in any Transaction Document, and no information contained herein or
therein, including the Consolidated Financial Statements and the due diligence
materials given to IBAH, contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
contained herein or therein not misleading.
4.34 Representations. The representations and warranties of the Selling
Parties contained in this Agreement, disregarding all qualifications and
exceptions herein relating to materiality or Material Adverse Effect, are true
and correct.
5. Representations and Warranties of IBAH.
IBAH hereby represents and warrants to the Seller as follows:
5.1 Corporate. IBAH is a corporation duly organized, validly existing and
in good standing under the laws under which it was incorporated and is qualified
to do business as a foreign corporation in any jurisdiction where it is required
to be so qualified, except where the failure to so qualify would not have a
Material Adverse Effect. IBAH has the requisite power and authority to execute
and deliver the Transaction Documents to which it is a party and to perform the
Transactions to be performed by it, and such execution, delivery and performance
by IBAH have been duly authorized by all necessary corporate action.
5.2 Authorization. IBAH has the requisite power and authority to own its
Assets and to carry on its Business. IBAH has the requisite power and authority
to execute and deliver the Transaction Documents to which it is a party and to
perform the Transactions performed or to be performed by it. Such execution,
delivery and performance by IBAH has been duly authorized by all necessary
corporate action, other than approval by the stockholders of IBAH. Each
Transaction Document executed and delivered by IBAH has been duly executed and
delivered by, and constitutes a valid and binding obligation of IBAH,
enforceable against IBAH in accordance with its terms.
5.3 IBAH Disclosure Documents. IBAH has filed all required forms,
reports, statements, schedules and other documents with the SEC since the date
when it became subject to the reporting requirements under the 1934 Act
(collectively, the IBAH Disclosure Documents"). IBAH has furnished to the
Selling Parties its Registration Statement on Form S-2, as amended, and the
final prospectus dated April 16, 1995 and Exhibits with respect to such
Registration Statement, its Registration Statement on Form S-3, as amended, and
the final prospectus dated December 16, 1996 and Exhibits with respect to such
Registration Statement as well as IBAH's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, and its Quarterly Reports on Form 10-Q for
the periods ending March 31, 1996, June 30, 1996 and September 30, 1996, IBAH s
Current Report on Form 8-K, as amended, filed on October 9, 1996 and IBAH s
Proxy Statement dated December 30, 1996, all of which are part of the IBAH
Disclosure Documents. Each of such IBAH Disclosure Documents, at the time it
was filed, complied in all material respects with all applicable requirements of
the 1933 Act and the 1934 Act, and with the forms, rules and regulations of the
SEC promulgated thereunder, and did not contain at the time filed any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
5.4 Consents and Approvals. Neither the execution and delivery by IBAH
of the Transaction Documents to which it is a party, nor the performance of the
Transactions by IBAH, will require any filing, consent or approval or constitute
a Default under (a) any Law or Court Order to which IBAH is subject, (b) the
Charter Documents or bylaws of IBAH or (c) any Contract, Government Permit or
other document to which IBAH is a party or by which the properties or other
assets of such may be subject.
5.5 Capitalization and Stock Ownership. The total authorized capital
stock of IBAH consists of 50,000,000 shares of Common Stock, par value $0.01 per
share, approximately 22,141,562 shares of which are issued and outstanding and
2,000,000 shares of Series A Convertible Preferred Stock, par value $0.01 per
share, 749,665 of which are issued and outstanding. Except for management
options issued in February 1997 pursuant to a management option plan, there are
no existing options, warrants, calls, commitments or other rights of any
character (including conversion or preemptive rights) relating to the
acquisition of any issued or unissued capital stock or other securities of IBAH.
All of the issued and outstanding capital stock of IBAH is owned of record and
beneficially by IBAH. The IBAH Common Stock to be issued to Seller at the
Closing will be duly authorized, validly issued, fully paid and non-assessable.
5.6 Financial Statements. IBAH has delivered to the Seller correct and
complete copies of consolidated financial statements consisting of a balance
sheet of IBAH as of December 31, 1994 and 1995, and the related consolidated
statements of income, changes to stockholders equity and cash flows for the
years then ended. In addition, IBAH has delivered to the Seller correct and
complete copies of IBAH's unaudited monthly consolidated financial statements as
of the end of each month from July 1996 through September 1996. The financial
statements as of and for the years ended December 31, 1994 and 1995 have been
audited by Arthur Andersen & Co LLP. All of such audited and unaudited
financial statements, together with the notes to the audited financial
statements, are referred to herein as the "IBAH Financial Statements." The IBAH
Financial Statements are consistent with the books and records of IBAH, and
there have not been any material transactions that have not been recorded in the
accounting records underlying the IBAH Financial Statements. The IBAH Financial
Statements have been prepared in accordance with GAAP consistently applied
(subject in the case of the unaudited statements to year-end adjustments and the
absence of notes to the financial statements) and present accurately the
financial position and assets and liabilities of IBAH as of the dates thereof,
and the results of its operations for the periods then ended.
5.7 Finder's Fees. No Person retained by IBAH is or will be entitled to
any commission or finder's or similar fee in connection with the Transactions.
5.8 Accuracy of Information. No representation or warranty by IBAH in any
Transaction Document, and no information contained therein or otherwise
delivered to the Seller or in connection with the Transactions, contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements contained herein or therein not
misleading.
6. Covenants.
6.1 Conduct of Business. Except as contemplated or otherwise consented
to by IBAH in writing, Seller shall cause the Company to (a) carry on the
Business in the ordinary course and substantially the same manner as heretofore
carried on, and refrain from the following actions in furtherance of and in
addition to such restriction: selling or otherwise disposing of any Assets
except for sales and other dispositions in the ordinary course of business;
entering into any contract or otherwise incurring any Liability, in the ordinary
course or otherwise, if the executory obligation in any such individual case, or
series of related cases, would (i) exceed $5,000 or (ii) cause the sum of all
such executory obligations to exceed $25,000; discharging or satisfying any
Encumbrance or paying or satisfying any material Liability except pursuant to
the terms thereof or compromising, settling or otherwise modifying any material
claim or litigation. Nothing in this
Agreement shall be construed to limit the Seller's discretion to operate the
Business in the ordinary course, or shall give IBAH any ownership of the Company
before the Closing Date.
6.2 Access, Information and Documents. Seller shall, and shall cause the
Company to, give IBAH and its representatives (including IBAH's accountants,
counsel and employees), upon reasonable notice and during normal business hours,
full access to the properties, contracts, books, records and affairs of Seller
and the Company. Seller shall cause its officers and employees, and the
officers and employees of the Company, to furnish to IBAH all documents, records
and information (and copies thereof) relating solely to the Business as IBAH may
reasonably request; it being understood that (a) Seller, in its sole discretion,
may deny or restrict any access (i) involving possible breaches of applicable
confidentiality agreements with third parties, environmental reviews the written
work plan for which had not been previously approved by Seller in its sole
discretion or possible waivers of any applicable attorney-client privileges or
(ii) in the event IBAH is in breach of this Agreement, (b) such investigations
shall not under any circumstances interfere in any material respect with the
Company's operations, activities or employees, and (c) such investigations shall
not be of a nature which in the opinion of Seller may violate applicable
antitrust or similar laws.
6.3 Payment of Expenses. Each of the parties hereto shall pay their own
expenses for lawyers, accountants, consultants, investment bankers, brokers,
finders and other advisors with respect to the Transactions.
6.4 Lock-up. The Seller will not sell, transfer, pledge, donate, assign,
mortgage, hypothecate or otherwise encumber the IBAH Common Stock for the 180-
day period after the Closing Date, and thereafter will not sell, transfer,
pledge, donate, assign, mortgage, hypothecate or otherwise encumber the IBAH
Common Stock unless it is registered under the Securities Act or IBAH is given
an opinion of counsel (which may be an opinion of counsel to IBAH), acceptable
to IBAH, that such registration is not required under the Securities Act.
6.5 In General. The parties mutually covenant and agree, as applicable,
to use commercially reasonable efforts to obtain promptly the satisfaction of
the conditions to the Closing of the Transactions to the extent that such
conditions are within their respective control.
6.6 FIRB . Seller shall co-operate with IBAH in all reasonable ways in
connection with any application, notification, or filing of IBAH pursuant to the
Australian Foreign Investment Review Board in relation to either the Foreign
Acquisitions and Takeovers Act 1975 (Cwth) or the Australian Government's
Foreign Investment Policy.
6.7 Updated Financial Statements. Seller shall deliver to IBAH as soon
as practicable unaudited financial statements with respect to the Company as of
the end of each month after the date hereof (and for the period then ended) that
precedes the Closing, and such financial statements shall be of the same type as
and shall be deemed to be included in the Company Consolidated Financial
Statements shall be updated by those most recent financial statements.
6.8 Maintenance of the Assets. Seller shall cause the Company to maintain
and service the Assets consistent with past practice.
6.9 Employees and Business Relations. Seller shall cause the Company to
use commercially reasonable efforts to keep available the services of its
current employees and agents and to maintain its relations and goodwill with its
suppliers, customers, distributors and any others having business relations with
it.
6.10 Litigation During Interim Period. Seller shall promptly advise IBAH
in writing of the threat or commencement of any litigation or proceeding against
or involving the Company.
6.11 Disclosure of Certain Matters. Seller shall give IBAH prompt written
notice of any event or development that occurs that (a) had it existed or been
known on the date hereof would
have been required to be disclosed under this Agreement, (b) would cause any of
the representations and warranties of Seller contained herein to be inaccurate
or otherwise misleading, or (c) gives any Seller Party any reason to believe
that any of the conditions set forth herein will not be satisfied prior to the
Termination Date (defined below).
6.12 Pooling. The Seller shall not take any actions or fail to take any
actions, and shall cause the US Company and Pharmaco not to take any actions or
fail to take any actions that would result in the Transactions not being treated
as a pooling of interests. Provided that the entry into and performance of the
Transaction in the Transaction Documents will not be taken to constitute a
breach of this warranty.
7. Conditions Precedent to Obligations of IBAH.
All obligations of IBAH to consummate the Transactions are subject to the
satisfaction (or waiver by IBAH) prior thereto of each of the following
conditions:
7.1 Performance of Agreements; Representations and Warranties. Each
Seller Party shall have performed or complied in all material respects with all
agreements, covenants and conditions required by this Agreement to be performed
or complied with by it at or prior to the Closing, provided that the aggregate
effect of any failures to perform or comply shall not constitute a Material
Adverse Effect; the representations and warranties set forth in this Agreement
made by the Seller Parties shall have been (i) true and correct in the case of
any representation or warranty containing a materiality qualification and (ii)
true and correct in all material respects in the case of any representation or
warranty without any materiality qualification, in each case, when made and also
on and as of the Closing Date with the same effect as if repeated on the Closing
Date, except for changes expressly contemplated by this Agreement; and Buyer
shall have been furnished with a certificate of Phillip Altman, dated the
Closing Date, certifying to the foregoing.
7.2 Required Consents. The Company shall have obtained the Required
Consents without any modification that IBAH deems unacceptable.
7.3 Directors. All directors of the US Company and Pharmaco shall have
tendered their resignations as directors, effective as of the Closing, and the
Persons designated by IBAH shall have been elected to the Board of Directors of
the Company and Pharmaco.
7.4 Certificate. Each Selling Party shall have tendered a certificate by
which he certifies to IBAH that the conditions set forth in this Section 7 have
been satisfied, and such certificate shall be deemed to be a representation of
such Selling Party hereunder.
7.5 Ancillary Documents. IBAH shall have received executed copies of
the Altman Consulting Agreement, the Escrow Agreement and the Registration
Rights Agreement.
7.6 Legal Opinion. The Seller shall have tendered a legal opinion of
Kevin Munro & Associates, counsel to the Selling Parties, in a form that is
acceptable to IBAH.
7.7 Foreign Investment Review Board. The occurrence of any of the
following events:
(a) the Treasurer of the Commonwealth of Australia giving an approval to
the acquisition by IBAH of the Shares under the Foreign Acquisitions and
Takeovers Act 1975 (Cwth) ("FATA") (the approval to be subject to no
conditions or only to those conditions that IBAH considers (in its
absolute discretion) to be acceptable),
(b) the expiration of the relevant period following the giving of notice
relating to the acquisition by IBAH of the Shares under section 26 of the
FATA without any order of prohibition being made under the FATA; and
(c) the Treasurer of the Commonwealth of Australia indicating to IBAH that
there is no objection in terms of the Foreign Investment Policy of the
Federal Government of Australia to the acquisition by IBAH of the Shares.
7.8 Injunction. No statute, rule or regulation or order of any court or
Authority shall be in effect which prohibits the transactions contemplated by
this Agreement.
7.9 Pooling. IBAH has received a letter or other confirmation acceptable
to IBAH from Arthur Andersen & Co. LLP that the Transactions may be treated as a
pooling of interests.
7.10 Final Financial Statements. Both parties mutually agree on an
Adjusted Purchase Price if IBAH elects to reduce the Purchase Price pursuant to
Section 2(b).
7.11 IBAH Stock Price. If the average IBAH Common Stock price, as set
forth in Section 2.1(d) is below $7.25. __
8. Conditions Precedent to Obligations of the Selling Parties.
All obligations of the Selling Parties to consummate the Transactions are
subject to the satisfaction (or waiver by the Selling Party to which the
condition relates) prior thereto of each of the following conditions:
8.1 Performance of Covenants. IBAH shall have performed in all material
respects all covenants and agreements that are to be performed by it under this
Agreement on the Closing Date, including delivery of the payments specified in
Section 2, and shall have delivered to the Seller evidence, in form and
substance reasonably satisfactory to counsel to the Selling Parties, that such
covenants and agreements have been so performed.
8.2 Certificate. IBAH shall have tendered a certificate by which it
certifies to the Selling Parties that the conditions set forth in this Section 8
have been satisfied, and such certificate shall be deemed to be a representation
of IBAH hereunder.
8.3 Ancillary Documents. The Selling Parties shall have received
executed copies of the Altman Consulting Agreement, the Escrow Agreement and the
Registration Rights Agreement, to the extent that they are to be parties
thereto.
8.4 Legal Opinion. IBAH shall have tendered a legal opinion of Jane H.
Hollingsworth, General Counsel to IBAH, that is acceptable to the Seller.
9. Competition and Confidentiality by Selling Parties.
9.1 Each of the Selling Parties covenants with IBAH that it will not
without the prior written consent of IBAH within any of the following periods:
(a) at any time until the Closing Date;
(b) for a period of twelve months after the Closing Date;
(c) for a period of twelve months after the first anniversary of the
Closing Date;
(d) for a period of twelve months after the second anniversary of the
Closing Date;
and within:
(i) the states of :
(a) New South Wales;
(b) Victoria;
(c) Queensland;
(d) the Australian Capital Territory;
(e) Western Australia;
(f) South Australia;
(g) Tasmania;
(h) the Northern Territory.
(ii) anywhere else in the Commonwealth of Australia;
(iii) New Zealand;
(iv) Papua New Guinea;
(v) Pacific Islands;
(vi) Southeast Asia;
(vii) Asia;
(viii)United States of America;
do any one or more of the following:
A. be directly or indirectly engaged, concerned or interested whether
on its own account or as a member, shareholder, consultant, agent,
beneficiary, trustee or otherwise in any enterprise, corporation,
firm, trust, joint venture or syndicate which is engaged, concerned or
interested in or carrying on any Clinical Research Organisation.
B. on its own account or for any person, enterprise, firm, trust,
joint venture or syndicate entice away from IBAH any customer who has
done business with IBAH or any Related Corporation at any time;
C. on its own account or for any person, enterprise, firm, trust,
joint venture or syndicate entice away from IBAH any supplier to the
Company;
D. on its own account or for any person, enterprise, firm, trust,
joint venture or syndicate induce or attempt to induce or entice any
employee of IBAH or any Related Corporation to leave his employment or
to enter into employment with any other person, firm or company; or
E. personally or by his employees or agents or by circulars, letters
or advertisements whether on its own account or for any other person,
enterprise, firm, trust, joint venture or syndicate interfere with the
business of the Company or divulge to any person any information
including but not limited to Confidential Information concerning the
business of IBAH or any Related Corporation or any of their respective
dealings, transactions or affairs;
save that the foregoing shall not restrict the Selling Parties from holding or
acquiring (either directly or indirectly) in aggregate not more than 10% of the
issued ordinary shares in the capital of any body corporate listed on any stock
exchange, excluding, however the acquisition of shares, through whatever means,
in any CRO company.
9.2 The Selling Parties will at the request and cost of IBAH enter into a
direct agreement or undertaking with any Related Corporation of IBAH
whereby they will each accept restrictions corresponding with the
restrictions contained in this caluse (or such of them as may be
appropriate in the circumstances) which such Related Corporation may
reasonably require for the protection of its legitimate interests.
9.3 Severability
The Selling Parties acknowledge that each of the prohibitions and
restrictions contained in the foregoing provisions of this clause:
(a) shall be read and construed and shall have effect as a separate
severable and independent prohibition or restriction and shall be
enforceable accordingly;
(b) is reasonable as to period, territorial limitation and subject matter;
and
it being the intention of the parties that all combinations of such
prohibitions and restrictions shall apply and be enforceable provided that
if any of such prohibitions and restrictions is adduced by any court of
competent jurisdiction to be void or unenforceable but would otherwise be
valid if part of the wording of this clause was deleted and/or the
restrain period was reduced, those restrictions are intended to apply with
such modifications as may be necessary to make this clause valid and
effective.
9.4 Injunctive Relief
In the event of any breach by the Selling Parties of the Selling Parties'
obligations under this clause then, in addition, and without prejudice to
any other remedy which IBAH may have, IBAH shall be entitled to seek and
obtain injunctive relief in any Court of competent jurisdiction.
9.5 Clause may be read down
If a Court of competent jurisdiction should declare the prohibitions and
restrictions contained in Clause 9.1 to be unenforceable or an
unreasonable restraint of trade the Selling Parties and IBAH hereby
acknowledged and agree that such Court shall be empowered to amend or
reform Clause 9.1 so that it becomes enforceable.
10. Indemnification.
10.1 By the Selling Parties. From and after the Closing Date, to the
extent provided in this Section 10, each of the Selling Parties shall, jointly
and severally, indemnify and hold harmless IBAH and each of its successors and
assigns, and each of its officers, directors, employees, stockholders, agents,
affiliates and any Person who controls IBAH within the meaning of the Securities
Act or the Exchange Act (each, an "Indemnified Party") from and against any
liabilities, claims, demands, judgments, losses, costs, damages or expenses
whatsoever (including attorneys', consultants' and other professional fees and
disbursements of every kind, nature and description incurred by such Indemnified
Party in connection therewith) (collectively, "Damages") that such Indemnified
Party may sustain, suffer or incur and that result from, arise out of or relate
to:
(a) any breach of any representation or warranty of a Selling Party
set forth in any Transaction Document or any certificate or other writing
delivered by a Selling Party in connection herewith;
(b) any nonfulfillment of any covenant or agreement on the part of
a Selling Party in any Transaction Document;
(c) the assertion against IBAH of any liability or obligation
relating to or arising out of the Business, operations or assets of the
Company prior to the Closing Date, other than those liabilities or
obligations that are disclosed in the Company Consolidated Financial
Statements, or incurred other than the ordinary course of business between
the date of the last Company Consolidated Financial Statements as
determined under Clause 6.7 and the Closing Date; or
(d) any liability or obligation which relates to, or which involves
a claim, liability or obligation which arises out of or is based upon, any
Environmental Law to the extent that such liability or obligation relates
to or arises out of, in whole or in part, any activity occurring,
condition existing, omission to act or other matter existing prior to the
Closing Date; and
(e) any and all actions, suits, claims, proceedings, investigations,
demands, assessments, audits, fines, judgments, costs and other expenses
(including without limitation reasonable attorneys' fees and expenses)
incident to any of the foregoing or to the enforcement of this Section
10.1.
10.2 By IBAH. From and after the Closing Date, to the extent provided in
this Section 10, IBAH shall indemnify and hold harmless the Seller, his
successors and assigns (each, an "Indemnified Party") from and against any
Damages that such Indemnified Party may sustain, suffer or incur and that result
from, arise out of or relate to any breach of any representation, warranty,
covenant or agreement of IBAH contained in this Agreement.
10.3 Procedure for Claims.
(a) An Indemnified Party that desires to seek indemnification under
any part of this Section 10 shall give notice (a "Claim Notice") to each party
responsible or alleged to be responsible for indemnification hereunder (an
"Indemnitor"). Such notice shall briefly explain the nature of the claim and
shall specify the amount thereof. If the matter to which a claim relates shall
not have been resolved as of the date of the Claim Notice, the Indemnified Party
shall estimate the amount of the claim in the Claim Notice, but also specify
therein that the claim has not yet been liquidated (an "Unliquidated Claim").
If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the
Indemnified Party shall also give a second Claim Notice (the "Liquidated Claim
Notice") within 60 days after the matter giving rise to the claim becomes
finally resolved, and the Second Claim Notice shall specify the amount of the
claim. Each Indemnitor to which a Claim Notice is given shall respond to any
Indemnified Party that has given a Claim Notice (a "Claim Response") within 20
days (the "Response Period") after the later of (i) the date that the Claim
Notice is given or (ii) if a Claim Notice is first given with respect to an
Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any
Claim Notice or Claim Response shall be given in accordance with the notice
requirements hereunder, and any Claim Response shall specify whether or not the
Indemnitor giving the Claim Response disputes the claim described in the Claim
Notice. If any Indemnitor fails to give a Claim Response within the Response
Period, such Indemnitor shall be deemed not to dispute the claim described in
the related Claim Notice. If any Indemnitor elects not to dispute a claim
described in a Claim Notice, whether by failing to give a timely Claim Response
or otherwise, then the amount of such claim shall be conclusively deemed to be
an obligation of such Indemnitor.
(b) If any Indemnitor shall be obligated to indemnify an Indemnified
Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30
days after the last day of the Claim Response Period the amount to which such
Indemnified Party shall be entitled. If IBAH shall be the Indemnified Party,
it shall first request payment of the related Damages under the Escrow
Agreement, but only to the extent that Escrow Funds are then being held by the
Escrow Agent and are not subject to other claims for indemnification, and
thereafter IBAH shall seek
indemnification directly from the Selling Parties, including the offset of any
payments payable to Phillip Altman pursuant to the terms of the Altman
Employment Agreement. If there shall be a dispute as to the amount or manner of
indemnification under this Section 10, the Indemnified Party may pursue whatever
legal remedies may be available for recovery of the Damages claimed from any
Indemnitor. If any Indemnified Party fails to receive all or part of any
indemnification obligation when due, then such Indemnified Party shall also be
entitled to receive from the applicable Indemnitor or, if applicable, the Escrow
Agent, interest on the unpaid amount for each day during which the obligation
remains unpaid at an annual rate equal to the Prime Rate, and the Prime Rate in
effect on the first business day of each calendar quarter shall apply to the
amount of the unpaid obligation during such calendar quarter.
10.4 Third Party Claims. An Indemnified Party that desires to seek
indemnification under any part of this Section 10 with respect to any actions,
suits or other administrative or judicial proceedings (each, an "Action") that
may be instituted by a third party shall give each Indemnitor prompt notice of a
third party's institution of such Action. After such notice, any Indemnitor
may, or if so requested by such Indemnified Party, any Indemnitor shall,
participate in such Action or assume the defense thereof, with counsel
satisfactory to such Indemnified Party; provided, however, that such Indemnified
Party shall have the right to participate at its own expense in the defense of
such Action; and provided, further, that the Indemnitor shall not consent to the
entry of any judgment or enter into any settlement, except with the written
consent of such Indemnified Party (which consent shall not be unreasonably
withheld), that (a) fails to include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of any such Action or (b) grants the claimant or plaintiff
any injunctive relief against the Indemnified Party. Any failure to give prompt
notice under this Section 10.4 shall not bar an Indemnified Party's right to
claim indemnification under this Section 10, except to the extent that an
Indemnitor shall have been harmed by such failure.
10.5 Survival of Representations and Warranties. The representations and
warranties given or made by the Selling Parties and IBAH in this Agreement or in
any certificate or other writing furnished in connection herewith shall survive
the Closing indefinitely. Each party shall be entitled to rely upon the
representations and warranties of the other party or parties set forth herein
regardless of any investigation or audit conducted before or after the Closing
Date or the decision of any party to complete the Closing.
11. Termination.
11.1 When Agreement May be Terminated. This Agreement may be terminated:
(i) by mutual written consent of IBAH and Seller at any time prior to
Closing;
(ii) by Seller or IBAH if the other party has failed to perform in any
material respect its covenants or agreements contained herein required to be
performed on or prior to the Closing Date and such failure has not been cured
within five Business Days after written notice of such failure from the non-
breaching party;
(iii) by IBAH if there is a net loss reflected in the Closing
Financial Statements and the parties have not been able to reach mutual
agreement on the amount of the reduction of the Purchase Price; or
(iv) by IBAH, if there shall have been a change in the Company's
Business that has had a Material Adverse Effect on the Company.
11.2 Effect of Termination. In the event of termination of this Agreement
by either IBAH or Seller, this Agreement shall immediately terminate and be of
no further force and effect. Any party may pursue any legal or equitable
remedies that may be available if such termination is based on a breach of
another party.
12. Contents of Agreement.
This Agreement, together with the other Transaction Documents, sets forth
the entire understanding of the parties hereto with respect to the Transactions
and supersedes all prior agreements or understandings among the parties
regarding those matters.
13. Amendment, Parties in Interest, Assignment, Etc.
This Agreement may be amended, modified or supplemented only by a written
instrument duly executed by each of the parties hereto. If any provision of this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provision hereof, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the parties hereto. No party hereto shall assign this
Agreement or any right, benefit or obligation hereunder. Any term or provision
of this Agreement may be waived at any time by the party entitled to the benefit
thereof by a written instrument duly executed by such party. The parties hereto
shall execute and deliver any and all documents and take any and all other
actions that may be deemed reasonably necessary by their respective counsel to
complete the Transactions.
14. Interpretation.
Unless the context of this Agreement clearly requires otherwise, (a)
references to the plural include the singular, the singular the plural, the part
the whole, (b) "or" has the inclusive meaning frequently identified with the
phrase "and/or," (c) "including" has the inclusive meaning frequently identified
with the phrase "but not limited to" and (d) references to "hereunder" or
"herein" relate to this Agreement. The section and other headings contained in
this Agreement are for reference purposes only and shall not control or affect
the construction of this Agreement or the interpretation thereof in any respect.
Section, subsection, schedule and exhibit references are to this Agreement
unless otherwise specified. Each accounting term used herein that is not
specifically defined herein shall have the meaning given to it under GAAP.
15. Remedies.
None of the specific remedies provided in this Agreement for any party is
the exclusive remedy of such party for any breach of this Agreement. In
addition to any specific remedy provided herein, any party shall be entitled to
such rights and remedies as such party may have at law or in equity or otherwise
for any breach of this Agreement, including the right to seek specific
performance, rescission or restitution and to set-off against any obligations
owed, none of which rights or remedies shall be affected or diminished by the
remedies provided hereunder.
16. Notices.
All notices that are required or permitted hereunder shall be in writing
and shall be sufficient if personally delivered or sent by mail, facsimile
message or Federal Express or other delivery service. Any notices shall be
deemed given upon the earlier of the date when received at, or the third day
after the date when sent by registered or certified mail or the day after the
date when sent by Federal Express to, the address or fax number set forth below,
unless such address or fax number is changed by notice to the other party
hereto:
If to IBAH:
Jane Hollingsworth
General Counsel
IBAH, Inc.
Four Valley Square
512 Township Line Road
Blue Bell, Pennsylvania 19422
Fax: 215-542-2726
If to a Selling Party:
Dr Phillip Altman
Managing Director
Pharmaco Pty Ltd
Ground Floor, Building 1
Pymble Corporate Centre
20 Bridge Street
Pymble NSW 2072
Ph: (02) 9983 0999
Fax: (02) 9983 0900
17. Governing Law.
This Agreement shall be construed and interpreted in accordance with the
laws of the State of Delaware without regard to its provisions concerning
conflict of laws.
18. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be binding as of the date first written above, and all of which shall
constitute one and the same instrument. Each such copy shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first written above.
IBAH, INC.
By:______________________________
Name:
Title:
CATAPULT PTY., LTD.
By:______________________________
Name:
Title:
________________________________
PHILLIP ALTMAN
____________________________
JUANITA ALTMAN