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Exhibit 2.14
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into
this 13th day of July, 1999, by and among KENDLE INTERNATIONAL INC., an Ohio
corporation ("Kendle"), 3031298 Nova Scotia Limited, a Nova Scotia, Canada
corporation ("Purchaser"), HCC Health Care Communications (1991), Ltd., a
Canadian corporation ("HCC" or "Seller"), and GEOFFREY H. KALISH
("Shareholder").
RECITALS
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A. The Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, substantially all of the assets of Seller as such exist on
the Closing Date, upon the terms and conditions set forth herein.
B. The Shareholder owns all of the issued and outstanding capital stock
of HCC.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings and agreements herein made, the Parties agree as follows:
1. DEFINITIONS.
"HCC" has the meaning set forth in the preamble above and shall include
all predecessor entities.
"HCC-US" means Health Care Communications, Inc., a New Jersey
corporation.
"HCC MATERIAL ADVERSE CHANGE" has the meaning set forth in section
8(a)(xi).
"HCC MATERIAL ADVERSE EFFECT" has the meaning set forth in section 4(i)
below.
"HCC SHARE" means any share of the common stock, of HCC.
"ACT" means the Business Corporations Act (Ontario) R.S.O. 1990 c.B.16,
as amended.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders,
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decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in
settlement, Liabilities, obligations, Taxes, liens, losses, expenses and fees,
including (without limitation) court costs and reasonable attorneys' fees and
expenses.
"AFFILIATE" has the meaning attributed thereto in the Act.
"ARTICLES" means the original or restated articles of incorporation,
certificate of incorporation, articles of amalgamation, articles of arrangement,
articles of continuance, articles of reorganization, articles of revival,
letters patent, memorandum of agreement, special act or statute and any other
instrument or constating document by or pursuant to which a corporation is
incorporated or comes into existence.
"ASSUMED CONTRACTS" has the meaning set forth in section 2.1(c)(iii)
below.
"ASSUMED LIABILITIES" has the meaning set forth in section 2.1(c)
below.
"BASIS" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act or transaction that, a reasonable person would recognize,
forms or could form the basis for any specified consequence.
"BULK SALES LEGISLATION" means the Bulk Sales Act (Ontario) and the
corresponding laws and regulations of any other jurisdiction, domestic or
foreign.
"CLOSING" has the meaning set forth in section 7 below.
"CLOSING DATE" has the meaning set forth in section 7 below.
"DISCLOSURE SCHEDULE" means the disclosure schedule delivered by the
Parties hereto pursuant to section 2.1,3, and 4 below.
"DOLLARS" OR "$" means the currency of the United States.
"EARNOUT AMOUNT" shall have the meaning set forth in the U.S. Asset
Purchase Agreement.
"EMPLOYEE BENEFIT PLAN" means any (a) deferred compensation or
retirement plan or arrangement, (b) defined contribution retirement plan or
arrangement, (c) defined benefit retirement plan or arrangement or (d) Employee
Welfare Benefit Plan
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or material fringe benefit or other retirement, bonus, or incentive plan or
program, including, without limitation, the type of plans described in
section 4(m)(vii).
"EMPLOYEE WELFARE BENEFIT PLAN" means any hospitalization, medical
treatment, drug, life or other insurance or other material plan or arrangement
for the welfare of employees
"ENCUMBRANCE" means any Security Interest, warrant, option, purchase
right, preemptive right or other right or claim of any character.
"ENVIRONMENTAL LAW" means any federal, provincial or local statute,
law, rule, regulation, ordinance, code, policy or rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or Hazardous Materials, including, without limitation, the Canadian
Environmental Protection Act, R.S.C. 1985 c.C-14; the Fisheries Act (Canada),
R.S.C. 1985, c.F-15; the Transportation of Dangerous Goods Act (Canada), R. S.
C. 1985 c.T-19; the Hazardous Products Act (Canada) R.S.C. 1985, c.H-3;
Environmental Protection Act (Ontario), R.S.O. 1990 c.E-19; Ontario Water
Resources Act, R.S.O. 1990 c.O-40; the Health Protection and Promotion Act,
R.S.O. 1990 c.H-7; and their counterparts under any federal, Provincial, or
local laws or regulations.
"ESCROW AGREEMENT" means that escrow agreement dated the Closing
Dateentered into by and among Kendle, K.A.U., Inc., Purchaser, Health Care
Communications, Inc., Seller, and The Fifth Third Bank, in connection with the
U.S. Closing.
"EXCLUDED ASSETS" has the meaning set forth in section 2.1(b) below.
"EXPIRATION DATE" has the meaning set forth in section 13.
"FINANCIAL STATEMENTS" has the meaning set forth in section 4(h) below.
"GAAP" means U.S. generally accepted accounting principles, as in
effect from time to time.
"GST" means the taxes, interest, penalties and fines imposed under Part
IX of the Excise Tax Act (Canada) and the regulations made thereunder
(collectively, the "GST" Legislation").
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"HAZARDOUS MATERIALS" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing polychlorinated biphenyls, and radon gas; (b) any
chemicals, materials or substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic
pollutants," "contaminants" or "pollutants," or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material or
substance exposure to which is prohibited, limited or regulated by any
governmental authority.
"HCC Business" has the meaning set forth in section 12 below.
"INCOME TAX ACT (CANADA)" means, collectively, the Income Tax Act,
R.S.C. 1985, 5th Supplement, the Income Tax Application Rules, 1970-71-72 c.63
and the Income Tax Regulations, as amended to date and, where a reference is
made to a provision under the Income Tax Act (Canada), it shall be deemed to
include, where applicable, the Income Tax Application Rules, the Income Tax
Regulations, any Notice of Ways and Means Motion, any Bill tabled in the House
of Commons or any press release or publicly disseminated statement by the
Minister of Finance, which may result in an amendment to the Income Tax Act
(Canada), the Income Tax Application Rules or the Income Tax Regulations.
"INDEMNIFIED PARTY" has the meaning set forth in section 11(d)(i)
below.
"INDEMNIFYING PARTY" has the meaning set forth in section 11(d)(i)
below.
"INTELLECTUAL PROPERTY" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith, (c) all
copyrightable works, all copyrights, and all applications, registrations, and
renewals in connection therewith, (d) all mask works and all applications,
registrations, and renewals in connection therewith, (e) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans
and proposals), (f) all computer software (including related technical
documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
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"KENDLE" has the meaning set forth in the preface above.
"KENDLE MATERIAL ADVERSE CHANGE" has the meaning set forth in section
8(b)(vii) below.
"KENDLE SHARES" has the meaning set forth in section 2.2(a)(ii) below.
"KNOWLEDGE" means the actual knowledge of any given party plus such
additional knowledge that such person would have if such person made a
reasonably diligent inquiry with respect thereto (such inquiry not extending
beyond the books and records, property and senior management of the Seller or
the Shareholder as applicable).
"KNOWLEDGE OF THE SELLER" means the Knowledge of all directors and
officers of HCC, Geoffrey H. Kalish, M.D.,, Daniel P. Ferguson and Joe Conte.
"LIABILITY" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including (without limitation) any liability for Taxes.
"Most Recent Balance Sheet" has the meaning set forth in section 4(h)
below.
"Most Recent Financial Statements" has the meaning set forth in section
4(h) below.
"Most Recent Fiscal Year End" has the meaning set forth in section 4(h)
below.
"NON-ASSUMED LIABILITIES" has the meaning set forth section 2.1(d)
below.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTIES" means the Purchaser, Kendle, Seller and Shareholder.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
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"PURCHASE PRICE" has the meaning set forth in section 2.2(a) below.
"PURCHASER" has the meaning set forth in the preamble above.
"RELEVANT INDEMNITY SECTIONS" means, collectively, Sections 11(b)(i)
and (ii) of both this Agreement and the U.S. Asset Purchase Agreement.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable or for Taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"SELLER" has the meaning set forth in the preface above.
"SELLER'S ASSETS" has the meaning set forth in section 2.1(a) below.
"SELLER'S BUSINESS" means HCC's Business.
"SHAREHOLDER" has the meaning set forth in the preamble above.
"SUBSIDIARY" means any corporation or other entity with respect to
which a specified Person (or a Subsidiary thereof) owns a majority of the common
stock or other voting equity or has the power to vote or direct the voting of
sufficient securities to elect a majority of the directors or other governing
body.
"TAX" Means all taxes payable under any applicable Tax Legislation,
including, without limitation, income taxes, excise taxes, sales taxes, goods
and services taxes, value added taxes, transfer taxes, property taxes, capital
taxes, import and customs duties and other governmental charges and assessments,
and includes additions by way of penalties, interest, fines and other amounts
with respect thereto.
"TAX LEGISLATION" means, collectively, the Income Tax Act (Canada) and
the corresponding statute law, case law, rules, regulations, interpretation
bulletins and releases, orders and decrees of any other jurisdiction, domestic
or foreign.
"TAX RETURN" Means any tax return required to be filed under the
provisions of any applicable Tax Legislation and any tax forms required to be
filed, whether in connection with a Tax Return or not, under the provisions of
any applicable Tax Legislation.
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"THIRD PARTY CLAIM" has the meaning set forth in section 11(d)(i)
below.
"U.S. ASSET PURCHASE AGREEMENT" means the Asset Purchase Agreement
dated June 27, 1999 by and between Kendle, K.A.U., Inc., Geoffrey H. Kalish,
M.D., Bradley D. Kalish, Jill Kalish (the foregoing three individuals being
referred to as the "U.S. Shareholders") and Health Care Communications, Inc.
("HCC-US") for the acquisition of substantially all of the assets of HCC-US.
"U.S. CLOSING" means the acquisition by Kendle of all or substantially
all of the assets of HCC-US C.
2.1. PURCHASE AND SALE OF ASSETS.
(a) SALE OF ASSETS. Subject to, and effective as of, the
Closing, Seller, upon the terms and conditions hereinafter set forth, hereby
sells, assigns, conveys, transfers and delivers to Purchaser, free and clear of
all Encumbrances, all of the assets, rights, properties, claims, contracts and
business of the Seller at the Closing Date of every kind, nature, character and
description, tangible and intangible, real, personal or mixed, wherever located
(the "Seller's Assets"), including but not limited to the following:
(i) Equipment and Other Tangible Property. All
vehicles, equipment, furniture, supplies and
all other tangible personal property used in
or intended for use in the operation of
Seller's Business and owned by Seller
(collectively, the "Equipment"), and all
warranties, and guaranties, if any, express
or implied, existing with respect to the
Equipment for the benefit of Seller.
(ii) Records. All of Seller's records, financial
and non-financial, relating to present and
past operations of Seller's Business,
whether in the possession or under the
control of the Seller or Shareholder.
(iii) Contracts. All contracts, oral or written,
including but not limited to, outstanding
customer contracts, contracts for goods or
supplies or other items used in the
operation of Seller's Business, to which
Seller is a party.
(iv) Real Property. All leasehold interests in
real property leased by Seller in the
operation of Seller's Business.
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(v) Intangible Assets. All intangible assets of
HCC relating to Seller's Business relating
to its past, current and presently
contemplated future services and/or products
for HCC's business and all of Seller's
rights, title and interests in and to the
patents, patent registrations, patent
applications, trademarks, trademark
applications, trademark registrations,
service marks, service mark applications,
service mark registrations, trade names,
copyrights, copyright applications,
copyright registrations, permits, licenses,
processes, formulas, inventions, trade
secrets and royalties (including any rights
to sue for breach or past infringement)
owned by Seller and relating to Seller's
Business, including, but not limited to, all
rights possessed by Seller in and to the
name "HCC Health Care Communications,(1991)
Ltd."
(vi) Governmental Permits and Licenses. All
permits, licenses, consents and any other
forms of governmental approval possessed by
Seller as have been or are required or are
appropriate for the operation of Seller's
Business as it is currently being operated.
(vii) Goodwill. All goodwill related to the
operation of Seller's Business.
(viii) Accounts Receivable. All accounts receivable
of Seller in existence on the Closing Date,
including all notes, bonds and other
evidences of such accounts receivable.
(ix) Cash/Prepaid Expenses. The cash held in the
cash accounts of Seller listed on section
2.1(a)(ix) of Disclosure Schedules, and all
prepaid expenses of Seller in existence as
of the Closing Date which have benefit to
Seller's Business after the Closing.
(x) MIS and Materials. All management
information systems and software owned by
Seller and all customer, subscriber and
vendor lists, catalogs, research material,
technical information, technology,
specifications, designs, drawings,
processes, and quality control data owned by
Seller.
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(xi) Warranties. All other warranties existing
for the benefit of Seller or owned by Seller
related to the operation of Seller's
Business.
(xii) Other Assets. All other assets of Seller
used or useful in the operation of Seller's
Business.
(b) EXCLUDED ASSETS. Notwithstanding the provisions of
section 2.1(a) hereof, Seller is not selling and Purchaser is not purchasing
(and therefore the term "Seller's Assets" shall not include) the following
(collectively, the "Excluded Assets"):
(i) Seller's rights, claims or causes of action
against third parties relating to the
assets, properties, business or operations
of Seller which may arise in connection with
the discharge by Seller of Non-Assumed
Liabilities.
(ii) All corporate minute books, stock transfer
books and other corporate records having to
do with the corporate organization and
capitalization of Seller and the corporate
seal of Seller.
(iii) All refunds of any Tax which Seller or any
Shareholder has paid.
(iv) Shares of the capital stock of the Seller,
including, without limitation, shares held
by the Seller as treasury shares.
(v) The right of Seller to enforce the
obligations of the Purchaser to pay, perform
or discharge the liabilities and obligations
of Seller assumed by Purchaser herein and
all other rights of Seller under this
Agreement and the agreements executed in
connection herewith.
(vi) Any and all employment agreements, and
employment related contracts and employment
related understandings between Seller and
any of Seller's employees.
(vii) Any and all agreements, contracts and
understandings, and any bank or investment
accounts, relating to any
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Employee Benefit Plan, program, agreement or
arrangement maintained by Seller.
(viii) Any and all books and records relating to
the lawsuits and/or claims described on
section 4(q) of the Disclosure Schedule.
(ivii) That amount of cash equal to the sum of (a)
all checks which (1) have been written and
dispatched to the payee thereof but (2) have
not yet been collected (i.e., withdrawn from
the Seller's account(s)) and (b) an amount
equal to the total sum of (x) all payroll,
(y) all payroll taxes (e.g. CPP, EI, etc.)
(the employer's portion as well as the
employee's portion) and (z) all income tax
withholdings from employee salaries, which,
in the case of each of (x), (y) and (z),
shall have accrued (i.e., which shall
ultimately be due and payable to one or more
tax authorities or the relevant employees,
as the case may be), as of the close of
business on the Closing Date, in respect of
the "current" pay period (i.e., the pay
period during which the Closing Date shall
fall).
(x) Any and all insurance policies.
(c) ASSUMED LIABILITIES. Subject to, and effective as of the
Closing, Purchaser hereby assumes, and agrees to pay and perform in accordance
with their respective terms, the following specific liabilities:
(i) Those specific liabilities listed on section
2.1(c)(i) of the Disclosure Schedules.
(ii) All accounts payable and accrued expenses of
the Seller, existing as of the close of
business on the Closing Date, which shall
have arisen in the Ordinary Course of
Business.
(iii) All obligations arising or to be performed
after the Closing Date under those
contracts, policies, purchase orders, leases
of real and personal property and other
obligations which are set forth or referred
to on section 2.1(c)(iii) of the Disclosure
Schedule (which shall be subject to updating
in accordance with section 5(g) hereof)
("Assumed Contracts") only to the extent
that such
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contracts, purchase orders, leases and other
obligations are validly assigned to
Purchaser (and, in the case of rental
payments under leases of real or personal
property, only to the extent that such
rental payments relate to periods after the
Closing Date) (collectively, with the other
liabilities assumed by Purchaser pursuant to
section 2.1(c)(i) and (ii), the "Assumed
Liabilities"). Notwithstanding the
foregoing, all executory contracts with
third parties set forth on section
2.1(c)(ii) of the Disclosure Schedule shall
be assigned by Seller and assumed by
Purchaser, but only with respect to the
executory portions thereof such that
Purchaser shall be obligated to render any
performance required by such contracts
arising or to be performed after the Closing
Date, but any obligations or liabilities
under such contracts arising or to be
performed prior to the Closing Date shall
remain solely the responsibility of Seller.
(d) SELLER'S LIABILITIES GENERALLY NOT ASSUMED. Except as set
forth in this Agreement, Purchaser is not, (i) by reason of its purchase of the
Seller's Assets, (ii) by reason of any other act or failure to act on its part
in connection with the transactions contemplated by this Agreement, or (iii) for
any other reason, assuming any Liabilities or obligations of Seller whatsoever
and shall not become liable in any manner for any Liabilities or obligations of
the Seller.
Without limiting the generality of the foregoing and
notwithstanding any other provision hereof, each of the following is a Liability
of the Seller that Purchaser does not assume (all Liabilities of Seller not
assumed under this Agreement being, collectively, the "Non-Assumed
Liabilities"):
(i) any Liability of the Seller arising from
indebtedness for borrowed money or long-term
debt of the Seller;
(ii) other than the Assumed Liabilities, any
Liability of the Seller arising from, or in
connection with, the conduct of the Seller's
Business or the ownership of the Seller's
Assets by the Seller prior to the Closing
Date, including, without limitation, all
liabilities arising by reason of any
violation by the Seller, by acts or events
or omissions arising or occurring prior to
the Closing Date, of any federal, state or
local law, rule, regulation, ordinance or
any requirement of any government authority;
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(iii) any Liability of the Seller relating to the
operation of Seller's Business prior to the
Closing Date for Taxes owed to any taxing
authority (including, without limitation,
any transfer or sales Taxes incurred in
connection with the transactions
contemplated hereby);
(iv) any Liability of the Seller arising out of
or related to past, present or future
litigation involving the Seller as the owner
and operator of the Seller's Business or the
Assets prior to the Closing Date;
(v) any Liability in respect of any contract to
which the Seller is a party or beneficiary
which is not a contract included in the
Seller's Assets or otherwise assigned or
transferred or subcontracted to Purchaser
pursuant to this Agreement;
(vi) any Liability accruing prior the Closing
Date under any Employee Benefit Plan of or
sponsored by the Seller;
(vii) any Liability arising out of the employment
or termination of employment by Seller, in
either case at or prior to the Closing Date,
of any person employed in the Seller's
Business, including, without limitation, any
Liability for accrued vacation pay for
Seller employees and any Liability for
severance pay;
(viii) any Liability of the Seller or any present
or former director or officer of the Seller
arising from any claim, action or
proceeding, including, without limitation,
any derivative action, brought by or on
behalf of any present or former holder of
any debt or equity security of the Seller or
by any lender to the Seller, including,
without limitation, any Liability arising
from any indemnification, reimbursement or
advance in connection therewith;
(ix) any Liability listed on section 2.1(d)(ix)
of the Disclosure Schedule; and,
(x) any other Liability of the Seller which is
not an Assumed Liability.
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NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY,
PURCHASER SHALL NOT ASSUME OR BECOME LIABLE IN ANY MANNER FOR ANY LIABILITY OR
OBLIGATION OF THE SELLER, AND THE SELLER SHALL REMAIN SOLELY RESPONSIBLE FOR,
ANY AND ALL LIABILITIES AND OBLIGATIONS OF THE SELLER, OTHER THAN THE ASSUMED
LIABILITIES.
(e) AGREED CLOSING TIME. Unless the Parties otherwise agree in
writing, the transfer of assets and assumption of liabilities contemplated
herein shall be deemed effective as of the close of business on the Closing
Date.
2.2 PURCHASE PRICE.
(a) PURCHASE PRICE. At the Closing, Kendle shall pay the Seller a
purchase price of Twenty Thousand Dollars (U.S.) ($20,000) (the "Purchase
Price"), to be paid in cash.
(b) CLOSING PRORATIONS
(i) PERSONAL PROPERTY TAXES. All personal
property Taxes relating to any and all
personal property conveyed pursuant to this
Agreement shall be pro-rated between
Purchaser and the Seller in accordance with
the relationship of the Closing Date to the
entire relevant Tax year. Subject to the
rest of this section h(i), any payment owed
in respect of such pro-ration shall be made
at Closing. If the amount of said personal
property Taxes is not known at the Closing,
then such personal property Taxes shall be
apportioned on the basis of the personal
property Taxes assessed for the preceding
Tax year, with a reapportionment as soon as
the new Tax rate and valuation can be
ascertained.
(ii) UTILITIES. All utility charges relating to
any locations of the Seller covered by real
property leases constituting Assumed
Contracts shall be pro-rated between
Purchaser and the Seller in accordance with
the relationship of the Closing Date to the
entire relevant period covered by such
charge.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
(a) REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder represents and warrants to Kendle that the statements contained in
this
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section 3(a) are correct and complete as of the date of this Agreement with
respect to himself
(i) AUTHORIZATION OF TRANSACTION. Such
Shareholder has full power and authority to
execute and deliver this Agreement and to
perform his or her obligations hereunder.
This Agreement constitutes the valid and
legally binding obligation of such
Shareholder, enforceable against him or her
in accordance with its terms and conditions.
Such Shareholder need not give any notice
to, make any filing with, or obtain any
authorization, consent, or approval of any
government or governmental agency in order
to consummate the transactions contemplated
by this Agreement.
(ii) NONCONTRAVENTION. Neither the execution and
the delivery of this Agreement by such
Shareholder, nor the consummation by him or
her of the transactions contemplated hereby,
will (A) violate any constitution, statute,
regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other
restriction of any government, governmental
agency, or court to which such Shareholder
is subject or (B) conflict with, result in a
breach of, constitute a default under,
result in the acceleration of, create in any
party the right to accelerate, terminate,
modify, or cancel, or require any notice
under any agreement, contract, lease,
license, instrument, or other arrangement to
which such Shareholder is a party or by
which he or she is bound or to which any of
his or her assets is subject.
(iii) BROKERS' FEES. Such Shareholder has no
liability or obligation to pay any fees or
commissions to any broker, finder, or agent
with respect to the transactions
contemplated by this Agreement for which
Kendle could become liable or obligated.
(iv) HCC SHARES. Such Shareholder holds of record
and owns beneficially 100% of the issued and
outstanding HCC Shares, free and clear of
any Encumbrances other than restrictions on
transfer imposed by applicable securities
laws and regulations, and by the Articles of
HCC. Such Shareholder is not a party to any
voting trust, proxy, or other agreement or
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understanding with respect to the voting of
any capital stock of HCC.
(b) REPRESENTATIONS AND WARRANTIES OF PURCHASER AND KENDLE.
Each of Purchaser and Kendle represents and warrants to the Sellers that the
statements contained in this Section 3(b) are correct and complete as of the
date of this Agreement.
(i) ORGANIZATION OF KENDLE. Purchaser is a
corporation organized, validly existing and
in good standing in the Province of Nova
Scotia, Canada. Kendle is a corporation
organized, validly existing and in good
standing under the laws of the State of
Ohio.
(ii) AUTHORIZATION OF TRANSACTION. Each of
Purchaser and Kendle has full power and
authority (including full corporate power
and authority) to execute and deliver this
Agreement and to perform its obligations
hereunder. This Agreement constitutes the
valid and legally binding obligation of
Purchaser and Kendle, enforceable against
each in accordance with its terms and
conditions. Assuming the truth and
correctness of the Seller's statements in
section 4(y) of this Agreement, neither
Purchaser or Kendle need give any notice to,
make any filing with, or obtain any
authorization, consent, or approval of any
government or governmental agency in order
to consummate the transactions contemplated
by this Agreement.
(iii) NONCONTRAVENTION. Neither the execution and
the delivery of this Agreement by Purchaser
and Kendle, nor the consummation by them of
the transactions contemplated hereby, will
(A) violate any constitution, statute,
regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other
restriction of any government, governmental
agency or court to which Purchaser or Kendle
is subject or any provision of its charter
or bylaws or (B) conflict with, result in a
breach of, constitute a default under,
result in the acceleration of, create in any
party the right to accelerate, terminate,
modify, or cancel, or require any notice
under any material agreement, contract,
lease, license, instrument, or other
arrangement to which Kendle or Purchaser is
a party
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or by which it is bound or to which any of
its assets is subject.
(iv) ULTIMATE PARENT. The Purchaser is ultimately
controlled by a WTO Investor for the purpose
of the Investment Canada Act.
(v) BROKERS' FEES. Neither Purchaser nor Kendle
has any Liability or obligation to pay any
fees or commissions to any broker, finder,
or agent with respect to the transactions
contemplated by this Agreement for which any
Shareholder or Seller could become liable or
obligated.
4. REPRESENTATIONS AND WARRANTIES CONCERNING HCC. The Seller and the
Shareholder, jointly and severally, represent and warrant to Kendle that the
statements contained in this section 4 are correct and complete as of the date
of this Agreement except as set forth in the Disclosure Schedule.
(a) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. HCC is a
corporation organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation. HCC is duly authorized to conduct
business and is in good standing under the laws of each jurisdiction set forth
in section 4(a) of the Disclosure Schedule and the failure to so qualify in any
other jurisdiction will not result in an HCC Material Adverse Change. Section
4(a) of the Disclosure Schedule lists the directors and officers of HCC. The
Seller has delivered to Kendle correct and complete copies of the Articles and
bylaws of HCC (as amended to date). HCC is not in default under or in violation
of any provision of its Articles or bylaws.
(b) CAPITALIZATION. The authorized capital stock of HCC
consists of One Hundred (100) HCC Shares, of which One Hundred (100) HCC Shares
are issued and outstanding. All of the issued and outstanding HCC Shares have
been duly authorized, are validly issued, fully paid and nonassessable, and are
held of record and beneficially by the Shareholder. Except as set forth in
section 4(b) of the Disclosure Schedule, there are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require HCC to
issue, sell, or otherwise cause to become outstanding any of its capital stock.
There are no outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to HCC. HCC is not a party to any
voting trusts, proxies, or other agreements or understandings with respect to
the voting of the capital stock of HCC.
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(c) NONCONTRAVENTION. Neither the execution and the delivery
of this Agreement by HCC, nor the consummation by it of the transactions
contemplated hereby, will (i) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which HCC is subject or any
provision of the Articles or bylaws of HCC or (ii) except as set forth in
section 4(c) of the Disclosure Schedule, conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any material agreement, contract, lease, license instrument to which HCC
is a party or by which it is bound or to which any of its assets is subject; or
(iii) result in the imposition of any Security Interest upon any of its assets.
HCC does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for it to consummate the transactions contemplated by this Agreement.
(d) BROKERS' FEES. HCC has no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent (other than Vector
Securities International, Inc.) with respect to the transactions contemplated by
this Agreement.
(e) TITLE TO ASSETS. HCC has good and valid title to, or a
valid leasehold or license interest in, the properties and assets used by it, or
shown on the Most Recent Balance Sheet or acquired after the date thereof, free
and clear (as to owned assets) of all Security Interests and other Encumbrances,
excepting only (i) properties and assets disposed of in the Ordinary Course of
Business since the date of the Most Recent Balance Sheet and (ii) certain other
properties and assets, not involving in the aggregate more than Twenty Five
Thousand Dollars ($25,000.00), disposed of other than in the Ordinary Course of
Business.
(f) CONDITION OF ASSETS. Each item of tangible personal
property, including, without limitation, Equipment, included in the Seller's
Assets and having a net book value in excess of $5,000, is in reasonable
operating condition and in reasonable state of repair, ordinary wear and tear
excepted. section 4(f) of the Disclosure Schedules sets forth all equipment with
a net book value in excess of $5,000 and shall be delivered at Closing.
(g) SUBSIDIARIES. HCC has no direct or indirect equity or
ownership interest in any other business.
(h) FINANCIAL STATEMENTS. Attached hereto as Section 4(h)
are (i) the draft unaudited balance sheet and statements of income and retained
earnings for HCC as of December 31, 1998 for the seven months then ended and
(ii) the draft unaudited balance sheet and statements of income and retained
earnings and cash flow as of and for the fiscal year ended April 30, 1999 for
the eleven months then ended (collectively the "FINANCIAL STATEMENTS"). All
Financial Statements have been prepared in accordance with GAAP applied on a
consistent basis throughout the
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periods covered thereby (except for the absence of any notes thereto), present
fairly in all material respects the financial condition of HCC as of such dates
and the results of operations of HCC for such periods and are consistent with
the books and records of HCC. The aforementioned Financial Statements which are
as of, and for the eleven months ended, April 30, 1999 shall be collectively
referred to as the "Most Recent Financial Statements". "Most Recent Fiscal Year
End" shall refer to April 30, 1999 and "Most Recent Balance Sheet" shall refer
to the unaudited balance sheet of the Seller as of April 30, 1999.
(i) LEGAL COMPLIANCE. HCC is in compliance with all applicable
laws (including rules, regulations, codes, plans, injunctions, judgments,
orders, decrees, rulings, and charges thereunder) of federal, Provincial, local,
and foreign governments (and all agencies thereof), except where such failure to
comply would not, individually or in the aggregate, have a material adverse
effect on the business, assets, liabilities, income, financial condition,
operations or results of operations of HCC (an "HCC Material Adverse Effect");
and, to the Knowledge of the Seller and Shareholders, no action, suit,
proceeding, hearing or investigation, and no written charge, complaint, claim,
demand, or notice has been filed or commenced against him or her or HCC alleging
any such failure to comply.
(j) TAX MATTERS.
(i) Except as set forth on section 4(j) of the
Disclosure Schedule, HCC has filed all Tax Returns
that it was required to file, giving effect to any
and all extensions obtained. All such Tax Returns
were correct and complete in all respects. All
Taxes owed by HCC (whether or not shown on any Tax
Return) have been paid. Except as set forth on
section 4(j) of the Disclosure Schedule, HCC is
not currently the beneficiary of any extension of
time within which to file any Tax Return. To the
Knowledge of the Seller and the Shareholder, no
claim has ever been made by an authority in a
jurisdiction where HCC does not file Tax Returns
that it is or may be subject to taxation by that
jurisdiction. There are no Security Interests on
any of the assets of HCC that arose in connection
with any failure (or alleged failure) to pay any
Tax.
(ii) HCC has withheld and paid all Taxes required to
have been withheld and paid in connection with
amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third
party.
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(iii) Neither the Seller nor the Shareholder expects any
authority to assess any additional Taxes for any
period for which Tax Returns have been filed.
There is no dispute or claim concerning any Tax
Liability of HCC either (A) claimed or raised by
any authority in writing or (B) as to which the
Shareholder or the Seller has Knowledge based upon
personal contact with any agent of such authority
section 4(j) of the Disclosure Schedule lists all
federal, Provincial, local, and foreign income Tax
Returns filed by HCC for taxable periods ended on
or after December 31, 1994, indicates those Tax
Returns that, to the Knowledge of the Seller and
the Shareholder, have been audited, and indicates
those Tax Returns that, to the knowledge of the
Seller and the Shareholder, currently are the
subject of audit. The Seller has delivered to
Kendle correct and complete copies of all
examination reports received by Seller, and
statements of deficiencies assessed against or
agreed to by HCC, since December 31, 1994.
(iv) HCC has not, since December 31, 1994, waived any
statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a
Tax assessment or deficiency.
(v) the Seller is not a non-resident of Canada within
the meaning of the Income Tax Act (Canada). The
Seller is registered for purposes of the GST
Legislation and its registration number is
R129959102 This Agreement provides for the sale to
the Purchaser of all or substantially all of the
property used in a commercial activity that forms
all or part of the Business carried on by the
Seller.
(k) REAL PROPERTY.
(i) HCC owns no real property.
(ii) Section 4(k)(ii) of the Disclosure Schedule lists
all real property leased or subleased to HCC (as
well as the related lease or sublease). The Seller
has delivered to Kendle correct and complete
copies of the leases and subleases listed in
section 4(k)(ii) of the Disclosure Schedule (as
amended to date). With respect to each
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lease and sublease listed in section 4(k)(ii) of
the Disclosure Schedule:
(A) to the Knowledge of the Shareholder, the
lease or sublease is in full force and effect and will
continue to be in full force and effect on identical terms
following the consummation of the transactions contemplated
hereby;
(B) to the Knowledge of the Shareholder, no
party to the lease or sublease is in material breach or
material default or has repudiated such lease or sublease, and
to the Knowledge of the Shareholder, no event has occurred
which, with notice or lapse of time, would constitute a
material breach or material default or permit termination,
modification, or acceleration thereunder;
(C) HCC has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or encumbered any
interest in the leasehold or subleasehold;
(D) all facilities leased or subleased
thereunder are supplied with utilities and other services and,
to the Knowledge of Seller and the Shareholder, have all
licenses and permits that are material for the operation of
HCC's business as presently conducted thereat and as presently
proposed to be conducted thereat; and
(E) to the Knowledge of the Shareholder, the
owner of each facility leased or subleased to HCC has good and
marketable title to the parcel of real property free and clear
of any Security Interest other than Security Interests that do
not materially impair HCC's use of such facility.
(l) INTELLECTUAL PROPERTY.
(i) HCC owns or has the right to use pursuant to
ownership, license, sublicense, agreement,
or permission all Intellectual Property that
is material to the operation of Seller's
Business as presently conducted and as
presently proposed to be conducted. Except
as set forth on section 4(l) of the
Disclosure Schedule, each such material item
of Intellectual Property will be owned or
available for use by the Purchaser on
identical terms and conditions immediately
subsequent to the Closing hereunder.
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(ii) Except as set forth in section 4(l) of the
Disclosure Schedule, neither the Shareholder
nor the Seller has, within the last 3 years,
received any written charge, complaint,
claim, demand, or notice alleging any
interference, infringement,
misappropriation, or violation by HCC of the
Intellectual Property rights of any third
party (including any claim that HCC must
license or refrain from using any
Intellectual Property rights of any third
party). To the Knowledge of Shareholder and
HCC, no third party has interfered with,
infringed upon, misappropriated, or
otherwise come into conflict with any
Intellectual Property rights of any of HCC.
(iii) There is no copyright, copyright
registration, copyright mask, work,
copyright application or derivative works
from any copyright whether published or
unpublished which is material to the
operation of Seller's Business.
(iv) Section 4(l)(iv) of the Disclosure Schedule
identifies each patent or registration which
has been issued to HCC with respect to any
of its Intellectual Property, identifies
each pending patent application or
application for registration which HCC has
made with respect to any of its Intellectual
Property, and identifies each license,
agreement, or other permission (other than
routine permissions granted in the Ordinary
Course of Business) which HCC has granted to
any third party with respect to any of its
Intellectual Property (together with any
exceptions). The Seller has delivered to
Kendle correct and complete copies of all
such patents, registrations, applications,
licenses, agreements, and permissions (as
amended to date) and have made available to
Kendle correct and complete copies of all
other written documentation evidencing
ownership and prosecution (if applicable) of
each such item. Section 4(l)(iv) of the
Disclosure Schedule also identifies each
trade name or unregistered trademark used by
HCC in connection with Seller's Business.
With respect to each item of Intellectual
Property required to be identified in
section 4(l)(iv) of the Disclosure Schedule:
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(A) HCC has all right, title, and interest
in and to the item, free and clear of any Security Interest,
license, or other restriction; provided, however, that
Purchaser acknowledges the following: (1) by definition, no
one can ever be said to have the perpetual right to ownership
or use of a trademark, since any rights thereto derive from
the continued use thereof; (2) any representations herein
regarding Seller's ownership and/or use of any Intellectual
Property apply solely to use and/or ownership within Canada,
and (3) any representations herein regarding Seller's
ownership and/or use of any trademark relate solely to its
ownership and/or use in connection with the conduct of
Seller's Business.
(B) the item is not subject to any
outstanding injunction, judgment, order, decree, ruling, or
charge;
(C) no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against HCC
is pending or, to the Knowledge of HCC, threatened which
challenges the legality, validity, enforceability, use, or
ownership of the item; and
(D) HCC has not agreed to indemnify any
Person for or against any interference, infringement,
misappropriation, or other conflict with respect to the item.
(v) Section 4(l)(v) of the Disclosure Schedule
identifies each item of Intellectual
Property that any third party owns and that
HCC uses pursuant to license, sublicense,
agreement, or permission (except for routine
permissions obtained by HCC in the Ordinary
Course of Business). The Seller has
delivered to Kendle correct and complete
copies of all such licenses, sublicenses,
agreements, and permissions (as amended to
date). With respect to each item of
Intellectual Property required to be
identified in section 4(m)(v) of the
Disclosure Schedule:
(A) to the Knowledge of the Shareholder, (1)
the license, sublicense, agreement, or permission covering the
item is in full force and effect and (2) if assigned to
Purchaser under this Agreement, will continue to be in full
force and effect on identical terms following the consummation
of the transactions contemplated hereby (including the
assignments and assumptions referred to in section 2 above);
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(B) to the Knowledge of the Shareholder, (1)
no party to the license, sublicense, agreement, or permission
is in material breach or material default or has repudiated
such license, sublicense, agreement or permission, and (2) no
event has occurred which with notice or lapse of time would
constitute a material breach or material default or permit
termination, modification, or acceleration thereunder;
(C) to the Knowledge of the Seller and the
Shareholder, the underlying item of Intellectual Property is
not subject to any outstanding injunction, judgment, order,
decree, ruling, or charge;
(D) no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand is pending
against HCC or, to the Knowledge of the Shareholder and HCC,
is threatened which challenges the legality, validity, or
enforceability of the underlying item of Intellectual
Property; and
(E) HCC has not granted any sublicense or
similar right with respect to the license, sublicense,
agreement, or permission.
(vi) To the Knowledge of the Shareholder and HCC,
HCC will not interfere with, infringe upon,
misappropriate, or otherwise come into
conflict with, any Intellectual Property
rights of third parties as a result of the
continued operation of its businesses as
presently conducted and as presently
proposed to be conducted.
(vii) To the Knowledge of the Seller and the
Shareholder, the technology of HCC is "Year
2000 Compliant" in that it correctly
performs all date-related operations (A)
without human intervention, other than
original data entry of any date, (B) without
regard to whether any date involved in the
operation occurs in the twentieth or
twenty-first centuries and (C) without
regard to the system date at the time the
calculation is performed. Without limiting
the foregoing, Year 2000 Compliant means
that technology (1) accepts as input (by key
entry or otherwise) fully specified dates
(four-digit year, month and day of month),
(2) if two-digit year specifications are
accepted as input, correctly translates such
dates without human intervention into fully
specified dates in a manner that
unambiguously preserves the user's intent in
light of
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the application context, (3) performs all
date-related arithmetic and logical
operations correctly (for example, January
2, 2000 is greater than December 31, 1999;
January 2, 2000 minus December 31, 1999
equals two days), (4) sorts date-related
information in correct chronological order,
(5) otherwise correctly processes (updates,
maintains, reports) dates, and (6) stores
internal, date-related information
(including all interim date-related results)
in a manner that is unambiguous (in the
context of software processing) as to
century and permits all of the foregoing to
occur correctly without human intervention;
(m) CONTRACTS. Section 4(m) of the Disclosure Schedule lists
the following contracts and other agreements to which HCC is a party:
(i) any agreement (or group of related
agreements) for the lease of personal
property (other than capitalized lease
obligations) to or from any Person which
obligates the lessee to make lease payments
in excess of Twenty Five Thousand Dollars
($25,000) per annum;
(ii) any agreements or contracts with customers,
any agreement (or group of related
agreements) for the purchase or sale of raw
materials, commodities, supplies, products,
or other personal property, or for the
furnishing or receipt of services, the
performance of which extends over a period
of more than one year, or which obligates
either party to pay consideration in excess
of Twenty Five Thousand Dollars ($25,000);
(iii) any agreement creating or amending a
partnership or joint venture;
(iv) any agreement (or group of related
agreements) under which HCC has created,
incurred, assumed, or guaranteed any
indebtedness for borrowed money, or any
capitalized lease obligation, in excess of
Twenty Five Thousand Dollars ($25,000);
(v) any agreement imposing upon HCC
confidentiality or noncompetition
obligations other than standard provisions
in contracts with HCC's customers;
(vi) any agreement with the Shareholder or his
Affiliates;
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(vii) any profit sharing, stock option, stock
purchase, phantom stock, stock appreciation,
deferred compensation, supplemental
unemployment retirement, pension,
supplemental pension, severance, or
termination pay, hospitalization, medical
treatment, drug, life or other insurance, or
other material plan or arrangement for the
benefit of its current or former directors,
officers, and employees whether oral or
written, formal or informal.
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any
individual on a full-time, part-time,
consulting, or other basis obligating HCC to
pay annual compensation in excess of Twenty
Five Thousand Dollars ($25,000) or providing
severance benefits in excess of Twenty Five
Thousand Dollars ($25,000);
(x) any agreement under which it has advanced or
loaned any amount to any of its directors,
officers, and employees outside the Ordinary
Course of Business; or
(xi) any other agreement (or group of related
agreements) the performance of which
obligates either party to pay consideration
in excess of Twenty Five Thousand Dollars
($25,000).
The Seller has delivered to Kendle a correct and complete copy of each
written agreement listed in section 4(m) of the Disclosure Schedule (as amended
to date) and a written summary setting forth the material terms and conditions
of each oral agreement referred to in section 4(m) of the Disclosure Schedule.
With respect to each such agreement: (A) to the Knowledge of the Seller, the
agreement is in full force and effect; (B) to the Knowledge of the Seller, the
agreement (if assigned to the Purchaser) will continue to be in full force and
effect on identical terms following the consummation of the transactions
contemplated hereby; (C) to the Knowledge of the Seller, no party is in material
breach or material default, and no event has occurred which with notice or lapse
of time would constitute a material breach or material default, or permit
termination, modification, or acceleration, under the agreement; and (D) to the
Knowledge of the Seller, no party has repudiated any provision of the agreement.
Except as listed on section 4(m) of the Disclosure Schedule, HCC is not a party
to any contract or agreement, relating to provision by HCC of services to any
federal, state or local government, governmental agency or other governmental
authority.
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(n) NOTES AND ACCOUNTS RECEIVABLE. All notes and all accounts
receivable of HCC are reflected properly on their books and records, are valid
receivables and, to the Knowledge of the Seller, (i) are subject to no setoffs
or counterclaims, (ii) are current and collectible, and (iii) will be collected
in accordance with their terms at their recorded amounts, subject only to a
reserve for bad debts in accordance with the past custom and practice of HCC.
section 4(n) of the Disclosure Schedule lists (or will be updated to list, as
the case may be) all accounts payable and accrued expenses of the Seller as of
five (5) business days prior to the date hereof and prior to the Closing Date.
(o) POWERS OF ATTORNEY. There are no outstanding powers of
attorney executed on behalf of HCC.
(p) INSURANCE. Section 4(p) of the Disclosure Schedule sets
forth the following information with respect to each insurance policy (including
policies providing property, casualty, liability, and workers' compensation
coverage and bond and surety arrangements) to which HCC is a party, a named
insured, or otherwise the beneficiary of coverage:
(i) the name of the insurer and the name of the
policyholder;
(ii) the type of policy; and
(iii) the policy number.
With respect to each such insurance policy: (A) to the Knowledge of the
Shareholder, the policy is in full force and effect; (B) to the Knowledge of the
Shareholder, neither HCC nor any other party to the policy is in material breach
or material default (including with respect to the payment of premiums or the
giving of notices), and, to the Knowledge of the Shareholder, no event has
occurred which, with notice or the lapse of time, would constitute such a
material breach or material default, or permit termination, modification, or
acceleration, under the policy; and (C) to the Knowledge of the Shareholder, no
party to the policy has repudiated any provision thereof. HCC is covered by
insurance in scope and amount reasonable for the businesses in which it is
engaged.
(q) LITIGATION. Section 4(q) of the Disclosure Schedule sets
forth each instance in which HCC (i) is subject to any outstanding injunction,
judgment, order, decree, ruling, or charge of any court or other such tribunal
or (ii) is a party or, to the Knowledge of the Seller, Shareholder and the
directors and officers (and employees with responsibility for litigation
matters) of HCC, is threatened to be made a party to any action, suit,
proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, Provincial, local, or
foreign
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jurisdiction or before any arbitrator. None of the actions, suits, proceedings,
hearings, and investigations set forth in section 4(q) of the Disclosure
Schedule would reasonably be expected, if adversely determined, to result in any
HCC Material Adverse Change. Neither HCC nor the Shareholder is aware of any
fact or circumstances that would reasonably be expected to give rise to any
action, suit, proceeding, hearing, or investigation against HCC.
(r) EMPLOYEE BENEFITS.
(i) Section 4(r) of the Disclosure Schedule
lists each Employee Benefit Plan that HCC
maintains or to which HCC contributes or has
any obligation to contribute.
(A) All premiums or other payments for all
periods ending on or before the Closing Date have been or will
be paid with respect to each such Employee Benefit Plan.
(B) HCC does not sponsor, administer, or
provide any deferred compensation pension or other plan which
is required to be registered with any applicable regulatory
authority.
(ii) HCC and to HCC's knowledge any other Person
or entity responsible for the administration
of each Employee Benefit Plan has
administered each of such Plans in
accordance with the terms of the Plans and
with the requirements of all applicable laws
and regulatory authorities.
(iii) HCC does not maintain or ever has maintained
and does not contribute, ever has
contributed, or ever has been required to
contribute to any Employee Welfare Benefit
Plan providing medical, health, or life
insurance or other welfare-type benefits for
current or future retired or terminated
employees, their spouses, or their
dependents.
(s) GUARANTIES. HCC is not a guarantor of, or, to the
Knowledge of the Seller and the Shareholder, liable as a surety for, any
Liability or obligation (including indebtedness) of any other Person.
(t) ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS.
Except as disclosed in section 4(t) of the Disclosure Schedule:
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(i) Hazardous Materials have not at any time
been generated, used, treated or stored by
HCC in violation in any material respect of
any applicable Environmental Law, or in any
way which will hereafter require material
remedial action under any applicable
Environmental law, and HCC has not received
any notice of any such violation with
respect to Hazardous Materials;
(ii) To the Knowledge of the Seller, there has
been no spill, discharge, leak, emission,
injection, escape, dumping or release of any
kind onto any property owned or leased by
HCC, or into the environment surrounding any
such property, of Hazardous materials, other
than releases permissible under applicable
Law or allowable under applicable permits;
(iii) HCC, its operations and any property owned
by it are in compliance in all material
respects with (i) all applicable
Environmental Laws, and (ii) the
requirements of any permits issued under
such laws; and
(iv) there are no pending or threatened claims
against HCC or any property owned or, to its
Knowledge, leased by it relating to
Hazardous Materials or environmental
matters.
None of the circumstances, conditions or occurrences disclosed in
section 4(t) of the Disclosure Schedule or reflected in the Financial Statements
involves or will result in any material liability on the part of HCC.
(u) CERTAIN BUSINESS RELATIONSHIPS WITH HCC. Except as
contemplated or permitted by this Agreement, disclosed in section 4(u) of the
Disclosure Statement or reflected in the Financial Statements, the Shareholder
is not involved in any business arrangement or relationship with HCC (other than
that of director, officer, employee, etc.) and the Shareholder does not own any
material asset, tangible or intangible, which is used in the business of HCC.
(v) EVENTS SUBSEQUENT TO DECEMBER 31, 1998. Except as set
forth in section 4(v) of the Disclosure Schedule, since December 31, 1998, there
has not been any HCC Material Adverse Change. Without limiting the generality of
the foregoing, since that date, except as set forth in section 4(v) of the
Disclosure Schedule:
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(i) HCC has not sold, leased, transferred, or
assigned any of its assets, tangible or
intangible, involving in the aggregate more
than Twenty Five Thousand Dollars
($25,000.00) other than for a fair
consideration in the Ordinary Course of
Business;
(ii) HCC has not entered into any agreement,
contract, lease, or license (or series of
related agreements, contracts, leases, and
licenses) which either (A) obligates HCC to
pay, or entitles HCC to receive, more than
Twenty Five Thousand Dollars ($25,000), or
(B) was outside the Ordinary Course of
Business;
(iii) no party (including HCC) has accelerated,
terminated, modified, or canceled any
agreement, contract, lease, or license (or
series of related agreements, contracts,
leases, and licenses) which obligates HCC to
pay, or entitles HCC to receive, more than
Twenty Five Thousand Dollars ($25,000) to
which HCC is a party or by which it is
bound;
(iv) HCC has not imposed or permitted to be
imposed any Security Interest or Encumbrance
upon any of its assets, tangible or
intangible;
(v) HCC has not made any capital expenditure (or
series of related capital expenditures)
either involving more than Twenty Five
Thousand Dollars ($25,000) or outside the
Ordinary Course of Business;
(vi) HCC has not made any capital investment in,
any loan to, or any acquisition of the
securities or assets of, any other Person
(or series of related capital investments,
loans, and acquisitions) either involving
more than Twenty Five Thousand Dollars
($25,000) or outside the Ordinary Course of
Business;
(vii) HCC has not issued any shares of stock,
bond, or other debt security or created,
incurred, assumed, or guaranteed any
indebtedness for borrowed money or
capitalized lease obligation either
involving more than Twenty Five Thousand
Dollars ($25,000) singly or Twenty Five
Thousand Dollars ($25,000) in the aggregate;
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(viii) HCC has not delayed or postponed the payment
of accounts payable and other Liabilities
outside the Ordinary Course of Business;
(ix) HCC has not canceled, compromised, waived,
or released any right or claim (or series of
related rights and claims) which either
involved more than Twenty Five Thousand
Dollars ($25,000) or was outside the
Ordinary Course of Business;
(x) HCC has not granted any license or
sublicense of any rights under or with
respect to any Intellectual Property;
(xi) there has been no change made or authorized
in the Articles or bylaws of HCC;
(xii) HCC has not declared, set aside, or paid any
dividend or made any distribution with
respect to its capital stock (whether in
cash or in kind) or redeemed, purchased, or
otherwise acquired any of its capital stock;
(xiii) HCC has not experienced any damage,
destruction, or loss (whether or not covered
by insurance) to its tangible property in
excess of Twenty Five Thousand Dollars
($25,000);
(xiv) HCC has not made or accepted any loan (that
will remain outstanding on the Closing Date)
to or from any of its directors, officers,
and employees outside the Ordinary Course of
Business;
(xv) HCC has not entered into any employment
contract, Employee Benefit Plan or
collective bargaining agreement, written or
oral, or materially changed or modified the
terms of any existing such contract or
agreement;
(xvi) HCC has not granted any increase in the base
compensation of any of its directors,
officers, and employees outside the Ordinary
Course of Business;
(xvii) HCC has not adopted, amended, modified, or
terminated any bonus, profit-sharing,
incentive,
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severance, or other plan, contract, or
commitment for the benefit of any of its
directors, officers, and employees (or taken
any such action with respect to any other
Employee Benefit Plan);
(xviii) HCC has not made or pledged to make any
charitable or other capital contribution
outside the Ordinary Course of Business; and
(xix) HCC has not become legally bound to do any
of the foregoing.
(w) UNDISCLOSED LIABILITIES. To the Knowledge of Seller and
the Shareholder, HCC has no Liability that individually or in the aggregate is
material to the results of operations or the financial or other condition of HCC
except for (i) Liabilities reflected or reserved against on the Most Recent
Balance Sheet or described on section 4(w) of the Disclosure Schedule or in the
notes (if any) to the Most Recent Financial Statements; (ii) Liabilities which
have arisen after December 31, 1998 in the Ordinary Course of Business; or (iii)
liabilities under its various contractual obligations.
(x) GOVERNMENTAL LICENSES, PERMITS AND RELATED APPROVALS.
Except as set forth on section 4(x) of the Disclosure Schedule, Seller has all
licenses, permits, consent, approvals, authorizations, qualifications and orders
of governments, governmental agencies, or other governmental authorities
required for the conduct of the Seller's Business as presently conducted.
(y) NO PUBLISHING. Seller is not involved in any cultural
business activities as defined in the Investment Canada Act, including the
publication, distribution or sale of books, magazines, periodicals or newspapers
in print or machine readable form, other than the sole activity of printing or
typesetting of books, magazines, periodicals or newspapers, in Canada.
(z) DISCLOSURE. The representations and warranties contained
in this section 4 do not contain any untrue statement of a material fact.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use his, her or its
commercially reasonable best efforts to facilitate all things necessary, proper,
or advisable in order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not waiver, of the
closing conditions set forth in section 8 below).
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(b) NOTICES AND CONSENTS. The Shareholder will cause HCC to
give any notices to third parties, and to use its commercially reasonable best
efforts to obtain any third party consents, that Kendle reasonably may request
and which are referred to in section 4(c) above. Each of the Parties will (and
the Shareholder will cause HCC to) give any notices, make any filings, and use
its commercially reasonable best efforts to obtain any authorizations, consents,
and approvals of governments and governmental agencies which relate to it and
are referred to in section 3(a)(i), section 3(b)(ii), and section 4(c) above.
(c) BULK SALES COMPLIANCE. The parties hereto believe that,
assuming compliance with this Agreement by the Parties, it
is both unnecessary for the protection of the Seller's
creditors and impracticable to comply with the Bulk Sales
Legislation in the various jurisdictions in which the
Seller's Assets are located. Accordingly, the Parties
agree to waive compliance with Bulk Sales Legislation with
respect to the sale of the Seller's Assets hereunder or
otherwise applicable to the transactions contemplated
hereby.
(d) OPERATION OF BUSINESS. The Shareholder will not cause or
permit HCC to engage in any practice, take any action, or
enter into any transaction (in each case, which is
material) outside the Ordinary Course of Business without
prior notification to and the consent of Kendle (which
consent shall not be unreasonably withheld or delayed).
Without limiting the generality of the foregoing, the
Seller will not cause or permit HCC to (i) declare, set
aside, or pay any dividend or make any distribution with
respect to its capital stock or redeem, purchase, or
otherwise acquire any of its capital stock, or (ii)
otherwise engage in any practice, take any action, or
enter into any transaction of the sort described in
section 4(v) above (OTHER THAN section 4(v) (ii), (iii),
(xii), (xiii) and (xv)) or (iii) enter into any collective
bargaining agreement, written or oral, or materially
modify the terms of any existing collective bargaining or
employment agreement.
(e) PRESERVATION OF BUSINESS. The Shareholder shall use his
commercially reasonable best efforts to cause HCC to keep its business and
properties substantially intact, including its present operations, physical
facilities, working conditions and relationships with lessors, licensors,
suppliers, customers and employees.
(f) FULL ACCESS. The Shareholder will permit, and the
Shareholder will cause HCC to permit, representatives of Kendle to have
reasonable access at reasonable times and upon reasonable notice, and in a
manner so as not to
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interfere with the normal business operations of HCC, to all premises,
properties, personnel, books, records (including Tax records), contracts, and
documents of HCC.
(g) NOTICE OF DEVELOPMENTS. The Shareholder will give prompt
written notice to Kendle of any material adverse, or other, development, of
which they become aware, causing any of the representations and warranties in
section 4 above to no longer be accurate. Each Party will give prompt written
notice to the others of any material adverse, or other, development, of which
he, she or it becomes aware, causing any of his, her or its own representations
and warranties in section 3 above to no longer be accurate.
(h) EXCLUSIVITY. Until the earlier to occur of (i) the Closing
or (ii) the termination of this Agreement pursuant to section 13 below, the
Shareholder will (and the Shareholder will not cause or permit HCC or any of the
Shareholder's agents or representatives to) (i) solicit, initiate, or encourage
the submission of any proposal or offer from any Person relating to the
acquisition of any capital stock or other voting securities, or any substantial
portion of the assets, of HCC (including any acquisition structured as a merger,
consolidation or share exchange) or (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek any of the foregoing. The Shareholder will vote his HCC
Shares in favor of any such acquisition structured as a merger, consolidation or
share exchange. The Seller and Shareholder will notify Kendle promptly if any
Person makes any proposal, offer, inquiry, or contact, of which they become
aware, with respect to any of the foregoing. If the Shareholder or HCC violate
the covenants set forth in this section 5(h), or if, after this Agreement has
been executed, the Shareholder and HCC are obligated to consummate the
transactions contemplated and the Shareholder and HCC fail to do so, in either
event, HCC and the Shareholder shall: (i) pay Kendle, as liquidated damages, an
amount equal to Three Percent (3%) of the Purchase Price; and (ii) reimburse
Kendle for all out-of-pocket expenses (including attorneys' and accountants'
fees) Kendle incurs in connection with the transaction contemplated hereby. The
foregoing liquidated damages provision shall not apply if (i) the transaction
with Kendle is consummated, or (ii) if the transaction is not consummated due to
a breach of this Agreement by Kendle.
(i) Intentionally Left Blank.
(j) CONFIDENTIALITY. Purchaser and Kendle will treat and hold
as such all of the confidential and proprietary information which it has
received and may receive relating to HCC, refrain from using any of such
confidential and proprietary information except in connection with this
Agreement and, in the event of the termination of this Agreement, will deliver
promptly to HCC or destroy, at the request of HCC, all copies of such
information which are in its possession. In the event that Purchaser or Kendle
is requested or required (by oral question or request for information or
documents in any legal proceeding, examination for discovery,
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request to appear, writ, or similar process) to disclose any of such
confidential or proprietary information, Purchaser will notify HCC promptly of
the request or requirement so that HCC may seek an appropriate protective order
or waive compliance with the provisions of this Section 5(j). If, in the absence
of a protective order or the receipt of a waiver hereunder, Purchaser or Kendle
is compelled to disclose such information, Purchaser or Kendle may disclose the
such information to the tribunal; PROVIDED, HOWEVER, that each of Purchaser and
Kendle shall use its commercially reasonable best efforts (at the sole cost and
expense of HCC) to obtain, at the reasonable request of HCC, an order or other
assurance that confidential treatment will be accorded to such portion of the
information required to be disclosed as HCC shall designate.
(k) SECTION 6 (RETAIL SALES TAX ACT (ONTARIO)) CERTIFICATE.
The Seller shall apply for and, when received, deliver to the Purchaser a
certificate issued by the Minister of Revenue pursuant to Section 6 of the
Retail Sales Tax Act (Ontario) and the equivalent certification in other
jurisdictions where any of the Purchased Assets or other assets owned by the
Seller have been located or the Business or other businesses have been carried
on by the Seller, which certificate shall indicate that the Seller has paid all
taxes collectable or payable under the said Act up to the Closing or has entered
into an arrangement satisfactory to the said Minister and the equivalent
authority in each other relevant jurisdiction for the payment of such taxes.
6. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing.
(a) GENERAL. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party
reasonably may request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under
section 11 below). The Seller acknowledges and agrees that, from and after the
Closing, Kendle will be entitled to possession of all documents, books, records
(including Tax records), agreements, and financial data of any sort that are
included within the Seller's Assets.
(b) LITIGATION SUPPORT. In the event and for so long as any
Party actively is contesting or defending against any third party action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand in
connection with (i) any transaction contemplated under this Agreement or (ii)
any fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving HCC, each of the other Parties will cooperate, in
all reasonable respects, with him, her or it and his, her or its counsel in the
contest or defense, make available their personnel, and provide such testimony
and access to their books and records as shall be
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35
reasonably necessary in connection with the contest or defense, all at the sole
cost and expense of the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification therefor under section 11 below).
(c) CONFIDENTIALITY. Each of the Seller and Shareholder will
treat and hold as such all of the confidential and proprietary information which
it has received and may receive relating to Kendle, refrain from using any of
the confidential and proprietary information (other than confidential and
proprietary information that solely relates to the Shareholder personally)
except in connection with this Agreement or the business of HCC or Kendle and
will deliver promptly to Kendle or destroy, at the request of Kendle, all copies
of such information which are in his or her possession. In the event that the
Shareholder or Seller is requested or required (by oral question or request for
information or documents in any legal proceeding, examination for discovery,
request to appear, writ, or similar process) to disclose any confidential and
proprietary information, the Shareholder or Seller will notify Kendle promptly
of the request or requirement so that Kendle may seek an appropriate protective
order or waive compliance with the provisions of this section 6(c). If, in the
absence of a protective order or the receipt of a waiver hereunder, the
Shareholder or Seller is compelled to disclose such Confidential Information,
the Shareholder or Seller may disclose the confidential information to the
tribunal; PROVIDED, HOWEVER, that the disclosing Shareholder or Seller shall use
his or her commercially reasonable best efforts (at the sole cost and expense of
the Purchaser) to obtain, at the reasonable request of Kendle, an order or other
assurance that confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed as Kendle shall designate.
(d) Tax Distribution. Seller shall provide to Kendle a
statement setting forth the amount necessary to pay Seller's taxes, if any,
created by the income of HCC which taxes are related to Seller's operations for
the period of July 1, 1998 to the Closing Date (such amount shall not include
any Tax obligations related to the sale of Seller's Assets), less such amount
that has previously been paid to cover such tax liability. Following receipt of
such statement, Kendle shall, within fifteen (15) business days, deliver to
Seller the amount set forth in such statement. Payments hereunder are deemed to
be an adjustment to the Purchase Price.
(e) PAYMENT OF TAXES AND FEES. The Seller shall pay or reserve
for payment when due out of the Purchase Price (a) any sales, excise, transfer
or other Taxes payable in respect of the sale of the assets of HCC; provided,
however, that the foregoing shall not apply to Taxes in respect of or based upon
income or gain earned, realized or recognized by any party, which shall in each
case be the responsibility of the party upon whom such Taxes are imposed by
applicable law. The Seller shall cause to be prepared and filed any and all
returns and other filings relating to any such Taxes referred to in the first
clause of the preceding sentence.
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(f) ACCESS TO RECORDS. For a period of six (6) years after the
Closing Date, Seller and its representatives shall have reasonable access to,
and the right to make copies of, all of the books and records transferred to
Purchaser hereunder to the extent that such access may reasonably be required by
Seller or any Shareholder in connection with matters relating to or affected by
the operations of the business of Seller prior to the Closing Date. Such access
shall be afforded by Purchaser upon receipt of reasonable advance notice and
during normal business hours. Seller shall be solely responsible for any costs
or expenses incurred by it pursuant to this section 6(g). If Purchaser shall
desire to dispose of any of such books and records prior to the expiration of
such six year period, Purchaser shall, prior to such disposition, give Seller a
reasonable opportunity, at Seller's expense, to segregate and remove such books
and records as Seller may select.
(g) ASSIGNABILITY. To the extent that any lease, contract,
license, agreement, sales or purchase order, commitment, or right included in
Seller's Assets (each an "Interest") is not capable of being sold, assigned,
transferred or conveyed without the approval, consent or waiver of the issuer
thereof or the other party or parties thereto, or any other person or entity
(including a governmental authority) (or would be breached in the event of an
assignment, transfer, etc. without such approval, consent or waiver) (a) this
Agreement shall not constitute an assignment or conveyance thereof absent such
approval, consent or waiver and (b) Seller and the Shareholder shall use such
person's commercially reasonable efforts, both prior and subsequent to the
Closing Date, to obtain all necessary approvals, consents or waivers necessary
to convey to Buyer each such Interest. To the extent any of the approvals,
consents or waivers referred to in this section 6(h) have not been obtained as
of the Closing and to the extent Purchaser and Seller waived obtaining such
consents as a condition to Closing as set forth in section 8(a)(x), the Seller
and each Shareholder shall, during the remaining term of such Interest, exercise
commercially reasonable efforts to cooperate with Purchaser, at its request, in
any reasonable and lawful arrangements designed to provide the benefits of such
Interest to Purchaser. In the event, and to the extent that any such approval,
consent or waiver is obtained subsequent to the Closing Date in connection with
an Assumed Contract, such Assumed Contract will be deemed, as of the date on
which such approval, consent or waiver is obtained, to have been assigned to and
assumed by the Purchaser in the same manner, and to the same extent, as all
other Assumed Contracts that were so assigned and assumed on the Closing Date.
7. THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Keating, Muething &
Klekamp, PLL, 1400 Provident Tower, One East Fourth Street, Cincinnati, Ohio
45202, commencing at 9:00 a.m., local time, on the second business day following
the satisfaction or waiver of all conditions to the obligations of the Parties
to consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the Closing itself) or
such other date as Kendle and the Seller may mutually determine (the "Closing
Date")
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8. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF KENDLE. The obligation of
Kendle to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth
in section 3(a) and section 4 above shall be
true and correct in all material respects
(other than representations and warranties
having materiality qualifiers, which shall
be true and correct in all respects) at and
as of the Closing Date;
(ii) the Seller shall have performed and complied
with all of its covenants hereunder in all
material respects through the Closing;
(iii) no action, suit, or proceeding shall be
pending or threatened before any court or
quasi-judicial or administrative agency of
any federal, state, local, or foreign
jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A)
prevent consummation of any of the
transactions contemplated by this Agreement
or (B) cause any of the transactions
contemplated by this Agreement to be
rescinded following consummation (and no
such injunction, judgment, order, decree,
ruling, or charge shall be in effect);
(iv) the Seller shall have delivered to Kendle a
certificate to the effect that each of the
conditions specified above in section 8(a)
(i)-(iii) is satisfied in all respects;
(v) Intentionally Left blank.
(vi) Kendle's bank creditors shall have given
their written consent to the transaction
contemplated by this Agreement;
(vii) The Parties shall have received all consents
to assignment of the Assumed Contracts;
(viii) no material adverse change in the business,
assets, liabilities, income, financial
condition, operations or
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results of operations of HCC ("HCC Material
Adverse Change") shall have occurred;
provided, however, if a HCC Material Adverse
Change shall have occurred, Kendle and the
Seller shall negotiate in good faith with
respect to a reasonable adjustment of the
Purchase Price (but no party shall be
obligated to so negotiate beyond the
Expiration Date). If agreement is not
reached with respect to such an adjustment,
Kendle may terminate this Agreement for
failure of a condition precedent subject to
the terms and conditions of Section 13
hereof;
(ix) The Parties and HCC shall have received all
authorizations, consents, and approvals of
governments and governmental agencies
referred to in section 3(a)(i), section
3(b)(ii) and section 4(c) above;
(x) Intentionally Left Blank.
(xi) all other certificates, opinions,
certificates, instruments, and other
documents required to effect the
transactions contemplated hereby will be
reasonably satisfactory in form and
substance to Kendle;
(xii) the majority of the employees of Seller
agree to become employees of Purchaser at
substantially similar salaries.
(xiii) Seller shall have delivered Disclosure
Schedule 4(f) listing all Equipment with a
net book value in excess of $5,000; and
(xv) the US Closing will be completed
concurrently with the Closing.
Kendle may waive any condition specified in this section 8(a) if it executes a
writing so stating at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of
the Seller and Shareholder to consummate the transactions to be performed by
them in connection with the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties set forth
in section 3(b) above shall be true and
correct in all material respects
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(other than representations and warranties
having materiality qualifiers, which shall
be true and correct in all respects) at and
as of the Closing Date;
(ii) each of the Purchaser and Kendle shall have
performed and complied with all of its
covenants hereunder in all material respects
through the Closing;
(iii) no action, suit, or proceeding shall be
pending or threatened before any court or
quasi-judicial or administrative agency of
any federal, state, local, or foreign
jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A)
prevent consummation of any of the
transactions contemplated by this Agreement
or (B) cause any of the transactions
contemplated by this Agreement to be
rescinded following consummation (and no
such injunction, judgment, order, decree,
ruling, or charge shall be in effect);
(iv) Kendle shall have delivered to the Seller a
certificate to the effect that each of the
conditions specified above in section 8(b)
(i)-(iii) is satisfied in all respects;
(v) no material adverse change in the business,
assets, liabilities, income or financial
condition of Kendle ("Kendle Material
Adverse Change") shall have occurred since
December 31, 1998 provided, however, that if
a Kendle Material Adverse Change shall have
occurred, the Seller and Kendle shall
negotiate in good faith with respect to a
reasonable adjustment to the Purchase Price
(but no party shall be obligated to so
negotiate beyond the Expiration Date). If
agreement is not reached with respect to
such an adjustment, the Seller may terminate
this Agreement for failure of a condition
precedent, subject, to the terms and
conditions of section 13 hereof;
(vi) The Parties shall have received all consents
to assignment of the Assumed Contracts;
(vii) the Parties and HCC shall have received all
authorizations, consents, and approvals of
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governments and governmental agencies
referred to in section 3(a)(i), section
3(b)(ii), and section 4(c) above;
(viii) Intentionally Left Blank.
(ix) all other certificates, instruments, and
other documents required to effect the
transactions contemplated hereby will be
reasonably satisfactory in form and
substance to the Seller.
(x) the US Closing will be completed
concurrently with the Closing.
The Seller may waive any condition specified in this section 8(b) if it
executes a writing so stating at or prior to the Closing.
9. OBLIGATIONS OF SELLER AT CLOSING. At Closing:
(a) DOCUMENTS RELATING TO TITLE OF ASSETS. Seller shall
execute, acknowledge, deliver and cause to be executed, acknowledged and
delivered to Purchaser the following, in form and substance reasonably
satisfactory to Purchaser:
(i) Deeds, bills of sales, vehicle titles and
assignments in form and substance
satisfactory to Purchaser and sufficient to
convey to Purchaser good and valid title to
all Seller's Assets free and clear of all
Encumbrances.
(ii) An assignment to Purchaser and assumption by
Purchaser of all of Seller's rights and
interests in, to and under each Lease of
real and personal property and Contracts
constituting an Assumed Liability.
(iii) A trademark assignment agreement.
(b) POSSESSION. Seller shall deliver to Purchaser full
possession and control of the Assets.
(c) THIRD PARTY CONSENTS. Seller shall exercise commercially
reasonable best efforts to obtain and deliver to Purchaser any consents,
approvals, waivers and authorizations of third parties which are necessary in
the reasonable opinion of Purchaser for the consummation of this Agreement, as
well as those
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necessary for the assignment of the Leases and Contracts included in the Assumed
Liabilities.
(d) CHANGE OF NAME. Seller shall deliver evidence satisfactory
to Purchaser that Seller is changing the name of HCC to a name not confusingly
similar to HCC.
(e) ADDITIONALLY REQUESTED DOCUMENTS; POST CLOSING ASSISTANCE.
At the reasonable request of Purchaser at the Closing Date and at any time or
from time to time thereafter, Seller shall cooperate with Purchaser to put
Purchaser in actual possession and operating control of the Assets, execute and
deliver such further instruments of sale, conveyance, transfer and assignment,
as Purchaser may reasonably request in order to effectively sell, convey,
transfer and assign the Seller's Assets to Purchaser, to execute and deliver
such further instruments and to take such other actions as Purchaser may
reasonably request to release Purchaser from all obligation and liability with
regard to any obligation or liability retained by Seller.
10. OBLIGATIONS OF PURCHASER AT CLOSING. At Closing:
(a) PURCHASE PRICE. Purchaser shall deliver to Seller cash in
the aggregate amount of the Purchase Price specified herein and shall deliver to
the Escrow Agent the balance of the Purchase Price as specified herein.
(b) CORPORATE GOOD STANDING AND CERTIFIED BOARD RESOLUTIONS.
Purchaser shall deliver to Seller a certificate of Status from the Nova Scotia
Office of the Registrar of Joint Stock Companies and a certified copy of the
resolutions of the Board of Directors of the Purchaser approving this Agreement
and consummation of the transactions intended hereby.
11. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS. All
of the representations and warranties of the Parties contained in this Agreement
(including the representations and warranties of the Shareholder and Seller
contained in section 3(a) and section 4), shall survive the Closing and continue
in full force and effect for a period of two (2) years following the Closing
Date; provided, however, that the representations and warranties contained in
section 4(j), section 4(t) and section 4(y) shall continue in full force and
effect until the expiration of the relevant statute of limitations. All
covenants and agreements shall survive in accordance with their terms or, if no
term is stated, indefinitely.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF KENDLE.
(i) In the event either the Shareholder or Seller
breaches any of his or her representations,
warranties, and covenants contained herein (other
than the
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representations and warranties in section
3(a) above and the covenants in Sections 12
and 5(h)), and, if there is an applicable
survival period pursuant to section 11(a)
above, provided that Kendle makes a written
claim for indemnification against the
Shareholder or Seller within such survival
period, then the Shareholder and the Seller
agree on a joint and several basis to
indemnify Kendle from and against the
entirety of any Adverse Consequences Kendle
may suffer through and after the date of the
claim for indemnification (including any
Adverse Consequences Kendle may suffer after
the end of any applicable survival period)
resulting from, arising out of or caused by
the breach
(ii) In the event the Shareholder breaches
any of his representations and warranties in
section 3(a) above, and, if there is an
applicable survival period pursuant to
section 11(a) above, provided that Kendle
makes a written claim for indemnification
against the Shareholder within such survival
period, then the Shareholder agrees to
indemnify Kendle from and against the
entirety of any Adverse Consequences Kendle
may suffer through and after the date of the
claim for indemnification (including any
Adverse Consequences Kendle may suffer after
the end of any applicable survival period)
resulting from, arising out of, in
connection with or caused by the breach.
(iii) The maximum aggregate liability of all
Persons liable for indemnity under the
Relevant Indemnity Sections shall be limited
to a sum equal to the Purchase Price
hereunder plus the Purchase Price under the
U.S. Asset Purchase Agreement, plus the
Earnout Amount paid to HCC-US (or to the
Escrow Agent under Section 11(b)(v) of the
U.S. Asset Purchase Agreement) plus any
additional Earnout Amount paid to HCC-US (or
to the Escrow Agent under the aforesaid
Section 11(b)(v)) (the "Maximum
Indemnification Obligation").
(iv) In no event shall any Person liable for
indemnity under any of the Relevant
Indemnity Sections be obligated to indemnify
Kendle thereunder unless and until the
aggregate Adverse Consequences for which
Kendle would otherwise be entitled to
indemnification under any one or more of the
Relevant Indemnity
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Sections exceeds Seventy-Five Thousand
Dollars ($75,000.00) (the "Basket"). After
the aggregate Adverse Consequences for which
Kendle would otherwise be entitled to
indemnification under any one or more of the
Relevant Indemnity Sections exceeds the
amount of the Basket, Kendle shall be
entitled to indemnification for all such
Adverse Consequences, but only to the extent
that they exceed $10,000 (such latter figure
being the "deductible"). Such deductible
shall be applicable to any given Person as
may be mutually agreed among Geoffrey
Kalish. Bradley Kalish, and Jill Kalish.
Kendle shall be enforcing the obligations of
the Seller and the Shareholder to the
Purchaser under the indemnities, on behalf
of the Purchaser, when making recourse to
the escrowed funds.
(iii) In the event that any creditor of the Seller
should make any claim against either the
Purchaser or the Seller's Assets which is
wholly or partially based on the premise
that the sale of the Seller's Assets did not
conform in any particular to the
requirements of the Bulk Sales Legislation
of any such jurisdiction, the Seller and the
Shareholder jointly and severally agree to
indemnify and save the Purchaser harmless
from and against any claim for principal,
interest and costs, including reasonable
legal and accounting fees, whether or not
the claim is ultimately proved to be well
founded, except to the extent that the claim
relates to a liability of the Business which
is to be assumed by the Purchaser hereunder
and which the Purchaser has failed to
discharge.
(iv) Kendle may satisfy Shareholder's or Seller's
indemnification obligations by recourse to
the escrow fund held by The Fifth Third
Bank, as escrow agent, pursuant to the
Escrow Agreement; provided, however that
recourse to the escrow fund shall not
constitute Kendle's sole remedy or source
for satisfaction of indemnification claims
under this Agreement. Notwithstanding the
foregoing, the parties hereto acknowledge
and agree that, in the event and to the
extent that any given claim or claims being
asserted could be satisfied out of the
assets being held under the Escrow
Agreement, no party
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shall have the right to satisfy, or attempt
to satisfy, such claim with assets of the
Shareholder or the Seller other than such
escrowed assets. In the event, and to the
extent, that any given claim or claims being
asserted in good faith by the Purchaser
could not be satisfied out of the assets
being held under the Escrow Agreement,
Purchaser may seek recourse by depositing
earned, but not yet paid, Earnout Amounts
with the Escrow Agent under the Escrow
Agreement (or to a different Escrow
Agreement if the Escrow Agreement shall
provide a different Escrow Agreement
therein).
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER AND
SHAREHOLDER. In the event Kendle or Purchaser breaches any of its
representations, warranties, and covenants contained herein, and, if there is an
applicable survival period pursuant to section 11(a) above, provided that any of
the Shareholder or Seller makes a written claim for indemnification against
Kendle or Purchaser within such survival period, then Kendle and Purchaser
agree, jointly and severally, to indemnify the Shareholder and Seller from and
against the entirety of any Adverse Consequences the Shareholder or Seller may
suffer through and after the date of the claim for indemnification (including
any Adverse Consequences the Shareholder or Seller may suffer after the end of
any applicable survival period) resulting from, arising out of, in connection
with, or caused by such breach.
(d) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party
(the "INDEMNIFIED PARTY") with respect to
any matter (a "THIRD PARTY CLAIM") which may
give rise to a claim for indemnification
against any other Party (the "INDEMNIFYING
PARTY") under this section 11, then the
Indemnified Party shall promptly notify each
Indemnifying Party thereof in writing;
PROVIDED, HOWEVER, that no delay on the part
of the Indemnified Party in notifying any
Indemnifying Party shall relieve the
Indemnifying Party from any obligation
hereunder unless (and then solely to the
extent) the Indemnifying Party thereby is
prejudiced.
(ii) Any Indemnifying Party will have the right
to defend the Indemnified Party against the
Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified
Party so long as (A) the Indemnifying Party
notifies the Indemnified Party in writing
within
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15 days after the Indemnified Party has
given notice of the Third Party Claim that
the Indemnifying Party will indemnify the
Indemnified Party from and against the
entirety of any Adverse Consequences the
Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature
of, or caused by the Third Party Claim, (B)
the Indemnifying Party provides the
Indemnified Party with evidence reasonably
acceptable to the Indemnified Party that the
Indemnifying Party will have the financial
resources to defend against the Third Party
Claim and fulfill its indemnification
obligations hereunder, (C) the Third Party
Claim involves only money damages and does
not seek an injunction or other equitable
relief, (D) settlement of, or an adverse
judgment with respect to, the Third Party
Claim is not, in the good faith judgment of
the Indemnified Party, likely to establish a
precedential custom or practice materially
adverse to the continuing business interests
of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of
the Third Party Claim actively and
diligently.
(iii) So long as the Indemnifying Party is
conducting the defense of the Third Party
Claim in accordance with section 11(d)(ii)
above, (A) the Indemnified Party may retain
separate co-counsel at its sole cost and
expense and participate in the defense of
the Third Party Claim, (B) the Indemnified
Party will not consent to the entry of any
judgment or enter into any settlement with
respect to the Third Party Claim without the
prior written consent of the Indemnifying
Party (not to be withheld unreasonably), and
(C) the Indemnifying Party will not consent
to the entry of any judgment or enter into
any settlement with respect to the Third
Party Claim without the prior written
consent of the Indemnified Party (not to be
withheld unreasonably).
(iv) In the event any of the conditions
in section 11(d)(ii) above is or becomes
unsatisfied, however, (A) the Indemnified
Party may defend against, and consent to the
entry of any judgment or enter into any
settlement with respect to, the Third Party
Claim in any manner it reasonably may deem
appropriate (and the
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Indemnified Party need not consult with
unless the Indemnifying Party shall have
elected to participate in accordance with
section 11(d)(v) below, or obtain any
consent from, any Indemnifying Party in
connection therewith), and (B) the
Indemnifying Parties will remain responsible
for any Adverse Consequences for which it
may be liable under section 11 hereof.
(v) With respect to any Third Party Claim the
defense and/or settlement of which is being
conducted by the Indemnified Party, the
Indemnifying Party shall have the right, at
its expense, to fully participate in (but
not control) such defense and/or settlement
with counsel of its own choosing.
(e) DETERMINATION OF ADVERSE CONSEQUENCES. The Parties shall
take into account the time cost of money in determining Adverse Consequences for
purposes of this section 11. All indemnification payments under this section 11
shall be deemed adjustments to the Purchase Price.
(f) OTHER INDEMNIFICATION PROVISIONS. This Section 11 shall,
except for any liquidated damages provided for under section section 5(h), 12
and 13(b) and except for any equitable relief which a court may grant in its
discretion under section 14(o), be the exclusive remedy for any breach of this
Agreement.
12. NON-COMPETITION COVENANT.
(a) BASIC COVENANT. The Seller agrees that for a period of
four years from and after the Closing Date (the "Non-Compete Term") it shall
not, directly or indirectly, as an officer, director, employee, consultant,
principal, partner, member, shareholder or otherwise: (i) engage in the business
of a contract research organization providing clinical research and drug
development services to pharmaceutical and biotechnology companies (the
"Business"), or engage in the business of providing medical education and
communications services including organizational and meeting management services
and publishing and editorial services related to medical education to
pharmaceutical companies or medical associations ("HCC Business"), in any
Province of Canada or in any other jurisdiction or country outside Canada: (x)
in which HCC or any of its subsidiaries or affiliates conducted business or had
operations immediately prior to consummation of the transactions contemplated by
this Agreement; or (y) in which HCC or Kendle, at any time during the
Non-Competition Term, engages in the Business; or (ii) solicit or accept orders
that relate specifically to the Business from any customer or active potential
customer of HCC existing on the Closing Date.
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(b) REMEDIES FOR BREACH OF NON-COMPETITION COVENANT. The
Seller hereby agrees and acknowledges that the restrictions contained in the
Non-Compete Covenant are reasonable and necessary to protect the legitimate
interests of Kendle and its Affiliates and that Kendle would not enter into this
Agreement without such Non-Compete Covenant. Should Seller breach its
obligations set forth in section 12(a), then Kendle shall deliver notice of such
breach to Seller and Seller shall have thirty (30) days to cure such breach or
such longer time may be as reasonably necessary to cure such breach provided
Seller is diligently pursuing such cure and does not exceed sixty (60) days. The
Parties agree that if the Seller breaches its Non-Compete Covenant that
continuing and irreparable harm will be caused to Kendle thereby and that Kendle
shall, in the event Seller shall not have cured such breach as provided above,
be entitled to liquidated damages as set forth below in section 12(c) below.
This liquidated damages provision shall only apply if the liquidated damages
provision of the Non-Competition and Non-Disclosure Agreements of the
Shareholders is not applicable. The Parties hereby instruct any court that may
find any provision of this Non-Compete Covenant to be unenforceable because it
is over broad or in violation of public policy to modify this Non-Compete
Covenant to the minimum extent needed to permit enforcement thereof.
(c) LIQUIDATED DAMAGES. Should the Seller violate the
restrictions set forth in section 12(a) in either of the first two years
following the Closing Date (and Seller shall fail to cure in accordance with
Section 12(b) above) Seller shall pay Kendle liquidated damages in the amount of
Ten Million Dollars ($10,000.00). Should the Seller violate the restrictions set
forth in section 12(a) in either the third or fourth year following the Closing
Date (and Seller shall fail to cure in accordance with Section 12(b) above),
Seller shall pay Kendle liquidated damages in the amount of Six Million Dollars
($6,000,000.00). Notwithstanding any of the foregoing, in no event shall the
maximum aggregate amount of damages recoverable by Kendle and/or Purchaser under
this Section 12 for any and all breaches hereof exceed the sum of $10,000,000.
For purposes of enforcing the provisions of Section 12 herein, Seller and
Shareholder hereby consent and attorn to the jurisdiction of the State of Ohio
and the application of Ohio law.
13. TERMINATION.
(a) TERMINATION OF AGREEMENT. This Agreement may only be
terminated as provided below:
(i) Kendle and the Seller may terminate this
Agreement by mutual written consent at any
time prior to the Closing;
(ii) Kendle may terminate this Agreement by
giving written notice to the Seller at any
time prior to the Closing (A) in the event
either the Shareholder or
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Seller has breached any material
representation, warranty, or covenant
contained in this Agreement in any material
respect, Kendle has notified the Shareholder
or Seller of the breach, and the breach has
continued without cure for a period of 30
days after the notice of breach or (B) if
the Closing shall not have occurred on or
before July 20, 1999 (the "Expiration
Date"), by reason of the failure of any
condition precedent under section 8(a)
hereof (unless the failure results primarily
from Kendle or Purchaser itself breaching
any representation, warranty, or covenant
contained in this Agreement); and
(iii) the Seller may terminate this Agreement by
giving written notice to Kendle at any time
prior to the Closing (A) in the event Kendle
or Purchaser has breached any material
representation, warranty, or covenant
contained in this Agreement in any material
respect, any of the Shareholder or Seller
has notified Kendle or Purchaser of the
breach, and the breach has continued without
cure for a period of 30 days after the
notice of breach or (B) if the Closing shall
not have occurred on or before the
Expiration Date, by reason of the failure of
any condition precedent under section 8(b)
hereof (unless the failure results primarily
from the Shareholder or Seller themselves
breaching any representation, warranty, or
covenant contained in this Agreement).
(b) EFFECT OF TERMINATION. If any Party terminates this
Agreement pursuant to section 13(a) above, all rights and obligations of the
Parties hereunder shall terminate without any Liability of any Party to any
other Party (except for any Liability of any Party relating to any present or
previous breach). If after this Agreement has been executed, Kendle is obligated
to consummate the transactions contemplated hereby and Kendle fails to do so in
accordance with the terms hereof, Kendle shall pay Seller, as liquidated
damages, an amount equal to Three Percent (3%) of the Purchase Price.
14. MISCELLANEOUS.
(a) INTENTIONALLY OMITTED
(b) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall
issue any press release or make any other public announcement relating to the
subject matter of this Agreement prior to Closing without the prior written
approval of
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Kendle and the Seller (which approval shall not be unreasonably withheld or
delayed); PROVIDED, HOWEVER, that any Party may make any public disclosure if
it, in good faith, believes is required by applicable law or any listing or
trading agreement concerning its publicly-traded securities (in which case the
disclosing Party will use its reasonable best efforts to advise the other
Parties prior to making the disclosure). Notwithstanding the foregoing, the
Parties agree that any Party may issue a mutually agreeable press release or
other public announcement upon (i) the execution of this Agreement, (ii) the
Closing, and (iii) the reasonable request of the other Parties.
(c) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(d) ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior or contemporaneous understandings, agreements, or
representations by or among the Parties, written or oral, to the extent they
relate or related in any way to the subject matter hereof.
(e) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his, her or its rights, interests, or obligations hereunder without the
prior written approval of Kendle and the Seller; provided, however, that Kendle
may (i) assign any or all of its rights and interests hereunder to one or more
of its Affiliates and (ii) designate one or more of its Affiliates to perform
its obligations hereunder (in any or all of which cases Kendle nonetheless shall
remain responsible for the performance of all of its obligations hereunder).
(f) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller
or to The Shareholder: Geoffrey H. Kalish, M.D.
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2 Cedar LaneChappaqua, New York
10514
With a Required Copy to: Epstein Becker & Green, P.C.
250 Park Avenue
New York, New York 10177
Attention: Lowell S. Lifschultz., Esq.
If to Kendle or the Purchaser: KENDLE INTERNATIONAL INC.
------------------------------ 441 Vine Street
700 Carew Tower
Cincinnati, Ohio 45202
Attention: Paul F. Ritter, Esq.
Secretary & General Counsel
With Required Copies to: KEATING, MUETHING &
------------------------ KLEKAMP, P.L.L.
One East Fourth Street
1400 Provident Tower
Cincinnati, Ohio 45202
Attention: Edward E. Steiner, Esq.
Fraser Milner
1 First Canadian Place
100 King Street West
Toronto, Ontario, Canada M5X 182
Attention: Doug Scott
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient and such
notice shall be effective upon such actual receipt. Any Party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Parties notice in the manner
herein set forth.
(i) GOVERNING LAW. Except as otherwise provided herein, this
Agreement shall be governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable therein without
giving
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effect to any choice or conflict of law provision or rule (whether of the
Province of Ontario or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the Province of Ontario.
(j) AMENDMENTS AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
Kendle, the Seller and the Shareholder. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights or remedies arising by virtue of any prior or
subsequent such occurrence.
(k) SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(l) EXPENSES. Each of the Parties will bear his, her or its
own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
(m) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intend
that each representation, warranty and covenant contained herein shall have
independent significance. If any Party has breached any representation, warranty
or covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of relative levels of specificity) that the Party has not breached
shall not detract from or mitigate the fact that the Party is in breach of the
first representation, warranty or covenant.
(n) INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The
Exhibits, Annexes, and Schedules identified in this Agreement are incorporated
herein by reference and made a part hereof.
(o) SPECIFIC PERFORMANCE. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific
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terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter in addition to any other remedy to which they may be
entitled, at law or in equity.
(p) KENDLE GUARANTEE. Kendle hereby unconditionally and
irrevocably guarantees the payment and performance of Purchaser's obligations
under this Agreement, so that, in the event that Purchaser fails to make any of
such payments or render any such performance, Kendle shall make such payments or
render such performance without Seller or Shareholders having first to pursue or
exhaust any remedies against the Purchaser.
(q) ENGLISH LANGUAGE. The parties confirm that it is their
wish that this Agreement as well as any other documents relating hereto
including notices, have been and shall be drawn up in English only. Les parties
aux presents confirment leur volonte que cette convention de meme tous les
documents, y compris tous avis, s'y rattachant, soient rediges en anglais
seulement.
Rest of Page Left Intentionally Blank
- -------------------------------------
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
3031298 Nova Scotia
Limited., a subsidiary of
Kendle U.K. Inc.
By: /s/ Rafael Mancera
---------------------------
Name: Rafael Mancera
Title: Assistant Secretary
Kendle International Inc.
By: /s/ Rafael Mancera
---------------------------
Name: Rafael Mancera
Title: Director of M&A
SHAREHOLDER
Of WITNESSED this ___________ day
Of ___________, 1999 at
_________________________________ By:/s/Geoffrey H. Kalish, M.D.
By:______________________________ ---------------------------
Name:____________________________ Geoffrey H. Kalish, M.D.
HCC HEALTH CARE
COMMUNICATIONS (1991),
LTD..
By: /s/ Bradley D. Kalish
--------------------------
Name: Bradley D. Kalish
Title: Vice-President
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