EXHIBIT 10.53
STOCK PURCHASE AGREEMENT
BY AND AMONG
CIVCO MEDICAL INSTRUMENTS CO., INC., AS BUYER,
COLORADO MEDTECH, INC.
AND
THE STOCKHOLDERS OF
BARZELL WHITMORE MAROON BELLS, INC., AS SELLERS
DATED AS OF FEBRUARY 7, 2002
Table of Contents
1. Definitions......................................................................................................1
2. Purchase and Sale of Company Shares..............................................................................6
(a) Basic Transaction...........................................................................................6
(b) Purchase Price..............................................................................................6
(c) The Closing.................................................................................................6
(d) Deliveries at the Closing...................................................................................6
(e) Purchase Price Adjustment...................................................................................7
(f) Milestone Payments..........................................................................................8
(h) Payment Limit..............................................................................................10
(i) Adjustments to CMED Stock..................................................................................10
3. Representations and Warranties Concerning the Transaction.......................................................11
(a) Representations and Warranties of Sellers..................................................................11
(b) Representations and Warranties of Buyer....................................................................12
(c) Representations and Warranties of CMED.....................................................................13
4. Representations and Warranties Concerning the Company...........................................................14
(a) Organization, Qualification, and Corporate Power...........................................................14
(b) Capitalization.............................................................................................15
(c) Noncontravention...........................................................................................15
(d) Brokers' Fees..............................................................................................15
(e) Title to Assets............................................................................................15
(f) Subsidiaries...............................................................................................15
(g) Financial Statements.......................................................................................16
(h) Events Subsequent to September 30, 2001....................................................................16
(i) Undisclosed Liabilities....................................................................................18
(j) Legal Compliance...........................................................................................18
(k) Company Permits............................................................................................18
(l) Tax Matters................................................................................................18
(m) Real Property..............................................................................................19
(n) Intellectual Property......................................................................................20
(o) Tangible Assets............................................................................................21
(p) Inventory..................................................................................................22
(q) Contracts..................................................................................................22
(r) Powers of Attorney.........................................................................................23
(s) Insurance..................................................................................................23
(t) Litigation.................................................................................................23
(u) Product Warranty...........................................................................................23
(v) Product Liability..........................................................................................24
(w) Employees..................................................................................................24
(x) Employee Benefits..........................................................................................24
(y) Guaranties.................................................................................................26
(z) Environmental, Health, Safety and Other Regulatory Matters.................................................26
(aa) Certain Business Relationships with the Company............................................................27
(bb) Disclosure.................................................................................................28
5. Pre-Closing Covenants.........................................................................................28
(a) General...................................................................................................28
(b) Notices and Consents......................................................................................28
(c) Operation of Business.....................................................................................28
(d) Preservation of Business..................................................................................28
(e) Full Access...............................................................................................28
(f) Notice of Developments....................................................................................29
(g) Exclusivity...............................................................................................29
6. Post-Closing Covenants........................................................................................29
(a) General...................................................................................................29
(b) ss.338(h)(10) Election and other Tax Matters..............................................................29
(c) Transition................................................................................................31
(d) Litigation Support........................................................................................31
(e) Confidentiality...........................................................................................32
(f) Repayment of Outstanding Line of Credit...................................................................11
7. Conditions to Obligation to Close.............................................................................32
(a) Conditions to Obligation of Buyer and CMED................................................................32
(b) Conditions to Obligation of Sellers.......................................................................34
8. Remedies for Breaches of This Agreement.......................................................................35
(a) Survival of Representations and Warranties................................................................35
(b) Indemnification Provisions for Benefit of Buyer and CMED..................................................35
(c) Indemnification Provisions for Benefit of Sellers.........................................................36
(d) Matters Involving Third Parties...........................................................................37
(e) Determination of Adverse Consequences.....................................................................38
(f) Other Indemnification Provisions..........................................................................39
9. Termination...................................................................................................39
(a) Termination of Agreement..................................................................................39
(b) Effect of Termination.....................................................................................40
10. Miscellaneous................................................................................................40
(a) Nature of Certain Obligations.............................................................................40
(b) Press Releases and Public Announcements...................................................................40
(c) No Third-Party Beneficiaries..............................................................................40
(d) Entire Agreement..........................................................................................40
(e) Succession and Assignment.................................................................................40
(f) Counterparts..............................................................................................41
(g) Headings..................................................................................................41
(h) Notices...................................................................................................41
(i) Governing Law.............................................................................................42
(j) Amendments and Waivers....................................................................................42
(k) Severability..............................................................................................42
(l) Expenses..................................................................................................42
(m) Covenant Not to Compete...................................................................................42
(n) Construction..............................................................................................44
(o) Incorporation of Exhibits.................................................................................45
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(p) Specific Performance......................................................................................45
(q) Submission to Jurisdiction................................................................................45
(r) Arbitration...............................................................................................45
Exhibit A--Historical Financial Statements
Exhibit B--Form of Sarasota Lease
Exhibit C--Form of Employment Agreements
Exhibit D--Form of Opinion of Counsel to Sellers
Exhibit E--Form of Piggyback Registration Rights Agreement
Exhibit F--Form of Opinion of Counsel to Buyer
Annex I--Exceptions to Sellers' Representations and Warranties Concerning the
Transaction
Annex II--Exceptions to Buyer's Representations and Warranties Concerning
the Transaction
Disclosure Schedule--Exceptions to Representations and Warranties Concerning
the Company
Schedule 2(f)--Example of Milestone Payment and Annual Incentive Payment
Allocation Schedule
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STOCK PURCHASE AGREEMENT
Agreement entered into as of February 7, 2002, by and among CIVCO
Medical Instruments Co., Inc., an Iowa corporation ("Buyer") and a wholly owned
subsidiary of Colorado MEDtech, Inc., a Colorado corporation ("CMED"), and
Winston E. Barzell and Willet F. Whitmore III (each, a "Seller" and,
collectively, the "Sellers"). Each of Buyer, CMED and the Sellers are referred
to in this Agreement as a "Party" and collectively as the "Parties."
Sellers in the aggregate own all of the outstanding capital stock of
Barzell Whitmore Maroon Bells, Inc., a Florida corporation (the "Company").
This Agreement contemplates a transaction in which Buyer will purchase
from Sellers, and Sellers will sell to Buyer, all of the outstanding capital
stock of the Company in return for cash and common stock of CMED.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Accountants" has the meaning set forth in ss.2(e).
"Acquisition Target" has the meaning set forth in ss.10(m).
"Adjustment Statement" has the meaning set forth in ss.2(e) .
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such other Person and, in the case of an individual, includes the individual's
immediate family, and the trustees of a trust the beneficiaries of which include
any one or more of the foregoing.
"Affiliated Group" means any affiliated group within the meaning of
Code ss.1504(a).
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could
form the basis for any specified consequence.
"Business" means the business of designing, manufacturing or selling
the line of medical products and related products and product extensions in the
Positioning and Stabilizing Devices, E-Movers and Disposables product families
in the fields of prostate cancer and treatment of benign prostrate hyperplasia,
colo-rectal surgery, laparoscopic surgery, radiology, general surgery and
urology as presently engaged in or proposed to be engaged in by the Company as
of the Closing and after the Closing Date, and shall also include any new
products developed by Sellers or Buyer for the Company in such product families,
and shall exclude any products in the above-listed families sold by Buyer or
CMED as of the Closing Date.
"Business Day" means any day other than a Saturday, a Sunday or a
United States federal or a Colorado or New York State banking holiday.
"Buyer" has the meaning set forth in the second paragraph of this
Agreement.
"Closing" has the meaning set forth in ss.2(c).
"Closing Balance Sheet" has the meaning set forth in ss.2(e).
"Closing Date" has the meaning set forth in ss.2(c).
"CMED Stock" has the meaning set forth in ss.2(b).
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
"Company Permits" has the meaning set forth in ss.4(k).
"Company Share" means any share of the Common Stock, par value $1.00
per share, of the Company.
"Confidential Information" means any information concerning the
business and affairs of the Company that is not already generally available to
the public.
"Cumulative Gross Profit Statement" has the meaning set forth in
ss.2(f).
"Cumulative Income Statement" has the meaning set forth in ss.2(f).
"Disclosure Schedule" has the meaning set forth in ss.4.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement, (b) qualified defined
contribution retirement plan or arrangement which is an
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Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or
arrangement which is an Employee Pension Benefit Plan (including any
Multiemployer Plan), or (d) Employee Welfare Benefit Plan or material fringe
benefit or other retirement, bonus, or incentive plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
ss.3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
ss.3(1).
"Employment Agreements" has the meaning set forth in ss.7(a).
"Environmental, Health, and Safety Requirements" shall mean all
federal, state, local and foreign statutes, regulations, ordinances and other
provisions having the force or effect of law, all judicial and administrative
orders and determinations, all contractual obligations and all common law
concerning public health and safety, worker health and safety, and pollution or
protection of the environment, including without limitation all those relating
to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, threatened release, control, or cleanup of any hazardous
materials, substances or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or byproducts,
asbestos, polychlorinated biphenyls, noise or radiation, each as amended and as
now or hereafter in effect.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means each entity which is treated as a single
employer with Seller for purposes of Code ss.414.
"Financial Statement" has the meaning set forth in ss.4(g).
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Gross Profit of the Business" has the meaning set forth in ss.2(f).
"JAG" has the meaning set forth in ss.10(r).
"Incentive Cap" has the meaning set forth in ss.2(g).
"Indemnified Party" has the meaning set forth in ss.8(d).
"Indemnifying Party" has the meaning set forth in ss.8(d).
"Initial Cash Price" has the meaning set forth in ss.2(b).
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and
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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, and
corporate 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 data and related
documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Leased Real Property" has the meaning set forth in ss.4(m).
"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 any liability for Taxes.
"Material Adverse Change" with respect to the Company means a change,
event or occurrence that individually, or together with any other change, event
or occurrence, has a material adverse impact on the financial position,
business, or results of operations of the Company and a "Material Adverse
Change" shall be deemed to have occurred if any such material adverse impact
exists on any date, without regard to the duration of such material adverse
impact; provided, however, that the term "Material Adverse Change" shall not
include (i) changes in the industry or markets in which the Company operates,
(ii) changes in GAAP, (iii) actions or omissions of the Company taken with the
prior written consent of Buyer, or (iv) any matter set forth in the Schedules
attached hereto.
"Material Contract" has the meaning set forth in ss.4(q).
"Milestone Payments" has the meaning set forth in ss.2(f).
"Most Recent Balance Sheet" means the balance sheet contained within
the Most Recent Financial Statements.
"Most Recent Financial Statements" has the meaning set forth in
ss.4(g).
"Most Recent Fiscal Month End" has the meaning set forth in ss.4(g).
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"Most Recent Fiscal Year End" has the meaning set forth in ss.4(g).
"Multiemployer Plan" has the meaning set forth in ERISA ss.3(37).
"Non-Compete Period" has the meaning set forth in ss.10(m).
"NTB Obligations" has the meaning set forth in ss.2(i).
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the first paragraph of this
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means an individual, a partnership, a corporation, 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).
"Pre-Closing Tax Period" has the meaning set forth in ss.6(b).
"Purchase Price" has the meaning set forth in ss.2(b).
"Purchase Price Adjustment" has the meaning set forth in ss.2(e).
"Sarasota Lease" has the meaning set forth in ss.7(a).
"SEC" means the Securities and Exchange Commission.
"ss.338(h)(10) Election" has the meaning set forth in ss.6(b).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"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 first paragraph of this
Agreement.
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"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code ss.59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Third Party Claim" has the meaning set forth in ss.8(d).
2. Purchase and Sale of Company Shares.
(a) Basic Transaction. On and subject to the terms and conditions of
this Agreement, Buyer agrees to purchase from each of the Sellers, and each of
the Sellers agrees to sell to Buyer, all of his Company Shares for the
consideration specified below in this ss.2.
(b) Purchase Price. The aggregate purchase price (the "Purchase Price")
to be paid by Buyer to Sellers for the Company Shares shall be (i) 127,000
shares of Common Stock, no par value per share, of CMED (the "CMED Stock"),
subject to adjustment as provided in ss.2(h), (ii) two million dollars
($2,000,000) in cash, (the "Initial Cash Price"), subject to adjustment as
provided in ss.2(e) and (iii) any Milestone Payments payable under ss.2(f),
subject to adjustment as provided in ss.2(g). The Initial Cash Price shall be
adjusted as set forth in ss.2(e). At Closing, Buyer shall deliver to Sellers
certificates representing the CMED Stock and the Initial Cash Price, which shall
be transferred to such accounts as Sellers designate in writing to Buyer at
least two (2) Business Days prior to the Closing Date. The Purchase Price shall
be allocated among Sellers in proportion to their respective holdings of Company
Shares as set forth in ss.4(b) of the Disclosure Schedule.
(c) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Bartlit Beck Herman
Palenchar & Scott in Denver, Colorado, 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 Buyer and Sellers may
mutually determine (the "Closing Date"); provided, however, that the Closing
Date shall be no later than February 11, 2002.
(d) Deliveries at the Closing. At the Closing, (i) Sellers will deliver
to Buyer the various certificates, instruments, and documents referred to in
ss.7(a), (ii) Buyer will deliver to Sellers the
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various certificates, instruments, and documents referred to in ss.7(b), (iii)
each of Sellers will deliver to Buyer stock certificates representing all of his
Company Shares, endorsed in blank or accompanied by duly executed assignment
documents, and (iv) Buyer will deliver to Sellers the consideration specified in
ss.2(b)(i) and (ii) above.
(e) Purchase Price Adjustment. Buyer and Sellers agree to make an
adjustment to the Initial Cash Price (the "Purchase Price Adjustment"), which
may be a positive or negative number, based upon the dollar for dollar variance
between the balance sheet items listed below compared to any increase or
decrease of the balance sheet of the Company as of the Closing Date (the
"Closing Date Balance Sheet"), prepared in accordance with GAAP, applied on a
basis consistent with the Company's accounting practices. Within sixty (60) days
after the Closing Date, Buyer shall, at its sole cost and expense, prepare and
deliver to Buyer and Sellers (i) the Closing Balance Sheet and (ii) a written
statement (the "Adjustment Statement") prepared by the Vice President of Finance
and Administration of Buyer certifying the amount of the Purchase Price
Adjustment and setting forth the calculation of such amount. The balance sheet
items and amounts to be compared to the Closing Balance Sheet for calculation of
the Purchase Price Adjustment shall be as follows:
ASSETS: NOT LESS THAN:
Accounts Receivable $100,000
Machinery and equipment, net $50,000
Inventory $150,000
Due from Barzell 0
Due from Whitmore 0
LIABILITIES: NOT MORE THAN:
Accrued Pension Payable 0
Note Payable - Barzell 0
Note Payable - Whitmore 0
Note Payable - Wilson 0
Total Notes Payable $250,000
Total Liabilities $300,000
TOTAL STOCKHOLDERS' EQUITY NOT LESS THAN ZERO
Adjustments for any of the above balance sheet items shall only be made
to the extent not already included in the Purchase Price Adjustment. For
example, if Notes Payable equal $260,000 and Total Liabilities equal $340,000,
then the resulting adjustment for these two items combined would be a reduction
in the Purchase Price of $40,000. In addition, the Purchase Price Adjustment
shall reflect (and the Purchase Price shall be reduced by) the amount of any
severance payments due and owing to employees of the Company as a result of any
termination of employment in connection with the transactions contemplated by
this Agreement, which severance payments are made at or after the Closing Date
by Buyer. Notwithstanding the foregoing, if Sellers repay the NTB Obligations
prior to the Closing Date, then the Initial Cash Price payable at Closing shall
be increased by the amount of such payment and not included in the post-Closing
Purchase Price
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Adjustment.
If, within fifteen (15) Business Days following delivery of the Closing
Balance Sheet and Adjustment Statement to Sellers, Sellers shall not have given
Buyer notice of their objection to any of the computations therein (which notice
shall contain a statement of the basis of such objection), then the Purchase
Price Adjustment reflected in the Adjustment Statement will be final and binding
upon the Parties, absent manifest error. If Sellers give notice to Buyer of
their objection, and the Parties are unable to resolve the issues in dispute
within thirty (30) days after delivery of such notice of objection, such issues
will be submitted to Andersen LLP, certified public accountants (the
"Accountants") for resolution. If any such disputed issues are submitted to the
Accountants for resolution, (x) each Party will furnish to the Accountants such
workpapers and other documents and information relating to the disputed issues
as the Accountants may request and are available to that Party (or its
independent public accountants), and will be afforded the opportunity to present
to the Accountants any material relating to such issues and to discuss the same
with the Accountants; (y) the computation of the Purchase Price Adjustment by
the Accountants, as set forth in a notice delivered to all Parties by the
Accountants, will be binding and conclusive on the Parties; and (z) the fees of
the Accountants for such determination will be borne 50% by Buyer and 50% by
Sellers.
Within fifteen (15) Business Days of Sellers' receipt of the Adjustment
Statement, if the Purchase Price Adjustment is a positive number, it shall be
paid by Buyer to Sellers, and if it is a negative number, it shall be paid by
Sellers to Buyer, in either case within said time period by wire transfer of
immediately available funds. Any such payment to Sellers shall be made in the
manner provided for in ss.2(b) and shall be allocated in the proportions
provided for therein; and any such payment to Buyer shall be made by wire
transfer to such bank account as Buyer will specify. In the event Sellers object
to the Adjustment Statement pursuant to the preceding paragraph, any additional
amounts payable to either Buyer or Sellers as a result of the final computation
by the Accountants shall be paid within five (5) Business Days of receipt of the
final computation by the Accountants.
(f) Milestone Payments. As consideration for Buyer's purchase of the
Company Shares from Sellers, Buyer shall pay to Sellers contingent purchase
price payments ("Milestone Payments") based upon the Gross Profit of the
Business as set forth herein. During the period (the "Purchase Period")
commencing on the first Business Day of the calendar month in which the Closing
occurs and ending on the last day of the sixty-sixth (66) month thereafter,
Buyer shall pay to Sellers Milestone Payments of $440,000 each in up to five
separate payments, totaling up to $2,200,000 in the aggregate, if, as and when
the Gross Profit of the Business since the beginning of the Purchase Period (the
"Cumulative Gross Profit") equals or exceeds each of the Cumulative Gross Profit
milestones set forth below:
MILESTONE CUMULATIVE GROSS PROFIT
First $1,320,000
Second $3,240,000
Third $5,460,000
Fourth $8,280,000
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Fifth $11,580,000
As used herein, the term "Gross Profit of the Business" for any period
shall mean (i) the revenues attributable to the Business for such period
(including any revenue received by Buyer or the Company from licenses to Persons
other than an Affiliate of the Company of intellectual property used in the
Business), less (ii) the cost of goods sold attributable to the Business for
such period, in each case, calculated in accordance with GAAP, applied on a
basis consistent with Buyer's accounting practices as they existed prior to the
Closing Date, but excluding revenue and cost of goods sold attributable to any
Person, or substantially all of the assets of any Person, acquired by Buyer
after the Closing Date. For purposes of this calculation, cost of goods sold
shall include labor, materials and manufacturing overhead for the specific goods
sold without allocation of general overhead or sales and marketing expenses, and
in no event shall the cost of goods sold attributable to a particular good
exceed the amount such item would cost if it were purchased by the Company from
an unaffiliated third party. An example setting forth the calculation of
Milestone Payments pursuant to this section and Annual Incentive Payments
pursuant to the Employment Agreements is set forth in Schedule 2(f) to this
Agreement, however, the inclusion of such example is for purely illustrative
purposes only and, in the case of any conflict between such example and the
terms of this ss.2(f) (in the case of the Milestone Payments) or the terms of
the Employment Agreements (in the case of the Annual Incentive Payments), this
Agreement or the applicable Employment Agreement, as the case may be, shall
govern.
Each Milestone Payment shall be subject to deferral or reduction to the
extent set forth in ss.2(g) of this Agreement. Within thirty (30) days of the
end of each month during the Purchase Period, Buyer shall, at its sole cost and
expense, prepare and deliver to Sellers (i) an income statement for the period
commencing on the Closing Date and ending at such month end (the "Cumulative
Income Statement"), prepared in accordance with GAAP, applied on a basis
consistent with Buyer's accounting practices, and (ii) a written statement (the
"Cumulative Gross Profit Statement") prepared by the Vice President of Finance
of the Buyer certifying the cumulative amount of Gross Profit of the Business
and the amount of any Milestone Payment for such period, and setting forth the
calculation of such amounts.
If, within fifteen (15) Business Days following delivery of the
Cumulative Income Statement and Gross Profit Statement to Sellers, Sellers shall
not have given Buyer notice of their objection to any of the computations
therein (which notice shall contain a statement of the basis of such objection),
then the cumulative Gross Profit of the Business and the Milestone Payment
reflected in the Cumulative Gross Profit Statement will be final and binding
upon the Parties, absent manifest error. If Sellers give notice to Buyer of
their objection, and the Parties are unable to resolve the issues in dispute
within thirty (30) days after delivery of such notice of objection, such issues
will be submitted to the Accountants for resolution. In the course of resolving
any issues so submitted to the Accountants, the Accountants may refer to the
example setting forth the calculation of Milestone Payments and Annual Incentive
Payments set forth in Schedule 2(f), however, in the case of any conflict
between such example and the terms of ss.2(f) (in the case of the Milestone
Payments) or the terms of the Employment Agreements (in the case of the Annual
Incentive Payments), this Agreement or the applicable Employment Agreement, as
the case may be, shall govern. If any such
9
disputed issues are submitted to the Accountants for resolution, (x) each Party
will furnish to the Accountants such workpapers and other documents and
information relating to the disputed issues as the Accountants may request and
are available to that Party (or its independent public accountants), and will be
afforded the opportunity to present to the Accountants any material relating to
such issues and to discuss the same with the Accountants; (y) the computation of
the cumulative Gross Profit of the Business and the Milestone Payment (if any)
by the Accountants, as set forth in a notice delivered to all Parties by the
Accountants, will be binding and conclusive on the Parties; and (z) the fees of
the Accountants for such determination will be borne 50% by Buyer and 50% by
Sellers.
The Milestone Payment (if any) due and payable to Sellers for such
period shall be paid by Buyer promptly within five (5) Business Days of Sellers'
receipt of the Cumulative Income Statement and the calculation of the Milestone
Payments as reflected in the Cumulative Gross Profit Statement. Notwithstanding
the immediately preceding sentence, the Fifth Milestone Payment (if any) shall
not be due and payable to Sellers until the date that is at least sixty (60)
months after the Closing Date. In the event Sellers object to the Cumulative
Income Statement and the Cumulative Gross Profit Statement pursuant to the
preceding paragraph, any additional Milestone Payments due as determined in the
Accountants' final computation of cumulative Gross Profit of the Business shall
be paid within five (5) Business Days of receipt of the Accountants' final
computation of cumulative Gross Profit.
(g) Payment Limit. If, at any time during the Purchase Period, the sum
of (i) the Milestone Payments payable pursuant to ss.2(f), plus (ii) the Annual
Incentive Payments (as defined in the Employment Agreements) payable to Sellers
pursuant to their respective Employment Agreements shall exceed the Incentive
Cap (as hereinafter defined) for such Contract Year, then the next Milestone
Payment (if any) shall be reduced to the extent of such excess; provided,
however, that for purposes of calculating any Taxes due on such payments, Buyer
and Sellers agree that any such reduction shall be deemed to first be a
reduction in Annual Incentive Payments (in proportion to such Seller's Pro Rata
Share (as such term is defined in the Employment Agreements) and thereafter to
be a reduction in Milestone Payments. As used herein, the term "Incentive Cap"
means, with respect to any Contract Year, the sum of (x) the then applicable
total Milestone Payments made to the Sellers since the Closing Date, plus (y)
twenty percent (20%) of the actual cumulative gross margin that then exceeds the
applicable Cumulative Annual Gross Margin Baseline for such Contract Year.
CONTRACT YEAR CUMULATIVE ANNUAL GROSS MARGIN BASELINE
Year 2 $3,240,000
Year 3 $5,460,000
Year 4 $8,280,000
Year 5 $11,580,000
(h) Adjustments to CMED Stock. If, prior to Closing Date, CMED effects
a subdivision of its outstanding shares into a greater number of shares, or a
combination of its outstanding shares into a lesser number of shares, or
reorganizes, reclassifies or otherwise changes its outstanding shares into
10
the same or a different number of shares or other classes, or declares a
dividend on its outstanding shares payable in shares of its capital stock or
securities convertible into shares of its capital stock, then the number of
shares of CMED Stock to be issued pursuant to ss.2(b) will be adjusted
appropriately so as to reflect such change.
(i) Repayment of Outstanding NTB Obligations. On the Closing Date,
Buyer shall repay the outstanding obligations (the "NTB Obligations") of the
Company to Northern Trust Bank of Florida N.A. in an aggregate amount not to
exceed $250,000, including the following: (i) the Business Line of Credit
represented by an Unsecured Promissory Note in the amount of $200,000, of which
$50,127.78 is presently outstanding; and (ii) the Business Loan represented by a
Promissory Note in the amount of $220,000, of which $179,368.35 is presently
outstanding.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of Sellers. Each of the Sellers
represents and warrants to Buyer and CMED that the statements contained in this
ss.3(a) are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
ss.3(a)) with respect to himself, except as set forth in Annex I attached
hereto.
(i) Authorization of Transaction. The Seller has full power
and authority to execute and deliver this Agreement and to perform his
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms and conditions. The Seller 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, nor the consummation 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 the Seller is subject or (B) except as set forth in Section
ss.3(a)(ii)(B) 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 agreement, contract, lease,
license, instrument, or other arrangement to which the Seller is a
party or by which he is bound or to which any of his assets is subject,
except in the case of (ii) for such breaches or defaults as would not,
individually or in the aggregate, result in a Material Adverse Change.
(iii) Brokers' Fees. The Seller 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
Buyer could become liable or obligated.
11
(iv) Investment. The Seller (A) understands that the shares of
CMED Stock have not been, and will not be, registered under the
Securities Act, or under any state securities laws, and are being
offered and sold in reliance upon federal and state exemptions for
transactions not involving any public offering, (B) is acquiring the
shares of CMED Stock solely for his own account for investment
purposes, and not with a view to the distribution thereof, (C) is a
sophisticated investor with knowledge and experience in business and
financial matters, (D) has received certain information concerning
Buyer and has had the opportunity to obtain additional information as
desired in order to evaluate the merits and the risks inherent in
holding unregistered CMED Stock, (E) is able to bear the economic risk
and lack of liquidity inherent in holding unregistered CMED Stock, and
(F) is an "accredited investor" as such term is defined under the
Securities Act.
(v) Company Shares. The Seller holds of record and owns
beneficially the number of Company Shares set forth next to his name in
ss.4(b) of the Disclosure Schedule, free and clear of any restrictions
on transfer (other than any restrictions under the Securities Act and
state securities laws), Taxes, Security Interests, options, warrants,
purchase rights, contracts, commitments, equities, claims, and demands.
The Seller is not a party to any option, warrant, purchase right, or
other contract or commitment that could require the Seller to sell,
transfer, or otherwise dispose of any capital stock of the Company
(other than this Agreement). The Seller is not a party to any voting
trust, proxy, or other agreement or understanding with respect to the
voting of any capital stock of the Company.
(b) Representations and Warranties of Buyer. Buyer represents and
warrants to Sellers that the statements contained in this ss.3(b) are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3(b)), except as
set forth in Annex II attached hereto.
(i) Organization of Buyer. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. Buyer 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
Buyer, enforceable against Buyer in accordance with its terms and
conditions. Buyer 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.
(iii) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation 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 Buyer is subject or any provision of its charter or bylaws or
(B) conflict with, result in a breach of, constitute a
12
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 Buyer is a party or by which it is bound or
to which any of its assets is subject.
(iv) Brokers' Fees. Buyer 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
any Seller could become liable or obligated.
(vii) Investment. Buyer is not acquiring the Company Shares
with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act.
(c) Representations and Warranties of CMED. CMED represents and
warrants to Sellers that the statements contained in this ss.3(c) are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3(c)), except as
set forth in Annex II attached hereto.
(i) Organization of CMED. CMED is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. CMED 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 CMED,
enforceable against CMED in accordance with its terms and conditions.
CMED 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.
(iii) Capitalization. The entire authorized capital stock of
CMED consists of 25,000,000 shares of common stock, no par value per
share, of which 13,043,048 shares are issued and outstanding as of
February _, 2002, and 5,000,000 shares of preferred stock, none of
which are outstanding as of the date of this Agreement. All of the
issued and outstanding shares of capital stock of CMED have been duly
authorized, are validly issued, fully paid, and nonassessable. The
issuance and sale of the shares of CMED Stock to Sellers has been duly
authorized by requisite corporate action on the part of CMED and, when
delivered to and paid for Sellers in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable.
(iv) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation 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 CMED is subject or any provision of its charter or bylaws or
(B) conflict with, result in a breach of, constitute a
13
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 CMED is a party or by which it is bound or
to which any of its assets is subject.
(v) SEC Documents. CMED has made available to Sellers true and
complete copies of Buyer's Annual Report on Form 10-K for the fiscal
year ended June 30, 2001, all Forms 8-K and Forms 10-Q filed after the
date of the last of the Form 10-K, and CMED's Proxy Statement relating
to its 2001 Annual Meeting of Shareholders, (collectively, the "SEC
Documents"). As of their respective filing dates, (i) each of the SEC
Documents complied in all material respects with the requirements of
the Securities Act and the Exchange Act, and the rules and regulations
of the SEC promulgated thereunder and (ii) none of the SEC Documents
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading, except to the extent that
information contained in any SEC Document was revised or superseded by
a later filed form, report or other document filed by CMED.
(vi) Brokers' Fees. CMED 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 any Seller
could become liable or obligated.
4. Representations and Warranties Concerning the Company. Sellers
jointly and severally represent and warrant to Buyer and CMED that the
statements contained in this ss.4 are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this ss.4), except as set forth in the disclosure
schedule delivered by Sellers to Buyer and CMED on the date hereof (the
"Disclosure Schedule"). Nothing in the Disclosure Schedule shall be deemed
adequate to disclose an exception to a representation or warranty made herein,
however, unless the Disclosure Schedule identifies the exception with reasonable
particularity and describes the relevant facts in reasonable detail. Without
limiting the generality of the foregoing, the mere listing (or inclusion of a
copy) of a document or other item shall not be deemed adequate to disclose an
exception to a representation or warranty made herein (unless the representation
or warranty has to do with the existence of the document or other item itself).
The Disclosure Schedule will be arranged in paragraphs corresponding to the
lettered and numbered paragraphs contained in this ss.4.
(a) Organization, Qualification, and Corporate Power. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation. The Company is duly authorized to
conduct business and is in good standing under the laws of each jurisdiction
where such qualification is required. The Company has full corporate power and
authority and all licenses, permits, and authorizations necessary to carry on
the businesses in which it is engaged and in which it presently proposes to
engage and to own and use the properties owned and used by it. ss.4(a) of the
Disclosure Schedule lists the directors and officers of the Company. Sellers
have delivered to Buyer correct and complete copies of the charter and bylaws
14
of the Company (as amended to date). The minute books (containing the records of
meetings of the stockholders, the board of directors, and any committees of the
board of directors), the stock certificate books, and the stock record books of
each of the Company are correct and complete. The Company is not in default
under or in violation of any provision of its charter or bylaws.
(b) Capitalization. The entire authorized capital stock of the Company
consists of 1,000,000 shares of Common Voting Stock, of which 200 shares are
issued and outstanding, and 1,000,000 shares of Non-Voting Common Stock, none of
which are issued and outstanding. All of the issued and outstanding Company
Shares have been duly authorized, are validly issued, fully paid, and
nonassessable, and are held of record by the respective Sellers as set forth in
ss.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 the
Company 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 the
Company. Other than as set forth in ss.4(b) of the Disclosure Schedule, there
are no voting trusts, proxies, or other agreements or understandings with
respect to the voting of the capital stock of the Company.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation 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 the Company is subject or any provision
of the charter or bylaws of the Company or (ii) except as set forth in
ss.4(c)(ii) 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 agreement, contract, lease, license, instrument, or other arrangement
to which the Company is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest upon any
of its assets), except in the case of (ii) for such breaches or defaults as
would not, individually or in the aggregate, result in a Material Adverse
Change. The Company is not required 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 the Parties to consummate the transactions
contemplated by this Agreement.
(d) Brokers' Fees. The Company does not have 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.
(e) Title to Assets. The Company has good and marketable title to, or a
valid leasehold interest in, the properties and assets used by it, located on
its premises, or shown on the Most Recent Balance Sheet or acquired after the
date thereof, free and clear of all Security Interests, except for properties
and assets disposed of in the Ordinary Course of Business since the date of the
Most Recent Balance Sheet.
(f) Subsidiaries. The Company does not have any Subsidiaries and does
not control directly
15
or indirectly or have any direct or indirect equity participation in any
corporation, partnership, trust, or other business association.
(g) Financial Statements. Attached hereto as Exhibit A are the
following financial statements (collectively, the "Financial Statements"): (i)
unaudited balance sheets and statements of income as of and for the fiscal year
ended December 31, 2000 (the "Most Recent Fiscal Year End") and as of and for
the fiscal years ended December 31, 1999 and December 31, 1998; and (ii)
unaudited balance sheets and statements of income (the "Most Recent Financial
Statements") as of and for the eleven months ended November 30, 2001 (the "Most
Recent Fiscal Month End") for the Company. The Financial Statements (including
the notes thereto) have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered thereby, present fairly the
financial condition of the Company as of such dates and the results of
operations of the Company for such periods, and are consistent with the books
and records of the Company; provided, however, that the Most Recent Financial
Statements are subject to normal year-end adjustments (which will not be
material individually or in the aggregate) and lack footnotes and other
presentation items.
(h) Events Subsequent to November 30, 2001. Except as otherwise
contemplated by this Agreement and except as set forth in ss.4(h) of the
Disclosure Schedule, since November 30, 2001, the Company has conducted its
Business only in the Ordinary Course of Business and there has not been any
Material Adverse Change. Without limiting the generality of the foregoing, since
that date, the Company has not:
(i) 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 or acquisitions) either involving
more than $1,000 or outside the Ordinary Course of Business;
(ii) issued any note, bond, or other debt security or created,
incurred, assumed or guaranteed any indebtedness for borrowed money or
capitalized lease obligation either involving more than $1,000 singly
or $5,000 in the aggregate;
(iii) imposed any Security Interest upon any of its assets,
tangible or intangible;
(iv) sold, assigned, leased or transferred any of its tangible
assets, except for sales of inventory in the Ordinary Course of
Business;
(v) sold, assigned or transferred any patents, trademarks or
trade names or any material copyrights, trade secrets or other
intangible assets, except in the Ordinary Course of Business;
(vi) suffered any extraordinary losses or waived any rights
material to the conduct of the Company's Business as presently
conducted;
(vii) made any capital expenditure (or series of related
capital expenditures) either involving more than $5,000 or outside the
Ordinary Course of Business;
16
(viii) entered into, amended or extended any agreement,
contract, lease or license (or series of related agreements, contracts,
leases or licenses) either involving more than $5,000 or outside the
Ordinary Course of Business;
(ix) suffered any theft, damage, destruction or casualty loss
to its property, whether or not covered by insurance;
(x) made any change in employment terms for any of its
directors or officers, or any material change in the employment terms
for any of its employees outside the Ordinary Course of Business;
(xi) made any change in its accounting methods, principles or
practices not required by GAAP;
(xii) adopted, amended, modified or terminated any bonus,
profit sharing, incentive, 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);
(xiii) granted any increase in the base compensation of any of
its directors, officers and employees outside of the Ordinary Course of
Business, or made any other change in employment terms for any of its
directors, officers, and employees outside the Ordinary Course of
Business;
(xiv) made any payment (including any dividends or other
distributions with respect to the Common Stock) to any Seller or any
Affiliate of any Seller (other than compensation otherwise payable in
the Ordinary Course of Business to any Seller employed by the Company
and other than as contemplated by this Agreement) or forgiven any
indebtedness due or owing from any Seller or any Affiliate of any
Seller to the Company;
(xv) issued sold or otherwise disposed of any of its capital
stock, or granted any options, warrants or other rights to purchase or
obtain (including upon conversion, exchange or exercise) any of its
capital stock;
(xvi) (A) except in the Ordinary Course of Business,
liquidated inventory or accepted product returns, (B) accelerated
accounts receivable, (C) except where consistent with the Company's
practices not to pay for defective goods or for services not requested,
delayed or postponed the payment of accounts payable or other
Liabilities, or (D) changed in any material respect the Company's
practices in connection with the payment of accounts payables in
respect of purchases from suppliers; or
(xvii) committed to do any of the foregoing.
17
(i) Undisclosed Liabilities. The Company does not have any Liability
(whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due, including any Liability for Taxes), except for (i) Liabilities set forth on
the face of the Most Recent Balance Sheet (or in any notes thereto or to the
Financial Statements for the Most Recent Fiscal Year End) and (ii) Liabilities
which have arisen after the Most Recent Fiscal Month End in the Ordinary Course
of Business (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement, or violation of law).
(j) Legal Compliance. The Company is in compliance in all material
respects with all applicable statutes, laws, ordinances, rules and regulations
of federal, state and local governments (and all agencies thereof), and no
action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against the Company alleging any
failure so to comply.
(k) Company Permits. The Company holds all permits, licenses,
variances, exemptions, orders and approvals of all federal, state, local or
foreign governmental regulatory agencies, authorities, courts or arbitration
tribunals necessary for the lawful conduct of its Business (the "Company
Permits"), except where the failure to hold such permits, licenses, variances,
exemptions, orders and approvals would not reasonably be expected to have a
Material Adverse Effect. The Company is in compliance with the terms of the
Company Permits, except where the failure so to comply would not reasonably be
expected to have a Material Adverse Change.
(l) Tax Matters.
(i) The Company has elected (with the consent of all of its
shareholders), in compliance with all applicable legal requirements, to
be taxed under Subchapter S of the Code and corresponding provisions
under any applicable state and local laws, rules and regulations and
such elections are in effect for the Company. No action has been taken
by the Company or any shareholder of the Company that may result in the
revocation of any such elections. The Company has no "Subchapter C
earnings and profits" as defined in ss.1362(d) of the Code. The Company
has no "net unrealized built-in gain" as such term is defined in
ss.ss.1374(d)(1) and 1374(d)(8) of the Code. To the Sellers' Knowledge,
the Company has no liability, absolute or contingent, for the payment
of any income Taxes under the Code or under the laws of such states or
localities which afford tax treatment similar to that under Subchapter
S of the Code. To the Sellers' Knowledge, the Company has filed all Tax
Returns required to be filed by it (taking into account any extensions
of due dates). To the Sellers' Knowledge, the Company has paid all
material Taxes required to be paid by it (without regard to whether a
Tax Return is required).
(ii) No Tax Return of the Company is under audit or
examination by any taxing authority, and no written notice of such an
audit or examination has been received by the Company. Each deficiency
resulting from any audit or examination relating to Taxes by any taxing
authority has been paid. The federal income Tax Returns of the Company
have not
18
been examined by and settled with the Internal Revenue Service.
(iii) There is no agreement or other document extending, or
having the effect of extending, the period of assessment or collection
of any Taxes.
(iv) The Company is not a party to or bound by any tax sharing
agreement, tax indemnity obligation or similar agreement with respect
to Taxes (including any advance pricing agreement, closing agreement or
other agreement relating to Taxes with any taxing authority).
(v) The Company will not be required to include in a taxable
period ending after the Closing Date taxable income attributable to
income that accrued in a prior taxable period but was not recognized in
any prior taxable period as a result of the installment method of
accounting, the completed contract method of accounting, the long-term
contract method of accounting, the cash method of accounting or ss.481
of the Code with respect to a change in method of accounting occurring
before the Closing Date or comparable provisions of state, local or
foreign tax law.
(vi) The Company has not filed a consent pursuant to or agreed
to the application of ss.341(f) of the Code.
(vii) The Company has not, during the five-year period ending
on the Closing Date, been a personal holding company within the meaning
of ss.541 of the Code.
(viii) The Company has never filed or been included in any
combined or consolidated tax return with any other person or been a
member of an Affiliated Group filing a consolidated federal income Tax
Return.
(ix) The Company will not be liable for any Tax under Code
ss.1374 in connection with the deemed sale of the Company's assets
(including the assets of any qualified subchapter S subsidiary) caused
by the ss.338(h)(10) Election. The Company has not, in the past ten
years, (A) acquired assets from another corporation in a transaction in
which the Company's Tax basis for the acquired assets was determined,
in whole or in part, by reference to the Tax basis of the acquired
assets (or any other property) in the hands of the transferor or (B)
acquired the stock of any corporation which is a qualified subchapter S
subsidiary.
(m) Real Property. The Company does not own any real property. All real
property and interests in real property that are leased by the Company are
referred to herein as "Leased Real Property." ss.4(m) of the Disclosure Schedule
lists and describes briefly all Leased Real Property. Each of the leases listed
on ss.4(m) of the Disclosure Schedule is in full force and effect and there is
no existing default or event of default, real or claimed, or event which with
notice or lapse of time or both would constitute a default thereunder by the
Company or, to the Knowledge of any Seller, any other party to such real
property leases. The buildings and improvements located on the Leased
19
Real Property are each in good repair and condition (normal wear and tear
excepted), free from material structural defects and are in the aggregate
sufficient for the Company's Business as presently conducted. The Leased Real
Property is supplied with utilities and other services necessary for the
operation of the Company's Business as presently conducted. The owner of the
Leased Real Property has good and marketable title to the parcel of real
property, free and clear of any Security Interest, easement, covenant, or other
restriction, except for (i) a first mortgage on the property in favor of
Northern Trust Bank of Florida N.A., and (ii) recorded easements, covenants, and
other restrictions which do not impair the current use, occupancy, or value, or
the marketability of title, of the property subject thereto.
(n) Intellectual Property.
(i) The Company owns or has the right to use pursuant to
license, sublicense, agreement, or permission all Intellectual Property
necessary or desirable for the operation of the Company's Businesses as
presently conducted. Each item of Intellectual Property owned or used
by the Company immediately prior to the Closing hereunder will be owned
or available for use by the Company on identical terms and conditions
immediately subsequent to the Closing hereunder. The Company has taken
all necessary and desirable action to maintain and protect each item of
Intellectual Property that it owns or uses.
(ii) The Company has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual
Property rights of third parties, and none of Sellers has ever received
any charge, complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation, or violation (including
any claim that the Company must license or refrain from using any
Intellectual Property rights of any third party). To the Knowledge of
Sellers, no third party has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual
Property rights of the Company, except as provided in section
ss.4(n)(ii) of the Disclosure Schedule.
(iii) ss.4(n)(iii) of the Disclosure Schedule identifies each
patent or registration which has been issued to the Company with
respect to any of its Intellectual Property, identifies each pending
patent application or application for registration which the Company
has made with respect to any of its Intellectual Property, and
identifies each license, agreement, or other permission which the
Company has granted to any third party with respect to any of its
Intellectual Property (together with any exceptions). Sellers have
delivered to Buyer correct and complete copies of all such patents,
registrations, applications, licenses, agreements, and permissions (as
amended to date) and have made available to Buyer correct and complete
copies of all other written documentation evidencing ownership and
prosecution (if applicable) of each such item. Each pending patent
application has been properly assigned to the Company and at Closing
shall be owned by the Company. ss.4(n)(iii) of the Disclosure Schedule
also identifies each trade name or unregistered trademark used by any
of the Company in connection with its Business. With respect to each
item of Intellectual Property required to be identified in ss.4(n)(iii)
of the Disclosure Schedule:
20
(A) the Company possesses all right, title, and
interest in and to the item, free and clear of any Security
Interest, license, or other restriction;
(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 is pending
or, to the Knowledge of any of Sellers is threatened which
challenges the legality, validity, enforceability, use, or
ownership of the item; and
(D) the Company has not ever agreed to indemnify any
Person for or against any interference, infringement,
misappropriation, or other conflict with respect to the item.
(iv) The Company does not use, pursuant to any license,
sublicense, agreement or permission, any Intellectual Property owned by
a third party (excluding off-the-shelf software pursuant to
"shrink-wrap" or similar license agreements).
(v) To the Knowledge of Sellers, the Company 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 Business as presently
conducted.
(vi) Neither of Sellers has any Knowledge of any new products,
inventions, procedures, or methods of manufacturing or processing that
any competitors or other third parties have developed which reasonably
could be expected to supersede or make obsolete any product or process
of the Company.
(vii) Each of the Company's founders, employees, independent
contractors and other persons or entities who, either alone or in
concert with others, develop, invent, discover, derive, program or
design secrets or other information used in the Company's business, or
who has knowledge of or access to information relating to them, has
entered or, prior to the Closing, will enter into a written agreement
with the Company, (i) providing that these secrets and information are
confidential and proprietary to the Company and are not to be divulged
or misused, and (ii) transferring to the Company all of such employee's
or other person's right, title and interest in and to such secrets and
information and other intangible assets to the extent permitted by
applicable law. A list of such employees is set forth in ss.4(n)(vii)
of the Disclosure Schedule. There is no breach or, to the best of
Seller's Knowledge, threatened breach of any such agreements.
(o) Tangible Assets. The Company owns or leases all buildings,
machinery, equipment, and other tangible assets necessary for the conduct of its
Business as presently conducted. Each such tangible asset is free from material
defects (patent and latent), has been maintained in accordance with normal
industry practice, is in good operating condition and repair (subject to normal
wear and
21
tear), and is suitable for the purposes for which it presently is used.
(p) Inventory. The inventory of the Company is useable and saleable in
the Ordinary Course of Business, subject only to the reserve for inventory
writedown set forth on the face of the Most Recent Balance Sheet (or in the
notes thereto) as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of the Company.
(q) Contracts. ss.4(q) of the Disclosure Schedule lists the Material
Contracts (as hereinafter defined) to which any of the Company is a party.
Sellers have delivered to Buyer a correct and complete copy of each written
Material Contract listed in ss.4(q) of the Disclosure Schedule (as amended to
date) and a written summary setting forth the terms and conditions of each oral
agreement referred to in ss.4(q) of the Disclosure Schedule. With respect to
each such agreement: (A) the agreement is legal, valid, binding, enforceable,
and in full force and effect; (B) the agreement will continue to be legal,
valid, binding, enforceable, and in full force and effect on identical terms
following the consummation of the transactions contemplated hereby; (C) no party
is in breach or default, and no event has occurred which with notice or lapse of
time would constitute a breach or default, or permit termination, modification,
or acceleration, under the agreement; and (D) no party has repudiated any
provision of the agreement. As used herein, "Material Contract" means any
contract or agreement, written or oral (including any and all amendments
thereto, but not including oral contracts in the case of clauses (b) or (i)
below to which the Company is a party, or by which the Company or any of its
assets is bound, and which (a) relates to indebtedness for borrowed money or is
a letter of credit, pledge, bond or similar arrangement running to the account
of or for the benefit of the Company, (b) relates to the purchase, maintenance
or acquisition of, or sale or furnishing of, materials, supplies, merchandise,
machinery, equipment, parts or any other property or services other than in the
Ordinary Course of Business, (c) is a collective bargaining agreement, (d)
obligates the Company not to compete with any business, or which otherwise
restrains or prevents the Company from carrying on any lawful business or which
restricts the right of the Company to use or disclose any information in its
possession (excluding in each case customary restrictive covenants contained in
agreements entered into in the Ordinary Course of Business), (e) relates to (i)
employment, compensation, severance, or consulting between the Company and any
of its officers or directors, or (ii) between the Company and any other
employees or consultants of the Company who are entitled to compensation
thereunder in excess of $50,000 per annum, (f) is a lease or sublease of real
property, or a lease, sublease or other title retention agreement or conditional
sales agreement involving annual payments in excess of $5,000 individually or
$20,000 in the aggregate for any machinery, equipment, vehicle or other tangible
personal property (whether the Company is a lessor or lessee), (g) is a contract
for capital expenditures or the acquisition or construction of fixed assets for
or in respect of any real property involving payments to be made after the date
hereof in excess of $5,000, (h) is a contract granting any Person a Security
Interest in any of the assets of the Company, in whole or in part, (i) is a
contract by which the Company retains any manufacturer's representatives, broker
or other sales agent, distributor or representative or through which the Company
is appointed or authorized as a sales agent, distributor or representative, (j)
is a joint venture or partnership contract or a limited liability company
operating agreement with any Seller, or with any Affiliate of any Seller or (k)
any other agreement (or group of related agreements) the performance of the
executory portion of which involves consideration in excess of $10,000 or which
22
cannot be terminated by the Company upon 30 days notice.
(r) Powers of Attorney. There are no outstanding powers of attorney
executed on behalf of the Company.
(s) Insurance. ss.4(s) 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 any of the Company has been a party, a
named insured, or otherwise the beneficiary of coverage at any time within the
past two (2) years:
(i) the name of the insurer, the name of the policyholder, and
the name of each covered insured; and
(iii) the policy number and the period of coverage.
With respect to each such insurance policy: (A) the coverage provided by the
policy is normal and customary for a company of similar size engaged in the
Business or a business similar to the business; (B) the policy, if presently in
effect, is legal, valid, binding, enforceable and in full force and effect; (C)
the policy, if presently in effect, will continue to be legal, valid, binding,
enforceable and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby; (D) neither the Company
nor, to Sellers' Knowledge, any other party to the policy is in breach or
default (including with respect to the payment of premiums or the giving of
notices), and no event has occurred which, with notice or the lapse of time,
would constitute such a breach or default, or permit termination, modification,
or acceleration, under the policy; and (E) since the date of the policy, no
notice of cancellation or non-renewal with respect to the policy has been
received by the Company. Such policies are sufficient for compliance with all
requirements of law currently applicable to the Company and of all Material
Contracts to which the Company is a party. There are no pending claims with
respect to all such insurance policies.
(t) Litigation. ss.4(t) of the Disclosure Schedule sets forth each
instance in which the Company (i) is subject to any outstanding injunction,
judgment, order, decree, ruling, or charge or (ii) is a party or, to the
Knowledge of Sellers, 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, state, local, or foreign
jurisdiction or before any arbitrator. None of the actions, suits, proceedings,
hearings, and investigations set forth in ss.4(t) of the Disclosure Schedule
could result in any Material Adverse Change. None of Sellers has any reason to
believe that any such action, suit, proceeding, hearing, or investigation may be
brought or threatened against the Company, except as set forth in 4(t) of the
Disclosure Schedule.
(u) Product Warranty. Each product manufactured, sold, leased, or
delivered by the Company has conformed in all material respects with all
applicable contractual commitments and all express and implied warranties, and
the Company does not have any Liability (and to the Knowledge of the
Sellers,there is no Basis for any present or future action, suit, proceeding,
hearing,
23
investigation, charge, complaint, claim, or demand against any of them giving
rise to any Liability) for replacement or repair thereof or other damages in
connection therewith, subject only to the reserve for product warranty claims
set forth on the face of the Most Recent Balance Sheet (or in any notes thereto)
as adjusted for the passage of time through the Closing Date in accordance with
the past custom and practice of the Company. No product manufactured, sold,
leased, or delivered by any of the Company is subject to any guaranty, warranty,
or other indemnity beyond the applicable standard terms and conditions of sale
or lease. ss.4(u) of the Disclosure Schedule includes copies of the standard
terms and conditions of sale or lease for the Company (containing applicable
guaranty, warranty, and indemnity provisions).
(v) Product Liability. The Company does not have any Liability (and to
the Knowledge of the Sellers, there is no Basis for any present or future
action, suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand against any of them giving rise to any Liability) arising out of any
injury to individuals or property as a result of the ownership, possession, or
use of any product manufactured, sold, leased, or delivered by the Company.
(w) Employees. Except as set forth in Section ss.4(w) to the Disclosure
Schedule, to the Knowledge of Sellers, no executive, key employee, or group of
employees has any plans to terminate employment with the Company. The Company is
not a party to or bound by any collective bargaining agreement, nor has it
experienced any strikes, grievances, claims of unfair labor practices, or other
collective bargaining disputes. The Company has not committed any unfair labor
practice. None of Sellers has any Knowledge of any organizational effort
presently being made or threatened by or on behalf of any labor union with
respect to employees of the Company.
(x) Employee Benefits.
(i) ss.4(x) of the Disclosure Schedule lists each Employee
Benefit Plan that the Company maintains or to which the Company
contributes or has any obligation to contribute. With respect to each
Employee Benefit Plan:
(A) each such Employee Benefit Plan (and each related
trust, insurance contract, or fund) complies in form and in
operation in all respects with the applicable requirements of
ERISA, the Code, and other applicable laws;
(B) all required reports and descriptions (including
Form 5500 Annual Reports, summary annual reports, PBGC-1's,
and summary plan descriptions) have been timely filed and
distributed appropriately with respect to each such Employee
Benefit Plan. The requirements of Part 6 of Subtitle B of
Title I of ERISA and Code ss.4980B (COBRA) have been met with
respect to each such Employee Benefit Plan which is an
Employee Welfare Benefit Plan;
(C) all contributions (including all employer
contributions and employee salary reduction contributions)
which are due have been paid to each such Employee Benefit
Plan which is an Employee Pension Benefit Plan or accrued in
accordance
24
with the past custom and practice of the Company, and there
are no accumulated funding deficiencies with respect to any
such Employee Pension Benefit Plan;
(D) each such Employee Benefit Plan which is an
Employee Pension Benefit Plan has received a favorable
determination letter from the Internal Revenue Service as to
its qualification under ss.401(a) of the Code;
(E) The market value of assets under each such
Employee Benefit Plan which is an Employee Pension Benefit
Plan (other than any Multiemployer Plan) equals or exceeds the
present value of all vested and nonvested Liabilities
thereunder determined in accordance with PBGC methods,
factors, and assumptions applicable to an Employee Pension
Benefit Plan terminating on the date for determination;
(F) no "prohibited transaction" (as such term is
defined in ss.406 of ERISA or ss.4975 of the Code) has
occurred with respect to any such Employee Benefit Plan which
is an Employee Pension Benefit Plan (or its related trust)
which could subject the Company or any officer, director or
employee of the Company, to any Tax or penalty imposed under
ss.4975 of the Code or liability under ss.406 of ERISA which
would have a Material Adverse Effect;
(G) Sellers have delivered or made available to Buyer
correct and complete copies of the plan documents and summary
plan descriptions, the most recent determination letter
received from the Internal Revenue Service, the most recent
Form 5500 Annual Report, and all related trust agreements,
insurance contracts and other funding arrangements which
implement each such Employee Benefit Plan;
(H) no such Employee Benefit Plan which is an
Employee Pension Benefit Plan has been completely or partially
terminated or has been the subject of a "reportable event" (as
defined in ss.4043 of ERISA) as to which notices would be
required to be filed with the PBGC which would have a material
adverse effect. To the Knowledge of the Company, no proceeding
by the PBGC to terminate any such Employee Pension Benefit
Plan (other than a Multiemployer Plan) has been instituted;
(I) the Company has not incurred any liability to the
PBGC (except for required premium payments, if any) under
Title IV of ERISA (including any withdrawal liability) with
respect to any such Employee Benefit Plan which is an Employee
Pension Benefit Plan; and
(J) no action, suit, proceeding, hearing or
investigation with respect to the administration or the
investment of assets of any such Employee Benefit Plan (other
than routine claims for benefits) is, to the Knowledge of
Sellers, pending or threatened.
25
(ii) The Company does not contribute to any Multiemployer Plan
or have any Liability (including withdrawal liability as defined in
ERISA ss.4201) under any Multiemployer Plan.
(iii) The Company does not have any obligation to provide
health or other welfare benefits to former, retired or terminated
employees, except as specifically required under ss.4980B of the Code.
With respect to all of its past and present employees, the Company has
complied in all material respects with the notice and continuation
requirements of Part 6 of Subtitle B of Title I of ERISA and of
ss.4980B of the Code.
(y) Guaranties. The Company is not a guarantor or otherwise liable for
any Liability or obligation (including indebtedness) of any other Person.
(z) Environmental, Health, Safety and Other Regulatory Matters.
(i) The Company has complied and is in compliance in all
material respects with all Environmental, Health, and Safety
Requirements applicable to its business.
(ii) Without limiting the generality of the foregoing, the
Company has obtained and complied with, and is in compliance with, all
permits, licenses and other authorizations that are required pursuant
to Environmental, Health, and Safety Requirements for the occupation of
its facilities and the operation of its business.
(iii) Except as set forth in ss.4(z) of the Disclosure
Schedule, the Company has never received any written or oral notice,
report or other information regarding any actual or alleged violation
of Environmental, Health, and Safety Requirements, or any liabilities
or potential liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise), including any investigatory, remedial or
corrective obligations, relating to any of them or its facilities
arising under Environmental, Health, and Safety Requirements.
(iv) Except as set forth in ss.4(z) of the Disclosure
Schedule, none of the following exists at any property or facility
owned or operated by the Company: (1) underground storage tanks, (2)
asbestos-containing material in any form or condition, (3) materials or
equipment containing polychlorinated biphenyls, or (4) landfills,
surface impoundments, or disposal areas.
(v) Neither the Company, nor its predecessors or Affiliates
has treated, stored, disposed of, arranged for or permitted the
disposal of, transported, handled, or released any substance, including
without limitation any hazardous substance, or owned or operated any
property or facility (and no such property or facility is contaminated
by any such substance) in a manner that has given or would give rise to
liabilities, including any liability for response costs, corrective
action costs, personal injury, property damage, natural resources
damages or attorney fees, pursuant to the Comprehensive Environmental
Response,
26
Compensation and Liability Act of 1980, as amended ("CERCLA"), the
Solid Waste Disposal Act, as amended ("SWDA") or any other
Environmental, Health, and Safety Requirements.
(vi) Neither this Agreement nor the consummation of the
transaction that is the subject of this Agreement will result in any
obligations for site investigation or cleanup, or notification to or
consent of government agencies or third parties, pursuant to any of the
so-called "transaction-triggered" or "responsible property transfer"
Environmental, Health, and Safety Requirements.
(vii) Neither the Company, nor any of its predecessors or
Affiliates has, either expressly or by operation of law, assumed or
undertaken any liability, including without limitation any obligation
for corrective or remedial action, of any other Person relating to
Environmental, Health, and Safety Requirements.
(viii) No facts, events or conditions relating to the past or
present facilities, properties or operations of the Company or any of
its predecessors or Affiliates will prevent, hinder or limit continued
compliance with Environmental, Health, and Safety Requirements, give
rise to any investigatory, remedial or corrective obligations pursuant
to Environmental, Health, and Safety Requirements, or give rise to any
other liabilities (whether accrued, absolute, contingent, unliquidated
or otherwise) pursuant to Environmental, Health, and Safety
Requirements, including without limitation any relating to onsite or
offsite releases or threatened releases of hazardous materials,
substances or wastes, personal injury, property damage or natural
resources damage.
(ix) The Company has provided Buyer copies of all Material
Safety Data Sheets delivered to the Company in connection with any
pollutants, contaminants, hazardous or toxic substances or petroleum
currently or in the past used in the business of the Company.
(x) The Company has complied in all material respects with
applicable regulatory requirements affecting the Business, and all
product designs, manufacturing processes and equipment, and finished
device products are in full compliance with the following quality
systems and regulatory requirements: the Company's Quality Policy
Manual, dated October 20, 2000, Food and Drug Administration Quality
System Regulation 21CFR 820; Medical Device Directive MDD93/42
EEC-1993; ISO 9001-1994; and EN46001. Section ss.4(z) of the Disclosure
Schedule lists all facility inspections by regulators resulting in any
notice of infractions, warning or other action, voluntary or mandatory
customer notifications, corrections, recalls, or withdrawal of
products, reports of any device malfunction or defect that could
potentially cause or has caused a death, injury, impairment, or adverse
reaction, and any internal or customer driven corrective actions in the
last three years. The Company has not conducted any clinical trials.
(aa) Certain Business Relationships with the Company. Except as set
forth in ss.4(aa) of the Disclosure Schedule, no officer, director or
shareholder of the Company (nor any Affiliate or
27
member of the immediate family of any such Person) (i) has any direct or
indirect material ownership interest in any customer, supplier or competitor of
the Company or in any Person from whom the Company leases real or personal
property or (ii) is a party to any contract or transaction with the Company or
has any interest in any property used by the Company.
(bb) Disclosure. The representations and warranties contained in this
ss.4 do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this ss.4 not misleading.
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 or its reasonable best
efforts to take all action and to do 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 ss.7).
(b) Notices and Consents. Sellers will cause the Company to give any
notices to third parties, and will cause the Company to use its reasonable best
efforts to obtain any third party consents, that Buyer or CMED reasonably may
request in connection with the matters referred to in ss.4(c) above. Each of the
Parties will (and Sellers will cause the Company to) give any notices to, make
any filings with, and use its reasonable best efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in ss.3(a)(i), ss.3(b)(ii), and
ss.4(c) above.
(c) Operation of Business. Sellers will not cause or permit the Company
to engage in any practice, take any action or enter into any transaction,
outside the Ordinary Course of Business. Without limiting the generality of the
foregoing, Sellers will not cause or permit the Company 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 ss.4(h) above; provided, however, that, notwithstanding
the foregoing provision or any other provision of this Agreement, with the prior
written consent of Buyer (which consent shall not be unreasonably withheld),
Sellers may cause the Company to distribute its cash, cash equivalents and
accounts receivable prior to the Closing Date, provided that such distributions
would not give rise to a Purchase Price Adjustment pursuant to ss.2(e) of this
Agreement.
(d) Preservation of Business. Sellers will use their best efforts to
cause the Company 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.
(e) Full Access. Each of Sellers will permit, and Sellers will cause
the Company to permit, representatives of Buyer to have full access at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of the Company, to all premises, properties, personnel,
28
books, records (including Tax records), contracts and documents of or pertaining
to the Company for the purpose of enabling Buyer to conduct its continuing
business, legal, environmental, financial and accounting due diligence regarding
the Company. In addition, Sellers shall use their reasonable best efforts to
provide Buyer with an opportunity to meet with the Company's key customers and
distribution partners.
(f) Notice of Developments. Sellers will give prompt written notice to
Buyer of any material adverse development causing a breach of any of the
representations and warranties in ss.4 above. Each Party will give prompt
written notice to the others of any material adverse development causing a
breach of any of his or its own representations and warranties in ss.3 above. No
disclosure by any Party pursuant to this ss.5(f), however, shall be deemed to
amend or supplement Annex I, Annex II, or the Disclosure Schedule or to prevent
or cure any misrepresentation, breach of warranty, or breach of covenant.
(g) Exclusivity. From the date of this Agreement until the earlier of
(i) the Closing Date or (ii) the termination of this Agreement, Sellers will
not, and Sellers will cause the Company not to, directly or indirectly) (A) take
any action to solicit, initiate or encourage any proposal or offer or indication
of interest from any Person relating to the acquisition of any capital stock or
other voting securities, or any substantial portion of the assets, of the
Company (including any acquisition structured as a merger, consolidation, or
share exchange) or (B) 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. Sellers will not vote their Company Shares in favor of any such
acquisition structured as a merger, consolidation, or share exchange. Sellers
will notify Buyer immediately if any Person makes any proposal, offer, inquiry
or contact with respect to any of the foregoing.
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 ss.8). Sellers
acknowledge and agree that from and after the Closing Buyer will be entitled to
possession of all documents, books, records (including Tax records), agreements,
and financial data of any sort relating to the Company.
(b) ss.338(h)(10) Election and other Tax Matters.
(i) Sellers and Buyer acknowledge and agree that Sellers are
entering into a sale of their Company Shares rather than the underlying assets
of the Company. Notwithstanding the foregoing, upon written notice from Buyer to
such effect, Sellers will timely join with Buyer in making an election under
ss.338(h)(10) of the Code and Treasury Regulations ss.1.338(h)(10)-1(d) (and any
corresponding elections under any applicable state and local law) (collectively,
a "ss.338(h)(10)
29
Election") with respect to the purchase and sale of the Company Shares from
Sellers under this Agreement. Buyer will make such ss.338(h)(10) Election by
filing Form 8023 with the IRS no later than the fifteenth day of the ninth month
beginning after the month in which the Closing occurs. In connection with the
ss.338(h)(10) Election, Buyer and Sellers shall report for all purposes the
purchase and sale of the Company Shares consistent with the ss.338(h)(10)
Election and the allocation of the Purchase Price as set forth in the Allocation
Schedule referred to in clause (iv) below, and shall take no position contrary
thereto or inconsistent therewith in any income Tax Return, or in any discussion
with or any proceeding before any taxing authority or otherwise; provided,
however, that Buyer (and not Sellers) shall be responsible for the actual
preparation and filing of all such forms, schedules, documents and other
instruments in connection with the ss.338(h)(10) Election; and provided further
that all reasonable costs and expenses incurred in connection with preparing and
filing such documents shall be paid solely by Buyer. Sellers will include any
income, gain, loss, deduction or other tax item resulting from the ss.338(h)(10)
Election on their Tax Returns to the extent required by applicable law. Sellers
will also pay any Tax imposed on the Company attributable to the making of the
ss.338(h)(10) Election (including, without limitation, any Tax arising as the
result of the recognition of any built-in gain pursuant to the provisions of
ss.1374 of the Code and any Tax arising as the result of the "recapture" of
previously deducted items) and Sellers, jointly and severally, will indemnify
Buyer and the Company from and against any Adverse Consequences arising out of
any failure to pay such Tax. Notwithstanding anything contained herein to the
contrary, Buyer shall indemnify and hold each Seller harmless from any increase
in any Tax payable by such Seller as a result of the ss.338(h)(10) Election
("Additional Taxes"). The amount of the Additional Taxes or any Tax savings
shall be computed on a "with and without" basis, i.e., the federal and state
income taxes of each Seller for a taxable year shall be determined assuming the
ss.338(h)(10) Election has been made and assuming the ss.338(h)(10) Election has
not been made with respect to the purchase and sale of the Company Shares, and
assuming (i) that any income or losses resulting from the transaction described
in this Agreement are the sole source of income and losses for each Seller and
(ii) as if each Seller were (A) subject to tax as a resident or domiciliary of
his state of residence or domicile and (B) taxable at the actual maximum rates
applicable to each Seller for the taxable year of Seller in which the sale takes
place under applicable federal and state income tax laws for the year in which
the transaction takes place under this Agreement. For purposes of this
subsection (b), taxable income associated with any prior deferral of Tax
resulting from the use of the cash method of accounting will not be considered
as resulting from the transaction. Not less than fourteen (14) days after Buyer
has provided Sellers with a copy of the Allocation Schedule, Sellers shall
submit a good faith estimate to Buyer (along with any workpapers and supporting
documents applicable thereto) for review and approval (which approval shall not
be unreasonably withheld or delayed). Sellers shall submit the final
computations to Buyer (along with any workpapers and supporting documents
applicable thereto) for review and approval (which approval shall not be
unreasonably withheld or delayed) no later than thirty (30) days prior to the
due date (including extensions) for filing the applicable income Tax Returns and
Buyer shall have ten (10) Business Days to approve or object to such final
computation. Buyer shall indemnify each Seller for any Additional Taxes on or
before the date such Additional Taxes are due or, if later, within five (5)
Business Days after approval by Buyer of the computations by Sellers described
above.
(ii) Buyer will bear any sales or use Tax attributable to the
making of the
30
ss.338(h)(10) election and will indemnify Sellers from and against any
Liability arising out of any failure to pay such Tax.
(iii) Buyer will be responsible for preparing and filing all
income and franchise Tax Returns of the Company relating to any tax
period (including partial periods) that ends on or prior to the Closing
Date (a "Pre-Closing Tax Period"), which are filed after the Closing
Date. Buyer will allow Sellers an opportunity to review and comment on
such Tax Returns (including any amended Returns). To the extent
permitted by applicable law, Sellers shall include any income, gain,
loss, deduction or other tax items for such periods on their Tax
Returns in a manner consistent with the Schedule K-1s furnished by the
Company to Sellers for such periods. Sellers shall reimburse Buyer for
any Taxes of the Company with respect to such periods within fifteen
(15) days after payment by Buyer or the Company of such Taxes to the
extent such Taxes are not reflected in the reserve for Tax Liability
(rather than any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) shown on the face of
the Closing Balance Sheet. Seller shall also reimburse Buyer for the
reasonable cost of preparing any such Tax Returns for the Pre-Closing
Tax Period.
(iv) Buyer and Sellers agree that the Purchase Price and the
liabilities of the Company will be allocated to the assets of the
Company as shown on the Allocation Schedule, and Buyers and Sellers
will file, and will cause the Company to file, all Tax Returns
(including amended returns and claims for refund) and information
reports in a manner consistent with such allocation.
(v) Buyer and Sellers agree that in the event that the
Purchase Price is adjusted under ss.2(e) or a Milestone Payment is made
pursuant to ss.2(f), the Purchase Price allocated to the assets of the
Company under ss.6(b)(iv) will be revised to reflect such adjustments
or payments, and Sellers will report any gain or loss resulting from
such adjustment or payments on their Tax Returns for the year in which
such adjustment or payments are made; provided, however, that Buyer
shall indemnify Sellers against any Additional Taxes payable by Sellers
as a result of the ss.338(h)(10) Election as set forth in clause (i) of
this subsection (b).
(c) Transition. Sellers will not, and will cause the Company not to,
take any action that is designed or intended to have the effect of discouraging
any lessor, licensor, customer, supplier, or other business associate of any of
the Company from maintaining the same business relationships with the Company
after the Closing as it maintained with the Company prior to the Closing.
(d) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any 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, occurrence,
event, incident, action, failure to act, or transaction on or prior to the
Closing Date involving the Company, each of the other Parties will cooperate
with the contesting or defending Party and its or his counsel in the contest,
31
make available their personnel and provide such testimony and access to their
books and records as shall be 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 this Agreement).
(e) Confidentiality. Each of Sellers will treat and hold as such all of
the Confidential Information, refrain from using any of the Confidential
Information except in connection with this Agreement, and deliver promptly to
Buyer or destroy, at the request and option of Buyer, all tangible embodiments
(and all copies) of the Confidential Information which are in his possession. In
the event that any of Sellers is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any
Confidential Information, that Seller will notify Buyer promptly of the request
or requirement so that Buyer may seek an appropriate protective order or waive
compliance with the provisions of this ss.6(e). If, in the absence of a
protective order or the receipt of a waiver hereunder, any of Sellers is, on the
advice of counsel, compelled to disclose any Confidential Information to any
tribunal or else stand liable for contempt, that Seller may disclose the
Confidential Information to the tribunal; provided, however, that the disclosing
Seller shall use his reasonable best efforts to obtain, at the reasonable
request of Buyer and at Buyer's cost and expense, an order or other assurance
that confidential treatment will be accorded to such portion of the Confidential
Information required to be disclosed as Buyer shall designate. The foregoing
provisions shall not apply to any Confidential Information which is generally
available to the public immediately prior to the time of disclosure.
(f) Ownership of Certain Accounts Receivable. If, after the Closing
Date, any Seller receives a payment for any of the accounts receivable of the
Company, that Seller shall deliver such payment (whether represented by check or
otherwise) to the offices of Buyer. Notwithstanding any other provision in this
Agreement, any payment related to the Company's accounts receivable for products
invoiced prior to or at the time of Closing on the Closing Date (whether such
payment is delivered to Buyer by a Seller pursuant to this Section 6(f) or
received by the Company directly from one of its customers) shall be the
property of Sellers. Buyer will segregate any such payments and deliver them to
either Seller for the benefit of both Sellers. Each Seller acknowledges and
agrees that once Buyer has delivered a payment to either Seller, Buyer shall
have no additional responsibility to Sellers for such payment and the other
Seller's only recourse will be against the Seller receiving such payment from
the Buyer. Any payment related to the Company's accounts receivable for products
invoiced after the time of Closing on the Closing Date shall be the property of
Buyer.
7. Conditions to Obligation to Close.
(a) Conditions to Obligations of Buyer and CMED. The obligations of
Buyer and CMED 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 ss.3(a)
and ss.4 above that are
32
qualified as to their materiality shall be true and correct and any
such representations and warranties that are not so qualified shall be
true and correct in all material respects, in each case, at and as of
the Closing Date;
(ii) Sellers shall have performed and complied with all of
their covenants hereunder in all material respects through the Closing;
(iii) the Company shall have procured all of the third party
consents specified in ss.5(b) above;
(iv) 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, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, (C) affect adversely the right of Buyer to own the
Company Shares and to control the Company, or (D) affect adversely the
right of any of the Company to own its assets and to operate its
businesses (and no such injunction, judgment, order, decree, ruling, or
charge shall be in effect);
(v) Sellers shall have delivered to Buyer and CMED a
certificate to the effect that each of the conditions specified above
in ss.7(a)(i)-(iv) is satisfied in all respects;
(vi) the Company shall have received all authorizations,
consents, and approvals of governments and governmental agencies
referred to in ss.3(a)(i), ss.3(b)(ii), ss.3(c)(ii), and ss.4(c) above;
(vii) Sellers shall have caused Lewis Avenue Holdings, Inc. to
execute and deliver to Buyer a new lease (the "Sarasota Lease") for the
property located at 1121 Lewis Avenue, Sarasota, Florida, having
substantially in the form set forth in Exhibit B to this Agreement;
(viii) each of Winston E. Barzell and Willet F. Whitmore III
shall have entered into employment agreements (the "Employment
Agreements") with Buyer substantially in the forms set forth in Exhibit
C to this Agreement;
(ix) between the date of this Agreement and the Closing Date,
no Material Adverse Change in the Company shall have occurred and no
material adverse change in the Company's relationship with its
employees shall have occurred;
(x) except for the Employment Agreements and the Sarasota
Lease, all contracts, agreements or arrangements between, among or
otherwise involving the Company and a Seller shall have been terminated
on or prior to the Closing Date, and the Company shall have no further
obligations to Sellers thereunder;
33
(xi) Buyer shall have received from counsel to Sellers an
opinion in form and substance as set forth in Exhibit D attached
hereto, addressed to Buyer, and dated as of the Closing Date;
(xii) Buyer shall have received the resignations, effective as
of the Closing, of each director of the Company other than those whom
Buyer shall have specified in writing at least five Business Days prior
to the Closing;
(xiii) Sellers shall have terminated without liability to the
Buyer or the Company that certain Cross Purchase Agreement made as of
May 27, 1999 between the Sellers;
(xiv) all actions to be taken by Sellers in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to Buyer and CMED;
Buyer may waive any condition specified in this ss.7(a) if it executes a writing
so stating at or prior to the Closing.
(b) Conditions to Obligation of Sellers. The obligation of Sellers 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 ss.3(b)
and ss.3(c) above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) Buyer and CMED shall have performed and complied with all
of their respective 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) Buyer and CMED shall have delivered to Sellers a
certificate to the effect that each of the conditions specified above
in ss.7(b)(i)-(iii) is satisfied in all respects;
(v) the Parties and the Company shall have received all
authorizations, consents, and approvals of governments and governmental
agencies referred to in ss.3(a)(i), ss.3(b)(ii), ss.3(c)(ii), and
ss.4(c) above;
34
(vi) CMED shall have delivered to Sellers an executed
piggyback registration rights agreement with respect to CMED Stock,
substantially in the form set forth in Exhibit E attached hereto;
(vii) Sellers shall have received from counsel to Buyer and
CMED an opinion in form and substance as set forth in Exhibit F
attached hereto, addressed to Sellers, and dated as of the Closing
Date; and
(viii) all actions to be taken by Buyer and CMED in connection
with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to Sellers.
Sellers may waive any condition specified in this ss.7(b) if they execute a
writing so stating at or prior to the Closing.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties.
All of the representations and warranties of Sellers contained in this
Agreement shall survive the Closing hereunder (even if Buyer knew or had reason
to know of any misrepresentation or breach of warranty at the time of Closing)
and continue in full force and effect for a period of three (3) years
thereafter.
(b) Indemnification Provisions for Benefit of Buyer and CMED.
(i) In the event any of Sellers breaches (or in the event any
third party alleges facts that, if true, would mean any of Sellers has
breached) any of their representations, warranties, and covenants
contained herein (other than the covenants in ss.2(a) above and the
representations and warranties in ss.3(a) above), and, if there is an
applicable survival period pursuant to ss.8(a) above, provided that
Buyer or CMED makes a written claim for indemnification against any of
Sellers pursuant to ss.11(h) within such survival period, then each
Seller agrees to indemnify Buyer and CMED from and against the entirety
of any Adverse Consequences Buyer or CMED may suffer through and after
the date of the claim for indemnification (including any Adverse
Consequences Buyer or CMED may suffer after the end of any applicable
survival period) resulting from, arising out of, relating to, in the
nature of, or caused by the breach (or the alleged breach); provided,
however, that Sellers shall not have any obligation to indemnify Buyer
or CMED from and against any Adverse Consequences resulting from,
arising out of, relating to, in the nature of, or caused by the breach
(or alleged breach) of any representation or warranty of Sellers until
Buyer or CMED have together suffered Adverse Consequences by reason of
all such breaches (or alleged breaches) in excess of a $10,000
aggregate threshold (at which point Sellers will be obligated to
indemnify Buyer and CMED from and against all such Adverse Consequences
relating
35
back to the first dollar).
(ii) In the event any Seller breaches (or in the event any
third party alleges facts that, if true, would mean any of Sellers has
breached) any of his covenants in ss.2(a) above or any of his
representations and warranties in ss.3(a) above, and, if there is an
applicable survival period pursuant to ss.8(a) above, provided that
Buyer or CMED makes a written claim for indemnification against such
Seller pursuant to ss.10(h) within such survival period, then such
Seller agrees to indemnify Buyer and CMED from and against the entirety
of any Adverse Consequences Buyer or CMED may suffer through and after
the date of the claim for indemnification (including any Adverse
Consequences Buyer or CMED may suffer after the end of any applicable
survival period) resulting from, arising out of, relating to, in the
nature of, or caused by the breach (or the alleged breach).
(iii) Each Seller agrees to indemnify Buyer and CMED from and
against the entirety of any Adverse Consequences Buyer or CMED may
suffer resulting from, arising out of, relating to, in the nature of,
or caused by any Liability of any of the Company and its Subsidiaries
(x) for any Taxes of the Company and its Subsidiaries with respect to
any Tax year or portion thereof ending on or before the Closing Date
(or for any Tax year beginning before and ending after the Closing Date
to the extent allocable (determined in a manner consistent with
ss.6(b)) to the portion of such period beginning before and ending on
the Closing Date), to the extent such Taxes are not reflected in the
reserve for Tax Liability (rather than any reserve for deferred Taxes
established to reflect timing differences between book and Tax income)
shown on the face of the Closing Balance Sheet, and (y) for the unpaid
Taxes of any Person (other than any of the Company and its
Subsidiaries) under Reg. ss.1.1502-6 (or any similar provision of
state, local, or foreign law), as a transferee or successor, by
contract, or otherwise.
(c) Indemnification Provisions for Benefit of Sellers.
(i) In the event Buyer breaches (or in the event any third
party alleges facts that, if true, would mean Buyer has breached) any
of its representations, warranties, and covenants contained herein
(other than the covenants in ss.2(a) above and the representations and
warranties in ss.3(b) above), and, if there is an applicable survival
period pursuant to ss.8(a) above, provided that any Seller makes a
written claim for indemnification against Buyer pursuant to ss.10(h)
within such survival period, then Buyer agrees to indemnify each Seller
from and against the entirety of any Adverse Consequences such Seller
may suffer through and after the date of the claim for indemnification
(including any Adverse Consequences such Seller may suffer after the
end of any applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged
breach); provided, however, that Buyer shall not have any obligation to
indemnify Sellers from and against any Adverse Consequences resulting
from, arising out of, relating to, in the nature of, or caused by the
breach (or alleged breach) of any representation or warranty of Buyer
until Sellers have suffered Adverse Consequences by reason of all such
breaches (or alleged breaches) in excess of a $10,000 aggregate
threshold (at which point Buyer will be obligated to indemnify
36
the Seller from and against all such Adverse Consequences relating back
to the first dollar).
(ii) In the event Buyer breaches (or in the event any third
party alleges facts that, if true, would mean Buyer has breached) any
of its covenants in ss.2(a) above or any of its representations and
warranties in ss.3(b) above, and, if there is an applicable survival
period pursuant to ss.8(a) above, provided that Seller makes a written
claim for indemnification against Buyer pursuant to ss.10(h) within
such survival period, then Buyer agrees to indemnify Seller from and
against the entirety of any Adverse Consequences Seller may suffer
through and after the date of the claim for indemnification (including
any Adverse Consequences Seller may suffer after the end of any
applicable survival period) resulting from, arising out of, relating
to, in the nature of, or caused by the breach (or the alleged breach).
(iii) In the event CMED breaches (or in the event any third
party alleges facts that, if true, would mean CMED has breached) any of
its representations, warranties, and covenants contained herein (other
than the representations and warranties in ss.3(c) above), and, if
there is an applicable survival period pursuant to ss.8(a) above,
provided that any Seller makes a written claim for indemnification
against CMED pursuant to ss.10(h) within such survival period, then
CMED agrees to indemnify each Seller from and against the entirety of
any Adverse Consequences such Seller may suffer through and after the
date of the claim for indemnification (including any Adverse
Consequences such Seller may suffer after the end of any applicable
survival period) resulting from, arising out of, relating to, in the
nature of, or caused by the breach (or the alleged breach); provided,
however, that CMED shall not have any obligation to indemnify Sellers
from and against any Adverse Consequences resulting from, arising out
of, relating to, in the nature of, or caused by the breach (or alleged
breach) of any representation or warranty of CMED until Sellers have
suffered Adverse Consequences by reason of all such breaches (or
alleged breaches) in excess of a $10,000 aggregate threshold (at which
point CMED will be obligated to indemnify the Seller from and against
all such Adverse Consequences relating back to the first dollar).
(iv) In the event CMED breaches (or in the event any third
party alleges facts that, if true, would mean CMED has breached) any of
its representations and warranties in ss.3(c) above, and, if there is
an applicable survival period pursuant to ss.8(a) above, provided that
Seller makes a written claim for indemnification against CMED pursuant
to ss.10(h) within such survival period, then CMED agrees to indemnify
Seller from and against the entirety of any Adverse Consequences Seller
may suffer through and after the date of the claim for indemnification
(including any Adverse Consequences Seller may suffer after the end of
any applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged
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 ss.8, then the Indemnified
Party
37
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
fifteen (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 Third Party Claim involves only money damages and does
not seek an injunction or other equitable relief, and (C) 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 ss.8(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 ss.8(d)(ii)(A) or
(C) 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 Indemnified Party
need not consult with, or obtain any consent from, any Indemnifying
Party in connection therewith), (B) the Indemnifying Parties will
reimburse the Indemnified Party promptly and periodically for the costs
of defending against the Third Party Claim (including reasonable
attorneys' fees and expenses), and (C) the Indemnifying Parties will
remain responsible for 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 to the fullest extent provided
in this ss.8. Notwithstanding anything contained herein to the
contrary, in the event the condition in ss.8(d)(ii)(B) applies, the
provisions of subsection (iii) above shall apply.
(e) Determination of Adverse Consequences. All indemnification payments
under this ss.8 shall be deemed adjustments to the Purchase Price and Buyer may,
at its option, offset any indemnification payments to be received by it pursuant
to this ss.8 against any Milestone Payments or Annual Incentive Payments due and
owing to Sellers.
38
(f) Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy (including without limitation any such remedy
arising under Environmental, Health, and Safety Requirements) any Party may have
with respect to the Company or the transactions contemplated by this Agreement.
Each of Sellers hereby agrees that he or it will not make any claim for
indemnification against the Company by reason of the fact that he was a
director, officer, employee, or agent of any such entity or was serving at the
request of any such entity as a partner, trustee, director, officer, employee,
or agent of another entity (whether such claim is for judgments, damages,
penalties, fines, costs, amounts paid in settlement, losses, expenses, or
otherwise and whether such claim is pursuant to any statute, charter document,
bylaw, agreement, or otherwise) with respect to any action, suit, proceeding,
complaint, claim, or demand brought by Buyer against such Seller (whether such
action, suit, proceeding, complaint, claim, or demand is pursuant to this
Agreement, applicable law, or otherwise).
9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(i) Buyer, CMED and Sellers may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) Buyer may terminate this Agreement by giving written
notice to Sellers on or before the 30th day following the date of this
Agreement if Buyer is not reasonably satisfied with the results of its
continuing business, legal, environmental, financial and accounting due
diligence regarding the Company, including, among other things, the
status and viability of the Company's ongoing relationships with its
key customers and distribution partners;
(iii) Buyer or CMED may terminate this Agreement by giving
written notice to Sellers at any time prior to the Closing (A) in the
event either of Sellers has breached any material representation,
warranty or covenant contained in this Agreement in any material
respect, Buyer or CMED has notified Sellers 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 February 11, 2002, by reason of the failure of any condition
precedent under ss.7(a) hereof (unless the failure results primarily
from Buyer or CMED itself breaching any representation, warranty, or
covenant contained in this Agreement); and
(iv) Sellers may terminate this Agreement by giving written
notice to Buyer and CMED at any time prior to the Closing (A) in the
event Buyer or CMED has breached any material representation, warranty,
or covenant contained in this Agreement in any material respect, any of
Sellers has notified Buyer and CMED 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
February 11, 2002, by reason of the failure of any condition precedent
under ss.7(b) hereof (unless the failure results primarily from any of
39
Sellers themselves breaching any representation, warranty, or covenant
contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to ss.10(a) above, all rights and obligations of the Parties hereunder
shall terminate without any Liability of any Party to any other Party, and
neither Party shall be Liable to the other Party for any costs and expenses
incurred by such other Party in connection with the transaction contemplated
hereby.
10. Miscellaneous.
(a) Nature of Certain Obligations.
(i) The covenants of each of Sellers in ss.2(a) above
concerning the sale of his Company Shares to Buyer and the
representations and warranties of each of Sellers in ss.3(a) above
concerning the transaction are several obligations. This means that the
particular Seller making the representation, warranty or covenant will
be solely responsible to the extent provided in ss.8 above for any
Adverse Consequences Buyer may suffer as a result of any breach
thereof.
(ii) The remainder of the representations, warranties, and
covenants in this Agreement are joint and several obligations. This
means that each Seller will be responsible to the extent provided in
ss.8 above for the entirety of any Adverse Consequences Buyer or CMED
may suffer as a result of any breach thereof.
(b) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of Buyer
and CMED, on the one hand, and Sellers, on the other hand; provided, however,
that any Party may make any public disclosure it believes in good faith 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).
(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 understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof. In entering into this Agreement and any of the transactions contemplated
by this Agreement, no Party has relied on oral statements or other inducements
of the other not expressly provided for in this Agreement.
(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. Prior to
40
the Closing Date, no Party may assign either this Agreement or any of his or its
rights, interests, or obligations hereunder without the prior written approval
of Buyer, CMED and Sellers. After the Closing Date, (i) each Seller may assign
his respective rights to receive Milestone Payments and other payments pursuant
to this Agreement and (ii) Buyer and CMED may each assign its respective rights
and obligations pursuant to this Agreement in connection with a merger,
consolidation, transfer of assets or similar transaction, provided, that in each
case the acquiring or surviving Person expressly assumes the obligations being
assigned, including but not limited to any obligation to pay Milestone Payments
to Sellers.
(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 Sellers:
-------------- Winston E. Barzell
Willet F. Whitmore III
Barzell Whitmore Maroon Bells, Inc.
1121 Lewis Avenue
Sarasota, Florida 34237
Copy to:
-------- David S. Band
Abel, Band, Russell, Collier, Pitchford & Gordon
P.O. Box 49948
240 S. Pineapple Avenue
Sarasota, Florida 34230
If to Buyer:
------------ CIVCO Medical Instruments Co., Inc.
102 First St. South
Kalona, IA 52247
Phone: (319) 656-4447
Fax: (319) 656-4451
(with a copy to CMED)
If to CMED:
---------- Colorado MEDtech, Inc.
6175 Longbow Drive
Boulder, Colorado 80301
Attention: General Counsel
41
Copy to:
-------- James L. Palenchar
Bartlit Beck Herman Palenchar & Scott
1899 Wynkoop Street, Suite 800
Denver, Colorado 80202
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, telex, 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. 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 set forth in Section 10(m) below, this
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Colorado without giving effect to any choice or conflict of
law provision or rule (whether of the State of Colorado or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Colorado.
(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
Buyer, CMED and Sellers. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(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 and the Company will bear his or its
own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby. Sellers
agree that the Company has not borne and will not bear any of Sellers' costs and
expenses (including any of their legal fees and expenses) in connection with
this Agreement or any of the transactions contemplated hereby.
(m) Covenant Not to Compete.
(1) Except as set forth in Section 10(m)(2) or (3) below, in
consideration of Sellers receipt of the Purchase Price for the Company Shares
pursuant to this Agreement, each Seller severally agrees that for a period of
three (3) years from and after the later of (i) the Closing Date and (ii) the
termination of the employment period pursuant to such Seller's Employment
Agreement (the
42
"Non-Compete Period"), such Seller will not, in association with or as an
officer, principal, member, advisor, agent, partner, director, stockholder,
employee or consultant of any corporation (or sub-unit, in the case of a
diversified business) or other enterprise, entity or association, work on the
acquisition or development of, or engage in any line of business, property or
project which is, directly or indirectly, competitive with any business that the
Company or Buyer's minimally invasive technology business engages in or, to
Sellers knowledge, is planning to engage in during the Non-Compete Period,
including but not limited to the Business. Such restriction shall cover each
Seller's activities anywhere in the world.
Each Seller severally agrees that, during the applicable Non-Compete
Period, such Seller will not solicit or induce any Person who is or was employed
by Buyer or any of Buyer's Affiliates, including the Company, at any time during
such term or period (A) to interfere with the activities or businesses of Buyer
or any of its Affiliates or (B) to discontinue his or her employment with Buyer
or any of its Affiliates, nor shall such Seller employ any such Person.
Each Seller further agrees that, during the applicable Non-Compete
Period, such Seller will not, directly or indirectly, influence or attempt to
influence any customers, distributors or suppliers of Buyer or any of its
Affiliates, including the Company, to divert their business to any competitor of
Buyer or such Affiliates, including the Company, or in any way interfere with
the relationship between any such customer, distributor or supplier and Buyer
and any such Affiliate (including, without limitation, making any negative
statements or communications about the Buyer's minimally invasive technology
business and the Company). During the applicable Non-Compete Period, such Seller
will not, directly or indirectly, acquire or attempt to acquire any business in
the world that competes with or is substantially related to the Business and to
which Buyer or any of its Affiliates, prior to the termination of the
Non-Compete Period, has made an acquisition proposal relating to the possible
acquisition of such business by Buyer or any such Affiliate, or to Seller's
knowledge, has planned, discussed or contemplated making such an acquisition
proposal (such business, an "Acquisition Target"), or take any action to induce
or attempt to induce any Acquisition Target to consummate any acquisition,
investment or other similar transaction with any person other than Buyer or such
Affiliate.
Each Seller severally agrees and hereby acknowledges that (i) the
provisions of this ss.10(m) do not impose a greater restraint than is necessary
to protect the goodwill or other business interests of Buyer and its Affiliates,
including the Company; (ii) such provisions contain reasonable limitations as to
time, scope of activity and geographical area to be restrained; and (iii) the
consideration provided under this Agreement, including without limitation, any
amounts or benefits provided under ss.2 of this Agreement, is sufficient to
compensate such Seller for the restrictions contained in this ss.10(m). In
consideration of the foregoing, such Seller agrees that it or he will not assert
that, and it should not be considered that, any provision of this ss.10(m) is
otherwise void, voidable or unenforceable or should be voided or held
unenforceable. The agreements of Sellers contained in this ss.10(m) are given as
an inducement to, and part of the consideration for, Buyer's purchase of the
Company Shares under this Agreement.
This Section 10(m) shall be subject to the provisions of the Employment
Agreements as such provisions specify the governing law and dispute resolution
terms applicable to disputes regarding
43
the covenants set forth in this Section 10(m), including, without limitation,
the provisions of Section 6.1 and 6.2 of the Employment Agreements. The
provisions of this Agreement concerning governing law and dispute resolution,
including without limitation, Sections 10(i), (q) and (r), shall not apply to
disputes arising under this Section 10(m).
(2) Notwithstanding the foregoing Section 10(m)(1), the Parties
acknowledge and agree that, with respect to Winston E. Barzell ("Barzell"),
Barzell shall be permitted to continue his consulting services for original
equipment manufacturers ("OEMs") that involve products, technologies or clinical
applications relating to the Business consistent with past practice, provided
the consulting services do not involve products or technologies that compete
with or represent a conflict of interest with the products or technologies of
the Business. In addition, the Parties acknowledge and agree that Barzell shall
be permitted to continue to perform drug studies in the ordinary course of
Barzell's medical practice, which at the present time include the following:
Bayer Pharmaceutical Division, Myriad Pharmaceuticals, Inc., Abbott
Laboratories, Matritech, Inc., Pracis Pharmaceuticals, Inc., Anthra
Pharmaceuticals, Inc. and ILEX Oncology Services, Inc. Barzell has disclosed to
Buyer all current consulting relationships, including current drug studies, and
has provided all current consulting agreements (other than consulting agreement
for drug studies). Barzell shall not enter into any new consulting relationship
without the prior approval of Buyer, which approval shall not be unreasonably
withheld, other than for drug studies in the ordinary course of Barzell's
medical practice.
(3) Notwithstanding the foregoing Section 10(m)(1), the Parties
acknowledge and agree that, with respect to Willet F. Whitmore III ("Whitmore"),
Whitmore shall be permitted to continue his consulting services for OEMs that
involve products, technologies or clinical applications relating to the Business
consistent with past practice, provided the consulting services do not involve
products or technologies that compete with or represent a conflict of interest
with the products or technologies of the Business. In addition, the Parties
acknowledge and agree that Whitmore shall be permitted to continue his
consulting services with Boston Scientific Corporation and shall be permitted to
perform drug studies in the ordinary course of his medical practice, in the
event the Whitmore returns to the practice of medicine during the period
Whitmore is employed by Buyer. Whitmore has disclosed to Buyer all current
consulting relationships and has provided all current consulting agreements.
Whitmore shall not enter into any new consulting relationship without the prior
approval of Buyer, which approval shall not be unreasonably withheld, other than
for drug studies in the ordinary course of Whitmore's medical practice, in the
event that Whitmore returns to the practice of medicine during the period he is
employed by Buyer, and additional consulting agreements with Boston Scientific
Corporation consistent with past practices of Whitmore.
(n) Construction. 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. All accounting terms
used in this Agreement shall have the meanings given to them in accordance with
GAAP. The singular shall mean the plural, the plural shall mean the singular,
and the use of any gender shall include all genders; and all references to any
particular party defined herein shall be deemed to refer to each and every
Person defined herein as such party individually, and to all of them,
collectively, jointly and severally, as though each were named wherever the
applicable defined term is used. All
44
references to "Sections" shall be deemed to refer to the provisions of this
Agreement. All references to time herein shall mean Mountain Standard Time or
Mountain Daylight Time, as then in effect. The words "this Agreement," "hereof,"
"hereunder," "herein," "hereby," or words of similar import shall refer to this
Agreement as a whole and not to a particular Section, subsection, clause or
other subdivision of this Agreement, unless the context otherwise requires. 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 the relative levels of specificity) which 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.
(o) 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.
(p) 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
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.
(q) Submission to Jurisdiction. Except as provided in Section (10)(m),
each of the parties (i) submits to the jurisdiction of any state or federal
court sitting in Colorado solely for the purpose of permitting the Buyer to seek
and obtain an injunction or appropriate equitable or other relief to prohibit a
violation, or prevent a continuing violation, of the provisions of this
Agreement, and each party agrees that all claims in respect of such injunction
or appropriate equitable or other relief may be heard and determined in any such
court, provided that no such application to a court shall in any way be
permitted to stay or otherwise impede the progress of the arbitration proceeding
set forth in Section 10(r), (ii) agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court, (iii) waives
any defense of inconvenient forum to the maintenance of any action or proceeding
so brought and waives any bond, surety, or other security that might be required
of any other Party with respect thereto and (iv) agrees that a final judgment in
any action or proceeding so brought shall be conclusive and may be enforced by
suit on the judgment or in any other manner provided by law or at equity.
(r) Arbitration. This Section 10(r) governs disputes under this
Agreement, except as set forth in Section 10(m) above. Any and all disputes
arising under or related to this Agreement which cannot be resolved through
negotiations between the Parties shall be submitted to binding arbitration. If
the Parties fail to reach a settlement of their dispute within fifteen (15) days
after the earliest date upon which one of the Parties notified the other(s) of
its desire to attempt to resolve the dispute, then the dispute shall be promptly
submitted to arbitration by a single neutral arbiter through the Judicial
Arbiter Group ("JAG"), any successor of the Judicial Arbiter Group, or any
similar arbitration
45
provider who can provide a former judge to conduct such arbitration if JAG is no
longer in existence, or an arbiter appointed by the court. The arbiter shall be
selected by JAG or the court on the basis, if possible, of his or her expertise
in the subject matter(s) of the dispute. The decision of the arbiter shall be
final, non-appealable and binding upon the parties, and it may be entered in any
court of competent jurisdiction. The arbitration shall take place in Denver,
Colorado. The arbiter shall be bound by the laws of the State of Colorado
applicable to the issues involved in the arbitration and all Colorado rules
relating to the admissibility of evidence, including, without limitation, all
relevant privileges and the attorney work product doctrine. All such discovery
shall be completed in accordance with the time limitations prescribed in the
Colorado Rules of Civil Procedure, unless otherwise agreed by the Parties or
ordered by the arbiter on the basis of strict necessity adequately demonstrated
by the Party requesting an extension or reduction of time. The arbiter shall
have the power to grant equitable relief where applicable under Colorado law.
The arbiter shall issue a written opinion setting forth her or his decision and
the reasons therefor within thirty (30) days after the arbitration proceeding is
concluded. The obligation of the Parties to submit any dispute arising under or
related to this Agreement to arbitration as provided in this subsection (r)
shall survive the termination of this Agreement. Notwithstanding the foregoing,
pending the conclusion of an arbitration proceeding, Buyer may seek and obtain
an injunction or other appropriate relief from a court of competent jurisdiction
to prohibit the violation of the confidentiality provisions set forth in ss.6(e)
of this Agreement, but no such application to a court shall in any way be
permitted to stay or otherwise impede the progress of the arbitration
proceeding.
(s) Release. Upon Closing, each Seller, on his own behalf, hereby gives
to Buyer and each of Buyer's stockholders, affiliates, directors, officers,
employees, successors and assigns, a full and complete release from and against
any and all causes of action, suits, rights, claims and demands whatsoever, in
law or in equity, whether presently known or known, asserted or unasserted,
against, arising out of or pertaining to the matter set forth in ss.4(n)(ii) of
the Disclosure Schedule.
*****
46
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
Colorado MEDtech, Inc
By: /s/ Stephen K. Onody
---------------------------------------
Name: Stephen K. Onody
Title: President and CEO
CIVCO Medical Instruments Co., Inc.
By: /s/ Charles R. Klasson, Jr.
--------------------------------------
Name: Charles R. Klasson, Jr.
Title: President
Winston E. Barzell
/s/ Winston E. Barzell
---------------------------------------
Willet F. Whitmore III
/s/ Willet F. Whitmore III
---------------------------------------