-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FDUc0PWJvngIfDyWisr6/0OSTjmOO/ZRtZ/26bVdtQfwtidZbummj89Uu4hTGYQK 4XdnivlVr9XQCLq4TAxEIQ== 0000009892-96-000020.txt : 19961031 0000009892-96-000020.hdr.sgml : 19961031 ACCESSION NUMBER: 0000009892-96-000020 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19960927 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19960927 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BARD C R INC /NJ/ CENTRAL INDEX KEY: 0000009892 STANDARD INDUSTRIAL CLASSIFICATION: 3841 IRS NUMBER: 221454160 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-06926 FILM NUMBER: 96636301 BUSINESS ADDRESS: STREET 1: 730 CENTRAL AVE CITY: MURRAY HILL STATE: NJ ZIP: 07974 BUSINESS PHONE: 9082778000 MAIL ADDRESS: STREET 1: 730 CENTRAL AVENUE CITY: MURRAY HILL STATE: NJ ZIP: 07974 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT: SEPTEMBER 16, 1996 C. R. BARD, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) New Jersey 1-6926 22-1454160 (STATE OF COMMISSION FILE NUMBER IRS EMPLOYER INCORPORATION) IDENTIFICATION NO. 730 Central Avenue, Murray Hill, New Jersey (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) 07974 (ZIP CODE) (908) 277-8000 (REGISTRANT'S TELEPHONE NUMBER) Item 2. Acquisition or Disposition of Assets. Pursuant to an Agreement and Plan of Merger, dated as of August 2, 1996, as amended (the "Agreement and Plan of Merger"), among C. R. Bard, Inc. ("Bard"), CRB Acquisition Company, a wholly-owned subsidiary of Bard ("CRB"), and IMPRA, Inc. ("IMPRA"), on September 16, 1996 CRB was merged with and into IMPRA as a result of which IMPRA has become a wholly-owned subsidiary of Bard. The shares of common stock of IMPRA outstanding immediately prior to the merger were converted into the right to receive a pro rata portion of $143,196,000. The purchase price is subject to adjustment as provided in the Agreement and Plan of Merger. In addition, Bard acquired certain related real estate from affiliates of IMPRA for $3,000,000. Such amounts were financed by Bard through borrowings. IMPRA, a privately held company, develops, manufactures and markets vascular grafts used for blood vessel replacement surgery. Bard intends to continue such business. The Press Release, dated September 16, 1996, is attached hereto as Exhibit 99 and is incorporated herein by reference. Item 7. Financial Statements and Exhibits. a) Financial Statements of IMPRA, Inc. Independent Auditors' Report. . . . . . . . . . . . . .Page E-2 Consolidated Balance Sheets at June 30, 1996 and 1995. Page E-3 Consolidated Statements of Income and Retained Earnings for the Years Ended June 30, 1996 and 1995. . Page E-5 Consolidated Statements of Cash Flows for the Years Ended June 30, 1996 and 1995. . . . . . . . . . .Page E-6 Notes to Consolidated Financial Statements for the Years Ended June 30, 1996 and 1995. . . . . . . . . . .Page E-8 b) Pro Forma Financial Statements. The following unaudited pro forma combined condensed financial statements are filed with this report: Unaudited Pro Forma Combined Condensed Balance Sheet as of June 30, 1996. . . . . . . . . . . . . . . . . . . . . Page F-1 Unaudited Pro Forma Combined Condensed Consolidated Statement of Income: Year Ended December 31, 1995. . . . . . . . . . . Page F-3 Six Months Ended June 30, 1996. . . . . . . . . . Page F-4 - 2 - The following Unaudited Pro Forma Combined Condensed Balance Sheet as of June 30, 1996 and the Unaudited Pro Forma Combined Condensed Statements of Income for the twelve months ended December 31, 1995 and six months ended June 30, 1996 give effect to the merger described in Item 2 accounted for under the purchase method of accounting. The Unaudited Pro Forma Combined Condensed Financial Statements are based on the historical Consolidated Financial Statements of Bard and IMPRA under the assumptions and adjustments set forth in the accompanying Notes to the Unaudited Pro Forma Combined Condensed Financial Statements. The Unaudited Pro Forma Combined Condensed Balance Sheet assumes that the merger was consummated on June 30, 1996 and the Unaudited Pro Forma Combined Condensed Statements of Income assumes the merger was consummated on January 1, 1995. The fiscal year of Bard ends on December 31 and the fiscal year of IMPRA ends on June 30. For purposes of presenting the Unaudited Pro Forma Combined Condensed Statements of Income the historical statements of IMPRA were compiled on a calendar year basis ended December 31, 1995, and six months ended June 30, 1996 consistent with Bard's calendar year-end. The pro forma adjustments are based on the Agreement and Plan of Merger which provides for IMPRA common stockholders to receive $143,196,000. Bard utilized borrowings to finance the merger. For purposes of presenting the Unaudited Pro Forma Combined Condensed Balance Sheet, IMPRA's assets and liabilities have been recorded at their estimated fair market values and the excess purchase price has been assigned to goodwill. These fair values are based on preliminary estimates. Upon completion of a detailed review of assets and liabilities, including intangibles, certain adjustments may be required to finalize the purchase accounting that could be material to the Company's financial statements. The Unaudited Pro Forma Combined Condensed Statements of Income exclude any benefits that result from the merger due to synergies that may be derived and the elimination of duplicative efforts. The Unaudited Pro Forma Combined Condensed Financial Statements may not be indicative of the results that actually would have occurred if the merger had been consummated on the dates indicated or which may be obtained in the future. The Unaudited Pro Forma Combined Condensed Financial Statements should be read in conjunction with the historical Consolidated Financial Statements and Notes for IMPRA and Bard. - 3 - c) Exhibits. No. Description 2 (a) Agreement and Plan of Merger dated as of August 2, 1996 among C.R. Bard, Inc., CRB Acquisition Corp. and IMPRA, Inc. 2 (b) First Amendment to the Agreement and Plan of Merger dated as of September 10, 1996 among C.R. Bard, Inc., CRB Acquisition Corp. and IMPRA, Inc. 99 News Release - Bard Announces Acquisition of IMPRA SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. C. R. BARD, INC. (Registrant) By: William C. Bopp /s/ William C. Bopp Executive Vice President and Chief Financial Officer Dated: September 27, 1996 - 4 - Unaudited Pro Forma Combined Condensed Balance Sheet
June 30, 1996 Historical Pro Forma (Dollars in thousands) Bard IMPRA Adjustments Total Assets Current Assets Cash and Short-Term Investments $ 64,500 $ 6,900 $ 71,400 Accounts Receivable, net 232,400 7,800 240,200 Inventories 245,600 3,900 249,500 Other Current Assets 9,500 4,200 $ (2,500)(1) 11,200 Total Current Assets 552,000 22,800 (2,500) 572,300 Property, Plant and Equipment 214,400 3,000 800 (2) 218,200 Intangible Assets, net 308,300 600 141,000 (3) 449,900 Other Assets 75,100 500 1,500 (4) 77,100 $1,149,800 $26,900 $140,800 $1,317,500 Liabilities and Shareholders' Investment Current Liabilities Short-Term Borrowings and Current Maturities of Long-Term Debt $ 159,100 $ 2,800 $ (1,700)(5) $ 160,200 Accounts Payable 35,700 2,600 38,300 Accrued Expenses 129,300 6,000 12,700 (6) 148,000 Federal and Foreign Income Taxes 3,900 (2,300)(6) 1,600 Total Current Liabilities 328,000 11,400 8,700 348,100 Long-Term Debt 194,800 100 154,300 (4) 349,200 Other Long-Term Liabilities 43,100 43,100 Shareholders' Investment Preferred Stock Common Stock 14,300 14,300 Capital in Excess of Par Value 72,300 200 (200)(7) 72,300 Retained Earnings 494,900 15,200 (15,200)(7) 494,900 Other 2,400 (6,800)(6) (4,400) 583,900 15,400 (22,200) 577,100 $1,149,800 $26,900 $140,800 $1,317,500
See accompanying Notes to Unaudited Pro Forma Combined Condensed Balance Sheet. F - 1 NOTES TO UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEET The Unaudited Pro Forma Combined Condensed Balance Sheet gives effect to the merger, which was accounted for under the purchase method of accounting, as if it had been consummated on June 30, 1996. The following is a summary of adjustments reflected in the Unaudited Pro Forma Combined Condensed Balance Sheet: 1) Represents the settlement of IMPRA's related party notes receivable at the date of merger. These proceeds have been presented as a reduction to the long-term debt financing required. 2) Represents the acquisition of the Tempe manufacturing facility and adjustments to reflect the fair value of IMPRA's property, plant and equipment. 3) Represents the adjustment required to record goodwill related to the merger and adjustments to reflect the fair value of IMPRA's intangibles. The purchase price of $143,196,000 has been adjusted to include the direct costs of the acquisition paid by Bard. 4) Represents the issuance of debt and deferral of debt issuance costs to acquire the outstanding shares of IMPRA. Although the acquisition was initially financed with commercial paper, the Company anticipates refinancing approximately this amount with long-term debt in the fourth quarter. The long-term debt will be at higher interest rates. For pro forma purposes long-term debt assumptions were utilized. 5) Represents the repayment of various bank notes payable at the time of closing. 6) Represents direct acquisition costs and one-time charges to be incurred by Bard related to the integration of the IMPRA business and their associated tax effects. 7) Represents the elimination of IMPRA's historical equity. F - 2 Unaudited Pro Forma Combined Condensed Income Statement
For the Twelve Month Period 12/31/95 Historical Pro Forma (Dollars in thousands) Bard IMPRA Adjustments Total Net sales $1,137,800 $45,600 $1,183,400 Costs and Expenses Cost of Goods Sold 550,000 7,100 557,100 Marketing, Selling and Administrative 354,600 29,000 $ 3,600 (1) 387,200 Research and Development 75,600 2,700 78,300 Costs to Combine Operations 17,700 9,000 (2) 26,700 997,900 38,800 12,600 1,049,300 Operating Income 139,900 6,800 (12,600) 134,100 Interest Expense (Income) 24,200 (300) 11,300 (3) 35,200 Other Income (Expense), net 7,800 (300) 7,500 Income Before Taxes 123,500 6,800 (23,900) 106,400 Provision (Benefit) for Income Taxes 36,700 2,800 (6,600)(4) 32,900 Net Income $ 86,800 $ 4,000 $(17,300) $ 73,500 Weighted Average Number of Common Shares Outstanding 56,731,000 56,731,000 Earnings Per Share of Common Stock $ 1.53 $ 1.30
See accompanying Notes to Unaudited Pro Forma Combined Condensed Income Statement. F - 3 Unaudited Pro Forma Combined Condensed Income Statement
For the Six Month Period 6/30/96 Historical Pro Forma (Dollars in thousands) Bard IMPRA Adjustments Total Net sales $ 584,400 $25,800 $ 610,200 Costs and Expenses Cost of Goods Sold 283,900 4,300 288,200 Marketing, Selling and Administrative 176,400 16,600 $ 1,800 (1) 194,800 Research and Development 39,100 1,600 40,700 499,400 22,500 1,800 523,700 Operating Income 85,000 3,300 (1,800) 86,500 Interest Expense (Income) 12,100 (300) 5,700 (3) 17,500 Other Income (Expense), net (23,300) (300) (23,600) Income Before Taxes 49,600 3,300 (7,500) 45,400 Provision (Benefit) For Income Taxes (5,000) 1,300 (2,200)(4) (5,900) Net Income $ 54,600 $ 2,000 $(5,300) $ 51,300 Weighted Average Number of Common Shares Outstanding 57,009,000 57,009,000 Earnings Per Share of Common Stock $ .96 $ .90
See accompanying Notes to Unaudited Pro Forma Combined Condensed Income Statement. F - 4 NOTES TO UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENTS OF INCOME The Unaudited Pro Forma Combined Condensed Statements of Income have been prepared to reflect the merger as if it occurred on January 1, 1995. The merger has been accounted for under the purchase method of accounting. The excess of the purchase price over the fair value of the net assets acquired (goodwill) is being amortized on a straight-line basis over a 40-year period. The following is a summary of adjustments reflected in the Unaudited Pro Forma Combined Condensed Statements of Income: 1) Represents the amortization of additional goodwill over 40 years and the adjustment to depreciation resulting from the acquisition of the Tempe manufacturing facility. 2) Represents one-time charges to be incurred by Bard related to the integration of the IMPRA business. 3) Represents the increase in interest expense resulting from the merger. The acquisition was financed with borrowings at an assumed long-term rate of 7.25%. Interest expense includes amortization of long-term debt issuance costs. 4) Represents the tax effect of the Unaudited Pro Forma Combined Condensed Statements of Income adjustments, excluding the goodwill amortization. F - 5 EX-2 2 Exhibit 2(a) AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER, dated as of August 2, 1996, by and among C.R. Bard, Inc., a New Jersey corporation ("Buyer"), CRB Acquisition Company, an Arizona corporation and a wholly-owned subsidiary of Buyer ("Buyer Sub"), and IMPRA, Inc., an Arizona corporation ("IMPRA"). The parties hereto are sometimes hereinafter referred to collectively as the "Companies." Buyer Sub and IMPRA are sometimes hereinafter referred to collectively as the "Constituent Corporations," or individually as a "Constituent Corporation." WHEREAS, the respective Boards of Directors of the Companies deem it advisable and in the best interests of their respective shareholders that Buyer acquire IMPRA by the merger of Buyer Sub with and into IMPRA upon the terms and subject to the conditions set forth herein (the "Merger"). NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, the parties hereto agree as follows: ARTICLE I THE MERGER ARTICLE I THE MERGER 1.1 The Merger1.1 The Merger . Subject to the terms and conditions of this Agreement, at the Effective Time (as defined in Section 1.2 hereof) of the Merger, Buyer Sub shall be merged with and into IMPRA, with IMPRA being the surviving corporation in such Merger (the "Surviving Corporation") and the separate existence of Buyer Sub shall thereupon cease. The Merger shall have the effects set forth in Section 10-1106 of the Arizona Business Corporation Act (as amended, "ABCA"). Immediately following the Effective Time of the Merger, the Surviving Corporation shall be a wholly-owned subsidiary of Buyer. 1.2 Effective Time of the Merger1.2 Effective Time of the Merger . The Merger shall become effective upon the completion of the filing of properly executed Articles of Merger and a Plan of Merger with the Arizona Corporation Commission, which filing shall be made on the Closing Date after satisfaction of the conditions set forth in Article VIII. When used in this Agreement, the term "Effective Time" with respect to the Merger shall mean the date and time at which such Articles of Merger and Plan of Merger are successfully filed. ARTICLE II BUYER AND THE SURVIVING CORPORATIONARTICLE II BUYER AND THE SURVIVING CORPORATION 2.1 Articles of Incorporation of the Surviving Corporation2.1 Articles of Incorporation of the Surviving Corporation . The Articles of Incorporation of Buyer Sub as in effect at the Effective Time shall be the Articles of Incorporation of the Surviving Corporation of the Merger. 2.2 Bylaws of the Surviving Corporation2.2 Bylaws of the Surviving Corporation . The Bylaws of Buyer Sub as in effect at the Effective Time shall be the Bylaws of the Surviving Corporation. 2.3 Directors and Officers of the Surviving Corporation2.3 Directors and Officers of the Surviving Corporation . (a) The directors of Buyer Sub at the Effective Time shall be the initial directors of the Surviving Corporation and shall hold office from the Effective Time until their respective successors are duly elected or appointed and qualified in the manner provided in the Articles of Incorporation and Bylaws of the Surviving Corporation, or as otherwise provided by law. (b) The officers of Buyer Sub at the Effective Time shall be the initial officers of the Surviving Corporation and shall hold office from the Effective Time until removed or until their respective successors are duly elected or appointed and qualified in the manner provided in the Articles of Incorporation and Bylaws of the Surviving Corporation, or as otherwise provided by law. ARTICLE III EXCHANGE OF SHARESARTICLE III EXCHANGE OF SHARES 3.1 Disposition of Buyer Sub Shares; IMPRA Treasury Shares3.1 Disposition of Buyer Sub Shares, IMPRA Treasury Shares . At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof: (a) The shares of Buyer Sub common stock which shall be outstanding immediately prior to the Effective Time of the Merger shall be converted into a number of shares of common stock of the Surviving Corporation equal to the number of shares of common stock of Buyer Sub then outstanding. (b) Each share of common stock of IMPRA ("IMPRA Share") held in the treasury of IMPRA or by any subsidiary of IMPRA and each such IMPRA Share held by Buyer or any subsidiary of Buyer immediately prior to the Effective Time shall be canceled and retired and cease to exist, and no consideration shall be given in exchange therefor. 3.2 Exchange of IMPRA Shares3.2 Exchange of IMPRA Shares . (a) Each IMPRA Share outstanding immediately prior to the Effective Time (other than IMPRA Shares canceled as set forth in Section 3.1(b) above) shall at the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive in cash an amount equal to One Hundred Forty Three Million One Hundred Seventy Eight Thousand Five Hundred Thirty Nine Dollars ($143,178,539) divided by the number of shares of Common Stock outstanding on the date hereof entitled thereto (subject to adjustment as provided in Sections 3.4 and 3.5 and subject to reduction as provided in Article X and the Escrow Agreement), ninety percent (90%) of which amount prior to adjustment and reduction, if any (the "Preliminary Purchase Price Payment"), shall be payable to the holder thereof upon the surrender of the certificate formerly representing such IMPRA Share in accordance with this Section 3.2 and ten percent (10%) of which amount prior to adjustment and reduction, if any (the "Indemnification Escrow Payment"), shall be held by the escrow agent (the "Escrow Agent") as provided for in Section 10.1(c) hereof. (b) Immediately following the Effective Time, each record holder (a "Shareholder") of any certificate or certificates which immediately prior to the Effective Time represented outstanding IMPRA Shares (the "Certificates") whose IMPRA Shares were converted into the right to receive a portion of the Purchase Price (as defined in Section 3.4) shall be entitled to surrender his or her Certificates to Buyer for cancellation in exchange for the Shareholder's pro rata share of the Preliminary Purchase Price Payment, and Buyer hereby agrees to cause such Shareholder's pro rata share of the Preliminary Purchase Price Payment to be paid to such person at such time. If any Shareholder shall fail to surrender his or her Certificates promptly following the Effective Time, Buyer shall send to such Shareholder notice of the Merger and instructions for use in effecting the surrender of the Certificates in exchange for the Shareholder's pro rata share of the Purchase Price and the holder of such Certificates shall be entitled to receive in exchange therefor solely the Shareholder's pro rata share of the Purchase Price less any applicable stock transfer taxes, and such Certificates shall forthwith be canceled. No interest shall be paid or accrued for the benefit of holders of the Certificates on the consideration payable upon the surrender of the Certificates. It shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer. (c) From and after the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the IMPRA Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for payment, they shall be canceled and exchanged for a pro rata share of the Preliminary Purchase Price Payment in accordance with the procedures set forth in this Section and Section 3.4. (d) At or prior to the Effective Time of the Merger, Buyer shall deliver irrevocably to the Escrow Agent immediately available funds in an aggregate amount equal to the Indemnification Escrow Payment. As provided in Article X hereof, the Indemnification Escrow Payment shall be held in escrow (the "Indemnification Escrow") and invested by the Escrow Agent. Income and earnings therefrom shall become funds of the Indemnification Escrow to be disbursed as provided in Article X of this Agreement and in the Escrow Agreement. 3.3 No Further Rights in IMPRA Shares3.3 No Further Rights in IMPRA Shares . All cash, or cash equivalents, received by any Shareholders pursuant to this Agreement shall be deemed to have been delivered and received in full satisfaction of all rights pertaining to such Shareholders' IMPRA Shares. At the Effective Time of the Merger, the holders of certificates representing outstanding IMPRA Shares shall cease to have any rights with respect to shares (other than such rights as they may have as dissenting shareholders under the ABCA), and their sole right shall be to receive their pro rata share of the Purchase Price. Dissenting shareholders shall have the rights accorded by the ABCA. 3.4 The Purchase Price3.4 The Purchase Price . The aggregate merger consideration for all outstanding IMPRA Shares shall be a cash amount equal to One Hundred Forty Three Million One Hundred Seventy Eight Thousand Five Hundred Thirty Nine Dollars ($143,178,539) (the "Closing Price") plus an amount (the "Adjustment Amount"), which a positive or a negative number, as determined below, subject to reduction as provided in Section 3.4(e), Article X and the Escrow Agreement ("Purchase Price"). (a) Within sixty (60) days after the Effective Time, the Representative (as defined below) shall cause to be delivered to Buyer a consolidated balance sheet of IMPRA as at the close of business at the Effective Time (the "Effective Time Balance Sheet") together with the related consolidated statements of income, shareholder's equity and cash flows for the period from June 30, 1996 to the Effective Time (the "Related Effective Time Statements") audited by IMPRA's current independent accountants, which audit shall include a physical inventory that representatives of Buyer may observe. The Effective Time Balance Sheet and the Related Effective Time Statements shall be prepared in accordance with generally accepted accounting principles applied on a basis consistent with past practice, and the Effective Time Balance Sheet shall fairly present the assets and liabilities and financial condition of IMPRA at the Effective Time. The reasonable cost of the audit pursuant to this Section 3.4(a) shall be borne by the Surviving Corporation. After the Effective Time, Buyer agrees to give the Representative and IMPRA's current accountants reasonable access to IMPRA's books and records and to make available to such parties such employees of IMPRA and the Surviving Corporation as may be reasonably necessary in connection with the preparation of the Effective Time Balance Sheet. (b) The Effective Time Balance Sheet shall become final and binding on IMPRA and Buyer thirty (30) days after its delivery to Buyer, unless Buyer gives the Representative written notice of Buyer's disagreement with respect to any item included in such Effective Time Balance Sheet. During said thirty (30) day period, Buyer and Buyer's representatives shall be given reasonable access to all of the working papers of IMPRA's current independent accountants for the purpose of its review of the Effective Time Balance Sheet. Buyer shall notify Representative in writing by the end of such thirty (30) day period of any objection it may have to the Effective Time Balance Sheet, which objection shall identify the basis of such objection and any adjustments to the Effective Time Balance Sheet that Buyer proposes to make (the "Proposed Adjustments"). (c) If Buyer provides written notice to the Representative objecting to the Effective Time Balance Sheet within the period specified in subparagraph (b) above, Representative shall notify Buyer of his approval or disapproval of the Proposed Adjustments to the Effective Time Balance Sheet contained in such written objection within thirty (30) days of his receipt of such written objection. If Representative shall fail to notify Buyer in writing of his disapproval of the Proposed Adjustments within said thirty (30) day period, or Representative notifies Buyer of his approval of such Proposed Adjustments within said thirty (30) day period, such adjustments shall be made to the Effective Time Balance Sheet, and the Effective Time Balance Sheet, as so adjusted, shall be final and binding upon all parties. If, however, Representative shall notify Buyer in writing of his disapproval of any or all of the Proposed Adjustments within said thirty (30) day period and Representative and Buyer cannot reach agreement with respect to the Proposed Adjustments and the objections thereto raised by Representative within thirty (30) days of the date of receipt by Buyer of Representative's objections (or such longer period as may be acceptable to Buyer and Representative), Buyer and Representative shall submit the Proposed Adjustments in dispute to the Arbitrating Accountants (as defined below) for resolution. The Arbitrating Accountants shall have no authority (x) to decide any issues related to the Effective Time Balance Sheet other than those issues expressly referred to them for arbitration pursuant to the terms hereof, or (y) to determine that any disputed Proposed Adjustment shall be made in excess (negative or positive) of the amount originally proposed by Buyer. (d) If the parties shall have submitted a dispute to the Arbitrating Accountants, the parties shall instruct the Arbitrating Accountants to resolve the disputed Proposed Adjustments within thirty (30) business days after such adjustments are submitted to them, and such resolution shall be final and binding upon all parties hereto. Upon such resolution, the adjustments to the Effective Time Balance Sheet determined by the Arbitrating Accountants shall be made and the Effective Time Balance Sheet, as so adjusted, shall be final and binding upon all parties. (e) The fees and expenses of the Arbitrating Accountants shall be paid by Buyer; provided that the portion of such fees and expenses equal to the lesser of (i) 100% or (ii) the percentage obtained by dividing (A) the aggregate dollar amount of the adjustments to the Effective Time Balance Sheet determined under Section 3.4(d), by (B) the aggregate dollar amount of the disputed Proposed Adjustments shall be reimbursed to Buyer from the Indemnification Escrow. (f) The "Arbitrating Accountants" shall be Price Waterhouse LLP (provided that Price Waterhouse LLP shall not represent IMPRA or Buyer and shall not have represented such persons within the three (3) prior years), or if Price Waterhouse LLP shall not be available, a "Big Six" accounting firm that is mutually agreed to by Buyer and Representative. (g) Upon the Effective Time Balance Sheet (including any adjustments) becoming final and binding on all parties as set forth above, the Adjustment Amount shall be determined by the Buyer. Buyer's determination shall be final and binding. The Adjustment Amount shall equal the difference between the Net Worth (as defined below) as shown on the Effective Time Balance Sheet and (y) the Net Worth as shown on IMPRA's Balance Sheet at June 30, 1996. "Net Worth" shall equal the amount by which assets exceed liabilities. Buyer shall provide notice to the Representative and all Shareholders of the Adjustment Amount and final Purchase Price within two (2) business days of such amounts becoming final. 3.5 Adjustment of Purchase Price3.5 Adjustment of Purchase Price. (a) If the Adjustment Amount is a positive number, ninety percent (90%) of such amount shall be paid by Buyer to Shareholders pro rata in cash and ten percent (10%) to Escrow Agent (the "Escrow Adjustment") by wire transfer to the financial institution identified by Escrow Agent of immediately available funds on behalf of the Shareholders within ten (10) business days of determination, and (b) if the Adjustment Amount is a negative number, it shall be paid to Buyer in cash from the Indemnification Escrow within ten (10) business days of receipt of notice of determination. Interest shall accrue and be due on any amounts payable under this Section 3.5 from the Effective Time through the date such amounts are paid hereunder at the Prime Rate, which shall mean the base interest rate on corporate loans at large United States money center commercial banks as published in the Wall Street Journal under the caption "Prime Rate." 3.6 Closing3.6 Closing . The closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Squire, Sanders & Dempsey, Two Renaissance Square, 40 North Central Avenue, Suite 2700, Phoenix, Arizona 85004 at 9:00 a.m., local time, on the first business day (the "Closing Date") after the later of (x) August 30, 1996, or (y) the day on which all of the conditions set forth in Article VIII hereof are satisfied or waived, or at such other date, time and place as the Companies shall otherwise agree. (a) At the Closing, IMPRA shall deliver to Buyer the following: (i) Resolutions. Copies of resolutions of IMPRA certified by a Secretary, Assistant Secretary, or other appropriate officer of IMPRA, authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby and copies of resolutions of the meeting of Shareholders of IMPRA (or written consent in lieu thereof), certified by a Secretary, Assistant Secretary or other appropriate officer of IMPRA, authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby. (ii) Share Certificates. Certificates, other than those held by any dissenting shareholder, duly endorsed in blank or accompanied by appropriate stock powers. (iii) Resignations. Resignations of certain officers and all directors of IMPRA effective as of the Effective Time, which Buyer shall request in writing prior to the Closing. (iv) Opinion of Counsel. Opinion of Polese, Pietzsch, Williams & Nolan, P.A. as to the matters set forth in Exhibit "B." (v) Consulting Agreements. The Consulting Agreements called for by Section 7.11. (vi) Noncompete Agreements. The Noncompete Agreements called for by Section 7.9. (vii) Tax Clearances. Tax clearances from the Department of Economic Security and the Arizona Department of Revenue. (viii) Conditions Precedent. Evidence reasonably satisfactory to Buyer that all conditions to Buyer's obligations hereunder have been satisfied in all material respects. (b) At the Closing, Buyer shall deliver to Shareholders the Preliminary Purchase Price Payment in cash in accordance with Section 3.2 hereof, less any outstanding amounts owed to IMPRA by such Shareholders, and in the case of Harold and Elizabeth Green, amounts owed to IMPRA by IPE (as defined below) as of the Closing. (c) At the Closing, Buyer shall deliver to Escrow Agent the Indemnification Escrow Payment, by wire transfer to the financial institution identified by Escrow Agent of immediately available funds in accordance with Section 3.2 hereof. (d) At the Closing, Buyer shall deliver to IMPRA the following: (i) Resolutions. Copies of resolutions of Buyer and Buyer Sub certified by a Secretary, Assistant Secretary, or other appropriate officer of Buyer, authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby. (ii) Opinion of Counsel. Opinion of Buyer's in-house general counsel as to the matters set forth in Exhibit "B." (iii) Consulting Agreements. The Consulting Agreements called for by Section 7.11. (iv) Real Estate Documents. The Real Estate Documents called for by Section 7.7 executed by all parties thereto. (v) Noncompete Agreements. The Noncompete Agreements called for by Section 7.9. (vi) Conditions Precedent. Evidence reasonably satisfactory to IMPRA that all conditions to IMPRA's obligations hereunder have been satisfied in all material respects. (e) At the Closing, Buyer shall (i) deliver to Alex. Brown & Sons Incorporated the fee payable under that certain Letter Agreement dated November 14, 1994 between IMPRA and Alex. Brown & Sons Incorporated and (ii) make provision for full payment of all transactional fees and expenses of IMPRA incurred in relation to the transactions contemplated hereby, including but not limited to legal fees and expenses payable to Polese, Pietzsch, Williams & Nolan and Morrison & Foerster LLP. 3.7 Supplementary Action3.7 Supplementary Action . If at any time after the Effective Time, any further assignments or assurances in law or any other things are necessary or desirable to vest or to perfect or confirm of record in the Surviving Corporation the title to any property or rights of either Constituent Corporation, or otherwise to carry out the provisions of this Agreement, the officers and directors of the Surviving Corporation are hereby authorized and empowered on behalf of the Constituent Corporations, in the name of and on behalf of either Constituent Corporation as appropriate, to execute and deliver any and all things necessary or proper to vest or to perfect or confirm title to such property or rights in the Surviving Corporation and otherwise to carry out the purposes and provisions of this Agreement. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYERARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER As used in this Agreement, (i) the term "Material Adverse Effect" with respect to any party hereto means any change or changes in, or effect or effects on such party or any of its subsidiaries, that, individually or in the aggregate, (x) is materially adverse to the business, assets, market value, results of operations, or financial condition of such party and its subsidiaries, taken as a whole, or (y) is probable to materially and adversely affect the ability of such party to (A) operate or conduct its business substantially in the manner in which it is currently operated or conducted or (B) substantially perform its obligations hereunder and consummate the transactions contemplated hereby, (ii) the word "subsidiary" when used with respect to any party means any corporation or other organization, whether incorporated or unincorporated, of which such party or any other subsidiary of such party is a general partner (excluding partnerships the general partnership interests of which held by such party or any subsidiary of such party do not have a majority of the voting interests in such partnership) or of which at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporations or other organizations is directly or indirectly owned or controlled by such party and/or by any one or more of the subsidiaries, excluding in the case of IMPRA, Original Equipment Manufacturers of Arizona, Inc. (dba International Polymer Engineering) ("IPE"), and (iii) the term "Knowledge" with respect to IMPRA shall mean the actual knowledge of any of the persons set forth on Schedule 4 and with respect to Buyer shall mean the actual knowledge of any of Buyer's executive officers. Buyer and Buyer Sub represent and warrant to IMPRA, except as set forth in the Disclosure Letter delivered to IMPRA at or prior to the date hereof (the "Buyer Disclosure Letter"), as follows: 4.1 Organization4.1 Organization . Each of Buyer and Buyer Sub is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has the corporate power to carry on its business as it is now being conducted or presently proposed to be conducted and to own all of its properties and assets. Buyer is duly qualified as a foreign corporation to do business, and is in good standing (to the extent the concept of good standing exists), in each jurisdiction where the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, except where the failure to be so qualified will not have a Material Adverse Effect. 4.2 Authority Relative to this Agreement4.2 Authority Relative to this Agreement . Each of Buyer and Buyer Sub has the corporate power to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement by Buyer and Buyer Sub and the consummation by each of Buyer and Buyer Sub of the transactions contemplated hereby have been duly authorized by the respective Boards of Directors of Buyer and Buyer Sub, and this Agreement and each of the transactions contemplated hereby has been approved by Buyer as the sole stockholder of Buyer Sub. No other corporate proceedings on the part of either Buyer or Buyer Sub are necessary to approve this Agreement or the transactions contemplated hereby, and this Agreement constitutes the valid and binding obligation of Buyer and Buyer Sub, enforceable against each in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors, and the rules of law governing specific performance, injunctive relief and other equitable remedies. 4.3 Consents and Approvals; No Violations4.3 Consents and Approvals; No Violations . Except for applicable requirements of state or foreign laws relating to takeovers, state securities or blue sky laws, filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and filing and recordation of Articles of Merger and a Plan of Merger under the ABCA, no filing with, and no permit, authorization, consent or approval of, any public body or authority is necessary for the consummation by Buyer or Buyer Sub of the transactions contemplated by this Agreement. Neither the execution and delivery of this Agreement by Buyer or Buyer Sub, nor the consummation by Buyer or Buyer Sub of the transactions contemplated hereby, nor compliance by Buyer or Buyer Sub with any of the provisions hereof, will (a) result in any breach of the Articles of Incorporation or Bylaws of Buyer or Buyer Sub, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, agreement or other instrument or obligation to which Buyer or any of its subsidiaries is a party or by which any of them or any of their properties or assets may be bound or (c) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Buyer, any of its subsidiaries or any of their properties or assets, except in the case of clauses (b) and (c) for violations, breaches or defaults that would not have a Material Adverse Effect. ARTICLE V REPRESENTATIONS AND WARRANTIES OF IMPRAARTICLE V REPRESENTATIONS AND WARRANTIES OF IMPRA IMPRA represents and warrants to Buyer and Buyer Sub, except as set forth in the Disclosure Letter delivered to Buyer at or prior to the date hereof (the "IMPRA Disclosure Letter"), as follows: 5.1 Organization; Permits5.1 Organization Permits . IMPRA is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has the corporate power to carry on its business as it is now being conducted and to own all of its properties and assets. True and complete copies of the Articles of Incorporation and Bylaws of IMPRA with all amendments and restatements thereto through the date hereof have been provided to Buyer prior to the date hereof. IMPRA is duly qualified as a foreign corporation to do business, and is in good standing (to the extent the concept of good standing exists), in each jurisdiction where the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, except where the failure to be so qualified will not have a Material Adverse Effect. To IMPRA's Knowledge, it has all business licenses, permits and approvals necessary to conduct its business as presently conducted, except where the failure to have such permit or approval does not have a Material Adverse Effect. 5.2 Capitalization; Shareholders5.2 Capitalization; Shareholders . As of the date hereof, the authorized capital stock of IMPRA is as set forth in the Disclosure Letter. As of the date hereof, the number and class of IMPRA Shares which are issued and outstanding are as set forth in the Disclosure Letter. As of the date hereof, all persons having record ownership of shares of the capital stock of IMPRA or having any right to purchase, acquire or obtain any of the capital stock of IMPRA are set forth on the Disclosure Letter. All of the issued and outstanding IMPRA Shares are validly issued, fully paid and nonassessable and not subject to any lien, charge or encumbrance. Neither IMPRA nor any of its subsidiaries is, and prior to the Effective Time will not become, a party to or subject to any contract or obligation wherein any person has a right or option to purchase or acquire any rights in any additional capital stock or other equity securities of IMPRA or any of its subsidiaries. 5.3 Authority Relative to this Agreement5.3 Authority Relative to this Agreement . IMPRA has the corporate power to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement by IMPRA and the consummation by IMPRA of the transactions contemplated hereby have been duly authorized by the Board of Directors and Shareholders of IMPRA, and no other corporate proceedings on the part of such Company are necessary to approve this Agreement or the transactions contemplated hereby. This Agreement constitutes the legal, valid and binding obligation of IMPRA, enforceable against it in accordance with the Agreement's terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and the rules of law governing specific performance, injunctive relief and other equitable remedies. 5.4 Consents and Approvals; No Violations5.4 Consents and Approvals; No Violations . Except for applicable requirements of state or foreign laws relating to takeovers, state securities or blue sky laws, filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended and filing and recordation of Articles of Merger and Plan of Merger under the ABCA, no filing with, and no permit, authorization, consent or approval of, any public body or authority is necessary for the consummation by IMPRA of the transactions contemplated by this Agreement. Neither the execution and delivery of this Agreement by IMPRA, nor the consummation by IMPRA of the transactions contemplated hereby, nor compliance by IMPRA with any of the provisions hereof, will (a) result in any breach of the Articles of Incorporation or Bylaws of IMPRA, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, agreement or other instrument or obligation to which IMPRA or any of its subsidiaries is a party or by which any of them or any of their properties or assets may be bound or (c) violate any order, writ, injunction, decree, statute, rule or regulation applicable to IMPRA or any of its properties or assets, except in the case of clauses (b) and (c) for violations, breaches or defaults that would not have a Material Adverse Effect. 5.5 Financial Statements5.5 Financial Statements . IMPRA has furnished to Buyer IMPRA's consolidated financial statements (consolidated balance sheets, consolidated statements of income, consolidated statements of shareholders' equity and consolidated statements of cash flows) at and for each of the 12-month periods ended June 30, 1992, June 30, 1993, June 30, 1994 and June 30, 1995 and its unaudited consolidated financial statements at and for the nine-month period ended March 31, 1996 (collectively, the "IMPRA Financial Statements"). The IMPRA Financial Statements at and for the periods ended June 30, 1994 and June 30, 1995 have been audited by IMPRA's independent accountants and the IMPRA Financial Statements at and for the periods ended June 30, 1992 and June 30, 1993 have been reviewed by IMPRA's independent accountants. Each of the balance sheets (including the related notes) included in the IMPRA Financial Statements fairly presents in all material respects the financial position of IMPRA as of the respective dates thereof, and the other related statements (including the related notes) included therein fairly present in all material respects the results of operations and cash flows of IMPRA for the respective periods or as of the respective dates set forth therein, all in conformity with generally accepted accounting principles consistently applied during the periods involved, except as otherwise noted therein and subject, in the case of the interim financial statements, to normal year-end adjustments and any other adjustments described therein and the absence of any notes thereto. 5.6 Absence of Certain Changes or Events5.6 Absence of Certain Changes or Events . Other than as permitted under Section 6.1, since March 31, 1996 IMPRA has not suffered a Material Adverse Effect and IMPRA has not (i) declared any dividend or made any payment or other distribution in respect of any shares of its capital stock, (ii) acquired or disposed of any shares of its capital stock or granted any options, warrants or other rights to acquire or convert any obligation into any shares of its capital stock, (iii) entered into any material transaction with any officer, director, employee or any known relative thereof or any entity in which such person has an interest, except the payment of rent, salaries, wages and expense reimbursement in the ordinary course of business, (iv) incurred any material obligation or liability (contingent or otherwise), except for (A) this Agreement, (B) normal trade and other obligations incurred in the ordinary course of business consistent with past practice and (C) obligations under contracts, agreements and leases, the performance of which has not and will not, individually or in the aggregate, have a Material Adverse Effect on IMPRA, (v) discharged or satisfied any material lien or other encumbrance or paid any material obligation or liability (fixed or contingent), except in the ordinary course of business or as contemplated by this Agreement, (vi) mortgaged, pledged or subjected to any lien or other encumbrance any of its material assets (whether tangible or intangible), (vii) sold, assigned, transferred, conveyed, leased or otherwise dispose of or agreed to sell, lease or otherwise dispose of any of its material assets except for sales of inventory or other assets for fair consideration in the ordinary course of business or as contemplated by this Agreement, (viii) canceled or compromised any material debt or claim, except in the ordinary course of business, (ix) waived or released any material rights, except for waivers or releases made in the ordinary course of business consistent with past practice, (x) made any single capital expenditure in excess of Fifty Thousand Dollars ($50,000), or entered into any commitment therefor, (xi) suffered any material casualty loss or damage, whether or not covered by insurance, or any adverse ruling, judgment or award, whether or not amounts were reserved on IMPRA's books, which would have a Material Adverse Effect on IMPRA, or (xii) lost any employees, distributors, dealers, manufacturers representatives, customers or suppliers, the loss of which, individually or in the aggregate, has had a Material Adverse Effect on IMPRA. 5.7 Litigation5.7 Litigation . As of the date of this Agreement, (a) there is no action, suit, judicial or administrative proceeding, arbitration or investigation pending or, to IMPRA's Knowledge, threatened against or involving IMPRA, or any of its properties or rights, before any court, arbitrator, or administrative or governmental body; (b) there is no judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality or arbitrator outstanding against IMPRA; and (c) IMPRA is not in violation of any term of any judgments, decrees, injunctions or orders outstanding against it. An action, suit, proceeding, arbitration or investigation shall be considered "threatened" for purposes of this Article V if IMPRA has received written notice that such event may be commenced. 5.8 Contracts5.8 Contracts . (a) IMPRA has provided Buyer with copies of all contracts, instruments, mortgages, notes, security agreements, leases, agreements or understandings to which IMPRA is a party and which are material to the business of IMPRA. Each of the contracts, instruments, mortgages, notes, security agreements, leases, agreements or understandings to which IMPRA is a party that relates to or affects the assets or operations of IMPRA or to which IMPRA or its assets or operations may be bound or subject is a valid and binding obligation of IMPRA and in full force and effect, except for where the failure to be in full force and effect would not individually or in the aggregate have a Material Adverse Effect. Except to the extent that the consummation of the transactions contemplated by this Agreement may require the consent of third parties, as disclosed in writing to Buyer pursuant to the Disclosure Letter, there are no existing defaults by IMPRA or any of its subsidiaries thereunder or, to the Knowledge of IMPRA, by any other party thereto, which defaults, individually or in the aggregate, would have a Material Adverse Effect; and no event of default has occurred, and no event, condition or occurrence exists, that (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a default by IMPRA or its subsidiaries thereunder which default would, individually or in the aggregate, have a Material Adverse Effect. (b) As of the date of this Agreement, IMPRA is not a party to any oral or written (i) consulting agreement not terminable on sixty (60) days or less notice involving the payment of more than One Hundred Thousand Dollars ($100,000) per annum, in the case of any such agreement with an individual, (ii) joint venture agreement, (iii) noncompetition or similar agreement that restricts IMPRA from engaging in a line of business, (iv) agreement with any executive officer or other employee of IMPRA the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving IMPRA of the nature contemplated by this Agreement and which provides for the payment of in excess of One Hundred Thousand Dollars ($100,000), (v) agreement with respect to any executive officer of IMPRA or any subsidiary providing any term of employment beyond one year or compensation guaranty in excess of One Hundred Thousand Dollars ($100,000) Thousand Dollars per annum, or (vi) agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement. 5.9 Employee Benefit Plans5.9 Employee Benefit Plans (a) The Disclosure Letter lists each "employee benefit plan" (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") that is maintained or otherwise contributed to by IMPRA for the benefit of its employees (including, without limitation, pension, profit sharing, stock bonus, medical reimbursement, life insurance, disability and severance pay plans) (collectively, "Company Plans") and all material employee benefit plans providing for deferred compensation, bonuses, stock options, employee insurance coverage or any similar compensation or welfare benefit plan (collectively, "Benefit Arrangements" and, together with Company Plans, collectively referred to as "Employee Benefit Programs"). (b) With respect to each Company Plan, IMPRA has made available to Buyer a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof (including all existing amendments thereto that shall become effective at a later date) and, to the extent applicable, (i) any related trust agreement, annuity contract or other funding instrument; and (ii) any summary plan description. (c) (i) Each Employee Benefit Program has been established and administered in substantial compliance with any applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended (the "Code"), and the terms of all documents relating to such programs; (ii) each Company Plan that is intended to be qualified within the meaning of section 401(a) of the Code has received a favorable determination letter as to its qualification; (iii) as of the date of this Agreement no "reportable event" (as such term is used in section 4043 of ERISA) other than an event of a type as to which the Pension Benefit Guaranty Corporation has waived the reporting requirements, "prohibited transaction" (as such term is used in section 4975 of the Code or section 406 of ERISA) or "accumulated funding deficiency" (as such term is used in section 412 or 4971 of the Code) has heretofore occurred with respect to any Company Plan that has reasonable probability of resulting in a termination that would have a Material Adverse Effect; and (iv) there are no pending or, to IMPRA's Knowledge, threatened, actions, claims or lawsuits which have been asserted or instituted against the Employee Benefit Programs, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any fiduciary of the Employee Benefit Programs with respect to the operation of such plans (other than routine benefit claims). (d) IMPRA does not maintain or contribute to any "multiemployer plan" (as such term is defined in section 3(37) of ERISA) and has not incurred any material liability that remains unsatisfied with respect to any such plans. 5.10 Medical Device Regulatory Authority Matters5.10 Medical Device Regulatory Authority Matters . Since June 30, 1992: (a) IMPRA is, and the products sold by IMPRA are, in compliance in all material respects with all current applicable statutes, rules, regulations, standards, guides or orders administered or issued by the Federal Food and Drug Regulatory Agencies or any other federal, state or local agency or governmental body having regulatory authority over such products (the "Regulatory Agencies"). (b) IMPRA has not received from the Regulatory Agencies, and has no Knowledge of any facts that would furnish any reasonable basis for, any notice of adverse findings, regulatory letters, warning letters, Section 305 notices or other similar communications from the Regulatory Agencies, and there have been no seizures conducted or threatened by the Regulatory Agencies, and no recalls, field notifications or alerts conducted, requested or threatened by the Regulatory Agencies relating to the products sold by IMPRA or any of its subsidiaries. (c) Each premarket approval ("PMA") and premarket notification ("510(k)") document and related documents and information for each of the products IMPRA manufactures, sells or distributes is in compliance in all material respects with the applicable federal statutes, rules, regulations, standards, guides or orders administered or promulgated by the Regulatory Agencies and all preclinical and clinical studies have been conducted with recognized good clinical and good laboratory practices in all material respects. The Disclosure Letter sets forth a complete and accurate list of all products of IMPRA indicating (i) which products are marketed under an approved Regulatory Agencies authority (e.g., PMA, 510(k) or IDE) and identifying such authority, and (ii) which products are not marketed under an approved Regulatory Agencies authority, and indicating why such products are being marketed without such authority. Such listing also contains a complete and accurate list of all PMA applications, PMA supplements, 510(k) submissions and IDE submissions of IMPRA or any of its subsidiaries currently pending with the Regulatory Agencies. (d) Neither IMPRA nor any of its subsidiaries is aware of any facts which are reasonably likely to cause (i) the denial, withdrawal, recall or suspension of any products sold or intended to be sold by IMPRA or any of its subsidiaries, or (ii) a change in the marketing classification or labeling of any such products, or (iii) a termination or suspension of marketing of any such products. (e) None of the products manufactured, marketed or sold by IMPRA or any of its subsidiaries has been recalled or subject to a field notification (whether voluntarily or otherwise), and neither IMPRA nor any of its subsidiaries has received notice (whether completed or pending) of any proceeding seeking recall, suspension or seizure of any products sold or proposed to be sold by IMPRA or any of its subsidiaries. 5.11 Intellectual Property5.11 Intellectual Property . (a) The Disclosure Letter contains an accurate and complete list of (i) all patents, applications for patents, registrations of trademarks (including service marks) and applications therefor, registrations of copyrights and applications therefor and registrations of mask works and applications therefor that are owned by IMPRA or any of its subsidiaries and that are part of the business of IMPRA as presently conducted; (ii) all other intellectual property rights that are owned by IMPRA or any of its subsidiaries and that are material to the conduct of business as presently conducted; (iii) all unexpired licenses relating to such of IMPRA intellectual property rights that have been granted to or by IMPRA or any of its subsidiaries and that are material to the conduct of the business of IMPRA as presently conducted, but excluding end-user licenses granted to IMPRA or any of its subsidiaries relating to standard "off the shelf" personal computer software that is generally available on commercially reasonable terms from vendors that are unaffiliated with IMPRA or it subsidiaries, including software made available from such vendors on a "shrink wrap license" basis ("Non-Scheduled Licenses"); and (iv) all other agreements relating to intellectual property rights that are material to the conduct of the business of IMPRA as presently conducted, but excluding the Non-Scheduled Licenses (collectively, (i)-(iv) are referred to herein as "IMPRA Intellectual Property Rights"). (b) To IMPRA's Knowledge, (i) IMPRA and its subsidiaries collectively own and have the right to use, and license others to use, all IMPRA Intellectual Property Rights that are material to the conduct of the business of IMPRA as presently conducted and (ii) such ownership and right to use, and license of others to use, are free and clear of, and without liability under, all liens and security interests of third parties. To IMPRA's Knowledge, such ownership and right to use, and license other to use, are free and clear of, and without liability under, all claims and rights of third parties that, if determined to be legally protectable, could have a Material Adverse Effect. (c) IMPRA has taken reasonable steps sufficient to safeguard and maintain the secrecy and confidentiality of, and its proprietary rights in, the unpatented know-how, technology, proprietary processes, formulae, and other information that is material to the conduct of the business of IMPRA as presently conducted. Without limitation on the generality of the foregoing, to IMPRA's Knowledge, IMPRA and its subsidiaries have obtained confidentiality and inventions assignment agreements, in one or more forms that have protections and conditions substantially similar in effect to those included in the forms provided to Buyer prior to the date hereof, from substantially all of IMPRA's past and present employees and independent contractors involved in the creation or development of IMPRA Intellectual Property Rights, including, without limitation from all employees and contractors who are inventors, authors, creators or developers of IMPRA Intellectual Property Rights that are material to the conduct of the business as presently conducted. (d) Except for payments made with respect to patents and patent applications, there are no royalties, honoraria, fees or other payments payable by IMPRA or its subsidiaries to any person by reason of the ownership, use, license, sale or disposition of any IMPRA Intellectual Property Right. (e) IMPRA has not received notice that IMPRA or its subsidiaries are infringing in the conduct of the business the right or claimed right of any other party with respect to any IMPRA Intellectual Property Rights, nor does IMPRA have any Knowledge of any alleged or claimed infringement by any product or process manufactured, used, sold or under development by or for IMPRA or its subsidiaries in the conduct of the business of IMPRA as presently conducted. (f) For purposes of this Section 5.11, "use" with respect to intellectual property rights, includes make, reproduce, display or perform (publicly or otherwise), prepare derivative works based on, sell, distribute, disclose and otherwise exploit such intellectual property rights and products incorporating or subject to such intellectual property rights. No reference in this Section 5.11 to IMPRA's right to use the IMPRA Intellectual Property Rights shall be construed as a representation of warranty as to the validity of an issued patent included in the IMPRA Intellectual Property Rights. (g) Except as expressly set forth in this Agreement, IMPRA makes, and Buyer receives no representation or warranty whether express, implied, statutory or otherwise, relating to the IMPRA Intellectual Property Rights, including, without limitation, warranties of merchantability or fitness for a particular purpose. Except for the representations and warranties as to IMPRA's Knowledge of infringement, IMPRA makes, and Buyer receives, no representation or warranty, whether express, implied, statutory or otherwise, relating to non-infringement of third party intellectual property rights. 5.12 Owned Property; IMPRA Facilities5.12 Owned Property; IMPRA Facilities . IMPRA owns no real property. (a) The Disclosure Letter sets forth, by address, owner and usage, a true and complete list of all material real property agreements (including any amendments thereto) (the "Real Property Leases") pursuant to which IMPRA leases, subleases or otherwise occupies any plants, offices, manufacturing facilities, warehouses, improvements, administration buildings and all other real property (the "IMPRA Facilities"). To IMPRA's Knowledge, there are no defaults or events which with the passage of time would constitute a default under the Real Property Leases, except in either instance for defaults which individually or in the aggregate would not have a Material Adverse Effect on IMPRA. (b) IMPRA owns, leases or has the right to use, all material fixtures, furniture, improvements, machinery or equipment necessary to conduct its business as currently conducted. 5.13 Compliance With Legislation Regulating Environmental Quality5.13 Compliance With Legislation Regulating Environmental Quality . (a) For the purposes of this Agreement, the term "Environmental Laws" shall mean all federal, foreign, state and local environmental protection, occupational, health and safety or similar laws, ordinances, restrictions, licenses, rules, regulations and permit conditions, including but not limited to the Federal Water Pollution Control Act, Resource Conservation & Recovery Act, Safe Drinking Water Act, Toxic Substances Control Act, Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act, Emergency Planning and Community Right to Know or other U.S. or foreign federal, state, province, or local laws of similar effect, each as amended as of the Effective Time, and the term "Hazardous Materials" shall mean any hazardous or toxic substances, wastes or materials, including without limitation petroleum or petroleum products, defined as such by any applicable Environmental Law or governmental agencies. (b) (i) Throughout the period of its operation of the IMPRA Facilities, IMPRA has not received any written notices, directives, violation reports, actions or claims from or by (A) any local, state, federal or foreign governmental agency concerning Environmental Laws or (B) any person alleging that, in connection with Hazardous Materials, conditions at any of the IMPRA Facilities or IMPRA's acts or omissions have resulted in or caused or threatened to result in or cause injury or death to any person or damage to any property, including without limitation, damage to natural resources, and to IMPRA's Knowledge, no such notices, directives, violation reports, actions, claims or allegations exist; (ii) to IMPRA's Knowledge, the IMPRA Facilities and the business operated by IMPRA and its subsidiaries are in compliance with all applicable state, federal, foreign and local Environmental Laws, except where any noncompliance with Environmental Laws would not have a Material Adverse Effect on IMPRA; (iii) no underground storage tanks have been installed by IMPRA and to IMPRA's Knowledge none either are or have been located at any of the IMPRA Facilities; and (iv) to IMPRA's Knowledge, no friable asbestos or PCBs have been located at any of the IMPRA Facilities. (c) There has been no spill, discharge, release, cleanup or contamination of or by any Hazardous Materials used, generated, treated, stored, disposed of or handled by IMPRA at any of the IMPRA Facilities; (ii) IMPRA has not treated, stored, disposed of, released or transported any Hazardous Material in a manner which would give rise to any liability under any Environmental Laws; and (iii) IMPRA holds all necessary permits, licenses, approvals and consents to conduct its business as currently being conducted and are not in violation of any condition of any such permit, license or consent. 5.14 Violations; Condemnation5.14 Violations/Condemnation . To IMPRA's Knowledge, it has not received, with respect to any IMPRA Facility, any written notice of default or any written notice of noncompliance with respect to applicable state, federal or local laws or regulations relating to zoning, building, fire, use restriction or safety or health codes which have not been remedied in all respects, and noncompliance with which could have a Material Adverse Effect. To IMPRA's Knowledge, it has received no written notice of any pending or threatened condemnation or other governmental taking of any of the IMPRA Facilities. 5.15 Taxes5.15 Taxes . (a) Except to the extent failure to comply with (i) through (xix) below would not have a Material Adverse Effect IMPRA: (i) all Returns (as defined below) in respect of Taxes (as defined below) required to be filed with respect to IMPRA and each of its subsidiaries (including any consolidated federal income tax return of IMPRA and any state Tax return that includes IMPRA or any of its subsidiaries on a consolidated, combined or unitary basis) have been timely filed, none of such Returns contains, or is required to contain, a disclosure statement under section 6661 or 6662 of the Code or any similar provision of state, local or foreign law, and no extension of time within which to file any such Return has been requested, which Return has not since been filed; (ii) all Taxes shown on such Returns have been timely paid and all payments of estimated Taxes required to be made with respect to IMPRA or any of its subsidiaries under section 6655 of the Code or any comparable provision of state, local or foreign law have been made; (iii) all such Returns are true, correct and complete in all material respects; (iv) no adjustment relating to any of such Returns has been proposed formally or informally by any Tax authority; (v) there are no outstanding subpoenas or requests for information with respect to any Returns of IMPRA or any of its subsidiaries or the Taxes reflected on such Returns; (vi) to IMPRA's Knowledge there are no pending or threatened actions or proceedings for the assessment or collection of Taxes against IMPRA or any of its subsidiaries or any corporation that was included in the filing of a Return with IMPRA on a consolidated, combined or unitary basis; (vii) no consent under section 341(f) of the Code has been filed with respect to IMPRA or any of its subsidiaries; (viii) there are no Tax liens on any assets of IMPRA or any of its subsidiaries except liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings; (ix) no acceleration of the vesting schedule for any property that is substantially nonvested within the meaning of the regulations under section 83 of the Code will occur in connection with the transactions contemplated by this Agreement; (x) neither IMPRA nor any of its subsidiaries is or has at any time been subject to any accumulated earnings tax or personal holding company tax; (xi) neither IMPRA nor any of its subsidiaries owes any amount pursuant to any written or unwritten Tax sharing agreement or arrangement or will have any liability after the date hereof in respect of any written or unwritten Tax sharing agreement or arrangement executed or agreed to prior to the date hereof; (xii) all Taxes required to be withheld, collected or deposited by IMPRA or any of its subsidiaries have been timely withheld, collected or deposited and, to the extent required, have been paid to the relevant Tax authority; (xiii) any adjustment of Taxes of IMPRA or any of its subsidiaries made by the IRS that is required to be reported to any state, local or foreign Tax authority has been so reported and any additional Tax due as a result thereof has been paid in full; (xiv) there are no outstanding waivers or agreements extending the statute of limitations for any period with respect to any Tax to which IMPRA or any of its subsidiaries may be subject; (xv) to IMPRA's Knowledge there are no requests for rulings or information currently outstanding that could affect the Taxes of IMPRA or any of its subsidiaries, or any similar matters pending with respect to any Tax authority; (xvi) no Tax authority has proposed reassessments of any property owned or leased by IMPRA or any of its subsidiaries that could materially increase the amount of any Tax to which IMPRA or any of its subsidiaries would be subject; (xvii) no power of attorney that is currently in force has been granted with respect to any matter relating to Taxes that could affect IMPRA or any of its subsidiaries; (xviii) with respect to each Return that has been examined by the relevant Tax authority, such examination is closed and final without any adjustment having been made to such Return (including adjustments not affecting the amount of Tax due with respect to such Return); and (xix) IMPRA and each of its subsidiaries have original receipts for all foreign Taxes paid or accrued for all unaudited tax periods from and after June 30, 1993. (b) For purposes of this Agreement, "Tax" or "Taxes" shall mean any and all taxes, charges, fees, levies, and other governmental assessments and impositions of any kind, payable to any federal, state, local or foreign Governmental Entity or taxing authority or agency, including, without limitation, (i) income, franchise, profits, gross receipts, minimum, alternative minimum, estimated, ad valorem, value added, sales, use, service, real or personal property, capital stock, license, payroll, withholding, disability, employment, social security, workers compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premiums, windfall profits, transfer and gains taxes, (ii) customs duties, imposts, charges, levies or other similar assessments of any kind, and (iii) interest, penalties and additions to tax imposed with respect thereto; and "Returns" shall mean any and all returns, reports, and information statements with respect to Taxes required to be filed with the Internal Revenue Service or any other Governmental Entity or Tax authority or agency, whether domestic or foreign, including, without limitation, consolidated, combined and unitary tax returns. For the purposes of this Section 5.15, references to IMPRA and each of its subsidiaries shall include former subsidiaries of IMPRA for the periods during which any such corporations were owned, directly or indirectly, by IMPRA. 5.16 Product Liability Matters5.16 Product Liability Matters . As of the date of this Agreement, neither IMPRA nor any of its subsidiaries has submitted to its product liability insurance carriers any claims with respect to potential product liability of IMPRA which claims could have a Material Adverse Effect on IMPRA nor knows of any such claims which should have been submitted to its product liability insurance carriers. Buyer has previously been afforded access to all files containing, or been furnished with copies of, all pleadings, claims complaints and relevant documents in connection with the foregoing. Neither IMPRA, nor any of its subsidiaries, nor to IMPRA's Knowledge, any employee or agent of IMPRA or any of its subsidiaries, has made any untrue statement of a material fact or omitted to state a material fact in connection with obtaining or renewing any insurance policy providing product liability coverage in respect of the products of IMPRA or any of its subsidiaries which could reasonably result in the loss of any material portion of such coverage and to IMPRA's Knowledge, IMPRA has not received any written notice from any insurance company stating that any insurance policy of IMPRA or any of its subsidiaries may not provide coverage up to the limits of such policy for any liability, loss or damage which may be incurred or suffered by IMPRA in connection with product liability claims other than the possible lack of coverage for punitive damages and claims for deductible amounts. 5.17 No Undisclosed Liabilities5.17 No Undisclosed Liabilities . Except to the extent specifically reflected or reserved against in the Consolidated Balance Sheet of IMPRA as of March 31, 1996, or as otherwise set forth on the Disclosure Letter, IMPRA does not have any material liabilities or obligations of any nature, whether absolute, accrued, contingent or otherwise (excluding any liability for Taxes) and obligations arising after March 31, 1996 in the ordinary course of business. 5.18 Agreement Does Not Contain Untrue Statements5.18 Agreement Does Not Contain Untrue Statements . This Agreement, the Schedules hereto and the Disclosure Letter do not contain any untrue statement of a material fact or omit to state a material fact required to be stated herein or therein or necessary to make the statements and facts contained herein or therein, in light of the circumstances in which they were made, not false or misleading. Copies of all documents delivered or made available to Buyer or Buyer Sub by IMPRA, its agents and representatives are complete and accurate copies of such documents. 5.19 Construction of Certain Provisions5.19 Construction of Certain Provisions . It is understood and agreed that any dollar amount specified in the foregoing representations and warranties or the inclusion of any specific items on the Schedules hereto is not intended to imply that higher or lower amounts, or that the items that have been so included, are or are not material and neither party shall use the fact of the setting of such amounts or the fact of the inclusion of any such items on the Schedules hereto in any dispute or controversy between the parties on whether any obligation, item or matter not described herein or included on a Schedule hereto is or is not material for purposes of this Agreement. 5.20 No Additional Representations5.20 No Additional Representations . NOTWITHSTANDING ANYTHING CONTAINED IN THIS ARTICLE V OR ANY OTHER PROVISION OF THIS AGREEMENT, IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO THAT IMPRA IS MAKING NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, BEYOND THOSE EXPRESSLY GIVEN IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OR REPRESENTATION AS TO CONDITION, MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE PROPERTIES OR ASSETS OF IMPRA, IT BEING UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS CONTAINED OR REFERRED TO IN THE SCHEDULES HERETO, ANY WRITTEN DISCLOSURE PROVIDED HEREUNDER OR PROVIDED UNDER THE CONFIDENTIALITY AGREEMENT (THE "CONFIDENTIALITY AGREEMENT") BETWEEN IMPRA AND BUYER ARE NOT, AND SHALL NOT BE DEEMED TO BE, REPRESENTATIONS OR WARRANTIES OF IMPRA. ARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGERARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGER 6.1 Conduct of Business Pending the Merger6.1 Conduct of Business Pending the Merger . IMPRA agrees that except as expressly contemplated by this Agreement (including Section 6.1(f) below), or as contemplated by the Disclosure Letter, during the period from the date of this Agreement and continuing until the Effective Time: (a) The business of IMPRA and its subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices; (b) IMPRA shall not (i) amend its Articles of Incorporation or Bylaws; or (ii) split, combine or reclassify any shares of its outstanding capital stock, declare, set aside or pay any dividend or other distribution payable in cash, stock or property in respect of its capital stock, or directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or other securities; (c) IMPRA shall not (i) authorize for issuance, issue, sell, pledge, dispose of, encumber, deliver or agree or commit to issue, sell, pledge, or deliver any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), (ii) acquire, dispose of, transfer, lease, license, mortgage, pledge or encumber any fixed or other substantial assets other than in the ordinary course of business and consistent with past practices; (iii) incur, assume or prepay any material indebtedness, liability or obligation or any other material liabilities or issue any debt securities other than in the ordinary course of business and consistent with past practices; (iv) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person in a material amount other than in the ordinary course of business and consistent with past practices; (v) make any material loans, advances or capital contributions to, or investments in, any other person, other than in the ordinary course of business and consistent with past practices; (vi) fail to maintain adequate insurance consistent with past practices for its business; (vii) take any action described in items (i) through (x) of Section 5.6 (not described in the Disclosure Letter) without the consent of the Buyer or (viii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) IMPRA shall use its best efforts to preserve intact its business organization, to keep available the services of its present officers and key employees, and to preserve the goodwill of those having business relationships with it; provided, however, that no breach of this covenant shall be deemed to have occurred as a result of any matter arising out of the transactions contemplated by this Agreement or any acquisition proposals made to IMPRA or the public announcement thereof; (e) IMPRA shall use all reasonable efforts to prevent any representation or warranty of IMPRA herein from becoming materially untrue or incorrect in any material respect; and (f) Notwithstanding anything to the contrary in (a)-(e) above, IMPRA shall be permitted to take the following actions: (i) pay any judgment or settlement of pending legal claims (including penalties, fees, or taxes related thereto); (ii) repay any guarantors of IMPRA's obligations or pledgors of collateral to secure IMPRA's obligations (including collateral pledged to secure letters of credit relating to such obligations) if and to the extent such guarantors pay any amount under the guaranty, or such pledgors have such collateral foreclosed upon, in connection with any of IMPRA's obligations, on behalf of IMPRA, and (iii) pay compensation as permitted under Section 6.2, below. 6.2 Compensation Plans6.2 Compensation Plans . During the period from the date of this Agreement and continuing until the Effective Time, IMPRA agrees that, except as contemplated by the Disclosure Letter it will not, without the prior written consent of Buyer (except as required by applicable law or pursuant to existing contractual arrangements or other plans or commitments as otherwise disclosed in writing pursuant hereto) (a) enter into, adopt or amend any Employee Benefit Programs as to materially increase the benefits thereunder, (b) grant or become obligated to grant any material increase in the compensation or fringe benefits of directors, officers or employees (including any such increase pursuant to any Employee Benefit Program) or any material increase in the compensation payable or to become payable to any officer, except for increases in compensation in the ordinary course of business consistent with past practice, or enter into any contract, commitment or arrangement to do any of the foregoing, except for normal increases and non-stock benefit changes in the ordinary course of business consistent with past practice, (c) institute any new Employee Benefit Program, (d) make any material change in any Employee Benefit Program arrangement or enter into any employment or similar agreement or arrangement with any employee, or (e) enter into or renew any contract, agreement, commitment or arrangement providing for the payment to any director, officer or employee of compensation or benefits contingent, or the terms of which are materially altered in favor of such individual, upon the occurrence of any of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Section 6.2, IMPRA shall be permitted to (i) pay fiscal year-end cash bonuses to its employees in amounts consistent with past practice and (ii) enter into staying bonus/severance agreements with not more than fifteen (15) key employees (the "Key Executives") as described in Exhibit "C"; provided, that the amount potentially payable under such agreements does not exceed One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) in the aggregate. 6.3 Legal Conditions to Merger6.3 Legal Conditions to Merger . Each of IMPRA and Buyer shall use all reasonable efforts (a) to take, or cause to be taken, all actions reasonably necessary to comply promptly with all legal requirements which may be imposed on such party or its subsidiaries with respect to the Merger and to consummate the transactions contemplated by this Agreement, subject to the appropriate vote or consent of shareholders and (b) to obtain (and to cooperate with the other party to obtain) any consent, authorization, order or approval of, or any exemption by, any governmental entity and or any other public or private third party which is required to be obtained or made by such party or any of its subsidiaries in connection with the Merger and the transactions contemplated by this Agreement; provided, however, that a party shall not be obligated to take any action pursuant to the foregoing if the taking of such action or such compliance or the obtaining of such consent, authorization, order, approval or exemption would, in such party's reasonable opinion, (i) be materially burdensome to such party or impact in such a materially adverse manner the economic or business benefits of the transactions contemplated by this Agreement as to render inadvisable the consummation of the Merger or (ii) result in the imposition of a condition or restriction on such party or on the Surviving Corporation of the type referred to in Section 8.1. Each party will cooperate with and promptly furnish information to the other in connection with any such burden suffered by, or requirement imposed upon, either of them in connection with the foregoing. ARTICLE VII ADDITIONAL AGREEMENTSARTICLE VII ADDITIONAL AGREEMENTS 7.1 Access and Information7.1 Access and Information . IMPRA shall afford to Buyer and to Buyer's financial advisors, legal counsel, accountants, consultants and other representatives reasonable access during normal business hours throughout the period from the date hereof to the Effective Time to all of its books, records, properties, facilities, personnel commitments and records (including but not limited to tax returns) and, during such period, shall furnish promptly to Buyer all information concerning its business, properties and personnel as Buyer may reasonably request. 7.2 Director and Officer Indemnification7.2 Director and Officer Indemnification . Buyer agrees that for acts occurring prior to the Effective Time, all rights to indemnification and advancement of expenses existing in favor of the directors and officers of IMPRA (the "Indemnified Directors and Officers") under the provisions existing on the date hereof of the Articles of Incorporation, By-Laws and indemnification agreements of IMPRA shall survive the Effective Time, and Buyer agrees to indemnify and advance expenses to the Indemnified Directors and Officers to the full extent required or permitted under the provisions existing on the date hereof of IMPRA's Certificate of Incorporation, By-Laws and indemnification agreements. 7.3 Public Announcements7.3 Public Announcements . Each of Buyer and IMPRA agrees that it will obtain the approval of the other prior to issuing any press release with respect to the transactions contemplated by this Agreement or termination thereof and will use its best efforts to consult with the others before otherwise making any public statement or responding to any press inquiry with respect to this Agreement or the transactions contemplated hereby or termination thereof, except as may be required by law or any governmental agency. 7.4 Expenses7.4 Expenses . If the Merger is not consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses. If the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the costs and expenses of IMPRA, shall be paid by the Buyer. 7.5 Additional Agreements7.5 Additional Agreements . (a) Subject to the terms and conditions herein provided, including without limitation those set forth in the proviso to Section 6.3 hereof, each of the parties hereto agrees to use all reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including using all reasonable efforts to obtain all necessary waivers, consents and approvals, and to effect all necessary registrations and filings. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and/or directors of the Companies shall take all such necessary action. (b) Subject to the terms and conditions herein provided, including without limitation those set forth in the proviso to Section 6.3 hereof, Buyer and IMPRA will cooperate with each other and use all reasonable efforts to prepare all necessary documentation to effect promptly all necessary filings and to obtain all necessary permits, consents, approvals, orders and authorizations of or any exemptions by, all third parties and governmental bodies necessary to consummate the transactions contemplated by this Agreement. (c) Each party will keep the other party apprised of the status of any inquiries made of such party by any governmental agency or authority or members of their respective staffs with respect to this Agreement or the transactions contemplated herein. 7.6 Confidentiality7.6 Confidentiality . All confidential information disclosed by any party to this Agreement to any other party to this Agreement in connection with the transactions contemplated hereby shall be kept confidential by such other party and shall not be used by such other party otherwise than as herein contemplated, except to the extent that (a) it is or becomes generally available to the public other than as a result of a wrongful disclosure by a party receiving such confidential information hereunder, (b) it was readily available to the party receiving such information on a non-confidential basis prior to its disclosure hereunder, (c) it was already lawfully in the receiving party's possession prior to its disclosure hereunder, (d) it becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party hereunder without violation of such source's confidentiality agreement with the disclosing party or its representatives or of legal, fiduciary or ethical constraints on disclosure of such information, (e) it may be required by law, or (f) such duty as to confidentiality is waived by the other party. Such obligation as to confidentiality and non-use shall survive the termination of this Agreement for any reason. This Section 7.6 shall survive termination hereof or consummation of the transactions hereunder and shall replace any prior confidentiality agreements, including the Confidentiality Agreement, entered into by the parties hereto except to the extent set forth in the Consulting Agreements, which Consulting Agreements shall control. 7.7 Real Estate Transaction7.7 Real Estate Transaction . Subject to the closing of the Merger and the provisions of the Real Estate Documents (as defined below), Buyer shall in a separate transaction acquire that certain real property described in the Real Estate Documents attached hereto as Exhibits "D" and "E" for a purchase price equal to an aggregate of Three Million Dollars ($3,000,000). The "Real Estate Documents" shall mean the Agreement of Purchase and Sale and Escrow Instructions between Buyer and BG & J Investments, dated concurrently herewith and attached hereto as Exhibit "D," and the Agreement of Purchase and Sale and Escrow Instructions between Buyer and Baker-Green Investments dated concurrently herewith and attached hereto as Exhibit "E." 7.8 Bank Guarantees7.8 Bank Guarantees . Buyer shall cooperate with IMPRA and use Buyer's best efforts to obtain prior to the Effective Time the release of all guarantees ("Individual Guarantees") provided by individuals on behalf of IMPRA relating to IMPRA's bank financings or other indebtedness ("Releases"), whether through Buyer's substitution of guarantors, repayment of indebtedness, or provision of security otherwise satisfactory to the holders of such indebtedness in lieu of the Individual Guarantees. 7.9 Noncompete Agreements7.9 Noncompete Agreements . Prior to the Effective Time, Harold D. Green and Elizabeth A. Green shall enter into Noncompete Agreements in the form attached hereto as Exhibit "F-1" and "F-2," respectively. 7.10 IPE7.10 IPE . (a) Buyer agrees that after the Effective Time, the Surviving Corporation shall continue to supply to IPE PTFE resin purchased by the Surviving Corporation from ICI Americas, Inc. and its affiliates ("ICI") on the same terms and conditions as IMPRA has heretofore supplied IPE with such resin; provided, that the Surviving Corporation's obligation shall be subject to the right of Buyer to terminate the supply arrangement in the future, if, based upon the facts and circumstances then existing, the Surviving Corporation's continuing to supply resin for IPE would adversely and materially jeopardize the Surviving Corporation's relationship with ICI. (b) Prior to the Effective Time, IMPRA agrees to take or cause to be taken all necessary action on its part to terminate the participation of the employees of IPE in the IMPRA, Inc. Defined Benefit Pension Plan and Trust. 7.11 Consulting Agreements7.11 Consulting Agreements . Prior to the Effective Time, Buyer shall take or cause to be taken all necessary action on its part to enter into Consulting Agreements with Harold D. Green and Elizabeth A. Green on the terms and conditions attached hereto as Exhibit "A-1" and Exhibit "A-2," respectively. 7.12 June 30, 1996 Financials7.13 June 30, 1996 Financials . Promptly upon their completion, but in any event no later than August 31, 1996, IMPRA shall provide to Buyer the consolidated balance sheet and related consolidated statements of income, shareholders' equity and cash flows of IMPRA for the fiscal year ended June 30, 1996, as audited by IMPRA's public accountants and prepared in accordance with generally accepted accounting principles applied on a basis consistent with past practice. ARTICLE VIII CONDITIONS TO CONSUMMATION OF THE MERGERARTICLE VIII CONDITIONS TO CONSUMMATION OF THE MERGER 8.1 Conditions to Both IMPRA's and Buyer's Obligation to Effect the Merger.8.1 Conditions to Both IMPRA'S and Buyer's Obligation to Effect the Merger The respective obligations of IMPRA and Buyer to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, which may be waived by mutual agreement: No preliminary or permanent injunction or other order by or before any federal, state or foreign court of competent jurisdiction which prohibits the consummation of the Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, or judgment shall have been enacted, entered, issued, promulgated or enforced by or before any court or governmental authority which prohibits or restricts the consummation of the Merger. Other than the filing of Articles of Merger and Plan of Merger with the Arizona Corporation Commission, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any governmental entity (all of the foregoing, "Consents") which are necessary for the consummation of the Merger, other than Consents the failure to obtain which would have no Material Adverse Effect on the consummation of the Merger or on the Surviving Corporation, Buyer and their subsidiaries shall have been filed, occurred or been obtained (all such permits, approvals, filings and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect. 8.2 Conditions to Obligation of Each Company to Effect the Merger8.2 Conditions to Obligation of Each Company to Effect the Merger. (a) The obligation of IMPRA to effect the Merger shall be further subject to the following conditions: (i) Buyer shall satisfy all of the obligations under this Agreement required to be performed by Buyer at or prior to the Effective Time in all material respects, (ii) the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects when made and at and as of the Effective Time as if made at and as of such time, except as contemplated by this Agreement, (iii) Buyer shall have performed its obligations under the Real Estate Documents and Buyer shall concurrently with the consummation of the Merger acquire that certain real property described in the Real Estate Documents; provided, that the conditions to Buyer's obligations shall have been satisfied in all material respects, and (iv) the Releases shall have been obtained or Buyer shall have agreed to indemnify the individuals providing the Individual Guarantees to such individuals' satisfaction. These conditions may be waived by IMPRA. (b) The obligation of Buyer to effect the Merger shall be further subject to the following conditions: (i) IMPRA shall satisfy all of the obligations under this Agreement required to be performed by IMPRA at or prior to the Effective Time in all material respects, and (ii) the representations and warranties of IMPRA contained in this Agreement shall be true and correct in all material respects when made and at and as of the Effective Time as if made at and as of such time, except as contemplated by this Agreement. Any change in IMPRA's relationship with ICI and Vascutek, including but not limited to any change due to the transactions contemplated by this Agreement, shall not (A) permit Buyer to terminate or fail to consummate this Agreement, or (B) constitute a breach of any representation, warranty or covenant herein; provided, that IMPRA shall use its reasonable best efforts to deal with ICI and Vascutek in a manner consistent with past practice. These conditions may be waived by Buyer. ARTICLE IX TERMINATION, AMENDMENT AND WAIVERARTICLE IX TERMINATION, AMENDMENT AND WAIVER 9.1 Termination9.1 Termination. This Agreement may be terminated and the Merger contemplated hereby abandoned at any time prior to the Effective Time: (a) By mutual written consent of Buyer and IMPRA. (b) By Buyer or IMPRA if the Merger shall not have been consummated on or before September 30, 1996, unless the failure of the Effective Time to occur by such date shall be due to (i) the failure of the party seeking to terminate this Agreement to perform or observe the covenants and agreements of such party set forth herein, or (ii) the fact that the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 has not expired by such date. (c) By either Buyer or IMPRA if there shall have been any material breach of a material obligation of the other and, if such breach is curable, such default shall have not been remedied within thirty (30) days after receipt by the defaulting party of notice in writing from the other party specifying such breach and requesting that it be remedied; provided, that such thirty-day period shall be extended for so long as the other party shall be making diligent attempts to cure such default. (d) By IMPRA or Buyer, if any court of competent jurisdiction in the United States or other United States governmental body shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting any Merger and such order, decree, ruling or any other action shall have become final and non-appealable. 9.2 Effect of Termination9.2 Effect of Termination. In the event of termination of this Agreement as provided above, this Agreement shall forthwith become of no further effect and, except for a termination resulting from a breach by a party of this Agreement, there shall be no liability or obligation on the part of any party or its respective officers or directors (except as set forth in this Section 9.2 and except for Sections 7.3, 7.4, 7.6 and 11.6 hereof, all of which shall survive the termination). Nothing contained in this Section 9.2 shall relieve any party from liability for willful breach of this Agreement that results in termination of this Agreement. Upon request therefor, each party will redeliver all documents, work papers and other material of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing same. 9.3 Amendment9.3 Amendment. Any amendment of this Agreement which alters the Purchase Price or which in any way materially adversely affects the rights of the Shareholders, shall not be made without the further approval of the Shareholders. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. 9.4 Waiver9.4 Waiver. At any time prior to the Effective Time, the parties hereto may (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. Such waiver shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. ARTICLE X SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATIONARTICLE X SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION 10.1 Survival; Indemnification10.1 Survival, Indemnification. (a) No representations, warranties or agreements contained herein shall survive beyond the Effective Time except that (i) the agreements contained in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.7, 7.2, 7.3, 7.4, 7.5, 7.6, 9.2, 9.3, 9.4, 11.1, 11.2, 11.5, 11.6, 11.7, 11.8, 11.9 and 11.10 and Article X hereof shall survive beyond the Effective Time without limitation and (ii) the representations and warranties of Buyer and IMPRA in this Agreement shall survive beyond the Effective Time (the end of such period, the "Termination Date") for six (6) months following the Effective Time solely for the purpose of the Indemnification Escrow as described below. (b) Through the Indemnification Escrow described below, the Surviving Corporation, Buyer, Buyer Sub and each of their officers, directors, employees, agents, representatives and affiliates (collectively, the "Indemnitees" and individually each an "Indemnitee") (subject to the terms and conditions below) will be entitled to be indemnified and held harmless by the Shareholders against and in respect of any claims, damages, losses, costs, expenses, liabilities (absolute, accrued, contingent or otherwise), and reasonable legal fees and expenses (collectively, "Losses") incurred or suffered by any Indemnitee, directly or indirectly, caused by or arising out of or related to any untruth, inaccuracy, error in, or breach of, any representation or warranty of IMPRA contained in this Agreement, when made or deemed to be made. The rights of Indemnitees to indemnification under this Section 10.1(b) shall be limited to, and satisfied solely out of and to the extent of, the Indemnification Escrow as it may be reduced or increased pursuant to Sections 3.2(d), 3.4(e) and 3.5, this Section 10.1 and the Escrow Agreement, and any Loss shall be limited to those amounts for which the Indemnitee does not receive coverage under applicable insurance policies, if any. All indemnification requests of Indemnitees hereunder shall be made by or through Buyer. (c) By voting to approve this Agreement or by surrendering his or her Certificate(s) evidencing IMPRA Shares at Closing, each Shareholder, other than Shareholders who have perfected dissenter rights under the ABCA, acknowledges and agrees that (i) the consideration to which such Shareholder is entitled hereunder is subject to adjustment as contemplated in Articles III and X, (ii) the Indemnification Escrow Payment and the Escrow Adjustment shall be placed in the Indemnification Escrow provided for in an Escrow Agreement to be entered into, as of the Effective Time, in the form of Exhibit "G" attached hereto and (iii) the Escrow Agent shall be, and is hereby, authorized from time to time to transfer all or any portion of the amounts so deposited in satisfaction of the indemnity obligation and as otherwise provided pursuant to Articles III and X and as contemplated in the Escrow Agreement. The Indemnitees agree to look solely to the Indemnification Escrow for recourse in the event of a breach of any representation or warranty of IMPRA contained in this Agreement and will not look directly to any Shareholder or Shareholders for any indemnification hereunder. (d) If any Indemnitee shall have any liquidated claim of indemnification pursuant to Section 10.1(b) above, it shall promptly request that Buyer give written notice thereof to the Representative and the Escrow Agent, including a brief description of the facts upon which such claim is based and the amount thereof. Any Indemnitee may also request that Buyer provide written notice to the Representative and the Escrow Agent of any unliquidated claim of indemnification pursuant to Section 10.1(b), including a brief description of the facts upon which such claim is based and a demand for a reserve amount to be created in respect of such claim. Any claim made by any Indemnitee for Losses that are unliquidated shall not be paid, but funds equal to such claim shall be held in the Indemnification Escrow until such Losses are fully liquidated. Notwithstanding the foregoing, no amount will be delivered to an Indemnitee pursuant to a written claim notice (with respect to either a liquidated or unliquidated claim) pursuant to Section 10. 1(b) above unless, and then only to the extent that, the aggregate amount of Losses sustained by Indemnitees as a group and as to which written claim notices have been given exceeds Two Hundred Fifty Thousand Dollars ($250,000) (taking into account any reduction of prior noticed claims resulting from the dispute resolution procedures of Section 10.2 below). (e) If the Representative shall notify the Escrow Agent in writing (within fifteen (15) days of delivery to the Escrow Agent by Buyer of a written notice of claim for indemnification) of his objection to a claim of indemnification or a demand for the creation of a reserve against the Indemnification Escrow for any unliquidated claim (or the amount thereof), the Escrow Agent shall hold the disputed amount of funds in the Indemnification Escrow until the rights of the IMPRA Shareholders and the Indemnitees with respect thereto have been agreed upon between the Representative and the claiming Indemnitee. In the event such an agreement is reached, the claiming Indemnitee shall request Buyer to provide to the Escrow Agent a written notice signed by the Representative in the form specified in the Escrow Agreement. If no such agreement has been reached, either the Indemnitee or the Representative may, not earlier than thirty (30) days after the date of the initial claim notice, submit the dispute to confidential, binding arbitration in Phoenix, Arizona before a panel of three arbitrators, one each to be selected by Buyer and the Representative, and the third to be selected by the other two arbitrators, pursuant to the procedures and rules for commercial arbitration of the American Arbitration Association. The Escrow Agent may rely on the order or other determination of such arbitrators. If such arbitrators shall determine that any part of the Indemnification Escrow is to be delivered to an Indemnitee or is to be set aside in a reserve for any unliquidated claim, the Escrow Agent shall promptly following receipt of a copy of such determination establish such reserve or deliver to such Indemnitee the lesser of (i) the amount of the claim or claims as awarded to the Indemnitee to be satisfied, subject to the limitation set forth in paragraph (d) above, or (ii) the entire amount remaining in the Indemnification Escrow. Any disputed amounts not awarded to the Indemnitee shall promptly be transferred to the unreserved portion of the Indemnification Escrow. Buyer and the Representative shall bear their respective costs and expenses of any such arbitration; provided that, the Representative shall be entitled to charge the Indemnification Escrow for his reasonable costs and expenses as set forth in the Escrow Agreement. (f) On and after the Termination Date, the Escrow Agent shall distribute to the Shareholders on a pro rata basis all remaining unreserved amounts in the Indemnification Escrow, less an amount equal to the dollar amount of all claims pursuant to Section 10.1(c) that are still in process in (i) that are then-payable liquidated claims, (ii) for which a reserve established pursuant to paragraph (d) then exists, or (iii) that are still in the process of resolution pursuant to Section 10.1 hereto. No new claims may be brought under this Section 10.1 after the Termination Date. (g) After the Termination Date, (i) as each matter referred to in Section 10.1(f) is resolved or otherwise concluded and (ii) as each undisputed unliquidated claim which remains unliquidated as of the Termination Date is liquidated, the Escrow Agent shall distribute to the Shareholders their respective pro rata portion of the Escrow Fund then determined by the Escrow Agent to be free of any rights of any Indemnitee, and, when all such matters are resolved and such claims are liquidated, the obligations under Section 10.1(b) hereof shall terminate. The Indemnification Escrow shall be terminated when all of the Escrow Fund in the Indemnification Escrow shall have been disbursed in accordance with the provisions hereof and the Escrow Agreement by the Escrow Agent. (h) As of the Effective Time, the Shareholders shall, by virtue of the approval of this Agreement by the requisite vote of the Shareholders, be deemed, for themselves and their heirs and representatives and successors, to have constituted and appointed, effective from the Effective Time, Harold D. Green, as their agent and attorney-in-fact (the "Representative") to take all action required or permitted under the Indemnification Escrow as provided in the Escrow Agreement or herein with respect to the interests and rights of the Shareholders. In the event of the death, physical or mental incapacity or resignation of the Representative a replacement Representative shall be appointed as provided in the Escrow Agreement. In taking any action whatsoever hereunder, the Representative shall be protected in relying upon any notice, paper or other document reasonably believed by him to be genuine, or upon any evidence reasonably deemed by him to be sufficient. The Representative may consult with counsel in connection with his duties hereunder and shall be fully protected in any act taken, suffered or permitted by him in good faith or in accordance with the advice of counsel. The Representative shall not be liable to the Shareholders for the performance of any act or the failure to act so long as he acted or failed to act in good faith within what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the best interests of the Shareholders. 10.2 Procedure10.2 Procedure. In the event that at any time or from time to time after the Effective Time a person indemnified under Section 10.1 or 10.3 (an "Indemnified Party") shall sustain a loss of any nature whatsoever against which such Indemnified Party is indemnified under this Agreement, such Indemnified Party shall notify the party hereto obligated to provide such indemnification (the "Indemnitor") of any such loss so sustained. If Indemnitor is Buyer, Indemnitor shall within thirty (30) days after transmittal of such notice pay to such Indemnified Party the amount of such loss so sustained, subject to the right to contest any claim which has not yet resulted in a loss, as herein provided. If Indemnitor is the Escrow Agent, payment shall be governed by the Escrow Agreement. The Indemnified Party shall promptly notify the Indemnitor of the existence of any claim, demand, or other matter involving liabilities to third parties to which the Indemnitor's indemnification obligations would apply and shall give the Indemnitor (acting through the Representative if Indemnitor is the Escrow Agent) a reasonable opportunity to defend the same or prosecute such action to conclusion or settlement satisfactory to the Indemnified Party at Indemnitor's own expense and with counsel of Indemnitor's selection (who shall be approved by Indemnified Party, which approval shall not be unreasonably withheld); provided that the Indemnified Party shall at all times also have the right to fully participate in the defense at its own expense. If the Indemnitor shall, within a reasonable time after said notice, fail to defend, the Indemnified Party shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle (exercising reasonable business judgment) the claim or other matter on behalf, for the account, and at the risk and expense of Indemnitor. Except as provided in the preceding sentence, the Indemnified Party shall not compromise or settle the claim or other matter without the prior written consent of the Indemnitor. If the claim is one that cannot by its nature be defended solely by the Indemnitor, the Indemnified Party shall make available all information and assistance that the Indemnitor may reasonably request; provided that any associated expenses shall be paid by the Indemnitor. If the Losses relate to a Loss or demand asserted by a third party, the Indemnified Party and Indemnitor shall jointly control the defense and settlement thereof and any settlement shall require the prior written consent of both parties, which consent shall not be unreasonably withheld. 10.3 Buyer's Indemnification10.3 Buyer's Indemnification. Buyer agrees to indemnify and hold Shareholders harmless from and against any and all Losses which may accrue or be sustained by Shareholders arising out of or as a result of (a) the conduct of the business or ownership of IMPRA or the Surviving Corporation after the Effective Time, or (b) any of the warranties, representations or covenants of Buyer contained in this Agreement being incorrect, untrue or breached. 10.4 Contest; Challenge10.4 Contest, Challenge. If Indemnitor contests or challenges any claim or action asserted against Indemnified Party referred to in this Article, it shall do so at its own cost and expense (or in the case of Escrow Agent, at the cost of the Indemnification Escrow), holding Indemnified Party harmless from all costs, fees, expenses, debts, liabilities and charges in connection with such contest; shall diligently defend against any such claim; and shall hold Indemnified Party's business and assets free and harmless from any attachment, execution, judgment, lien or other legal process. ARTICLE XI GENERAL PROVISIONSARTICLE XI GENERAL PROVISIONS 11.1 Brokers.11.1 Brokers IMPRA represents and warrants to Buyer and Buyer Sub that, except for IMPRA's financial advisor, Alex. Brown & Sons Incorporated, no broker, finder or financial advisor is entitled to any brokerage, finder's or other fee or commission in connection with the Merger or the transactions contemplated by this Agreement based upon arrangements made by or on behalf of IMPRA. Buyer represents and warrants to IMPRA that, except for its financial advisor, CS First Boston Corporation, no broker, finder or financial advisor is entitled to any brokerage, finder's or other fee or commission in connection with the Merger or the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer. 11.2 Notices11.2 Notices. All notices, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by telecopy or mailed by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified by like notice): (a) If to IMPRA, to: IMPRA, Inc. 1625 West 3rd Street P.O. Box 1740 Tempe, Arizona 85280 Attention: Harold D. Green, President Telecopy Number: (602) 966-7062 with a copy to: Polese, Pietzsch, Williams & Nolan, P.A. 2702 North Third Street Suite 3000 Phoenix, Arizona 85004-4607 Attention: James F. Polese, Esq. Telecopy Number: (602) 279-5107 and a copy to: Morrison & Foerster 19900 MacArthur Boulevard, Suite 1200 Irvine, California 92715 Attention: Robert M. Mattson, Jr., Esq. Telecopy Number: (714) 251-0900 (b) If to Buyer or Buyer Sub, to: C.R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974 Attention: General Counsel Telecopy Number: (908) 277-8025 with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 Attention: Philip T. Ruegger III, Esq. Telecopy Number: (212) 455-2502 and Squire, Sanders & Dempsey Two Renaissance Square 40 North Central Avenue, Suite 2700 Phoenix, Arizona 85004 Attention: Norman C. Storey, Esq. Telecopy Number: (602) 253-8129 (c) If to the Representative to: IMPRA, Inc. 1625 West 3rd Street P.O. Box 1740 Tempe, Arizona 85280 Attention: Harold D. Green, President Telecopy Number: (602) 966-7062 11.3 Descriptive Headings11.3 Descriptive Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 11.4 Entire Agreement; Assignment11.4 Entire Agreement, Assignment. This Agreement (including the Schedules, Exhibits, and other documents and instruments referred to herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties or any of them, with respect to the subject matter hereof, and shall not be assigned by operation of law or otherwise. 11.5 Governing Law11.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to the provisions thereof relating to conflicts of law. 11.6 Parties in Interest11.6 Parties in Interest. Except for Sections 7.2, 7.7, 7.8, 7.9, 7.10, 7.11 and Article X hereof, nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any rights, benefit or remedies of any nature whatsoever or by reason of this Agreement. 11.7 Counterparts11.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. 11.8 Validity11.8 Validity. The invalidity or unenforceability of any provision of this Agreement shall not effect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. 11.9 Investigation11.9 Investigation. The respective representations and warranties of Buyer or IMPRA contained herein or in the certificates or other documents delivered prior to the Effective Time shall not be deemed waived or otherwise affected by any investigation made by the other. 11.10 Consents11.10 Consents. For purposes of any provision of this Agreement requiring, permitting or providing for the consent of any party, the written consent of the Chief Executive Officer of such party shall be sufficient to constitute such consent. IN WITNESS WHEREOF, each of Buyer, Buyer Sub and IMPRA has caused this Agreement to be executed on its behalf by its officers thereunto duly authorized, all as of the date first above written. C.R. BARD, INC., a New Jersey corporation By: Name: Title: CRB ACQUISITION COMPANY, an Arizona corporation By: Name: Title: IMPRA, INC., an Arizona corporation By: Name: Title: The undersigned hereby consents to his appointment as Representative as herein provided and agrees to the provisions hereof relating thereto. . . . . . . . . . . . . . . . . . . . . Harold D. Green, solely in his capacity as Representative AGREEMENT AND PLAN OF MERGER by and among C.R. Bard, Inc., a New Jersey corporation CRB Acquisition Company, an Arizona corporation and a wholly-owned subsidiary of Buyer and IMPRA, Inc., an Arizona corporation Dated: August 2, 1996 TABLE OF CONTENTS Page ARTICLE I THE MERGER 1 1.1 The Merger 1 1.2 Effective Time of the Merger ARTICLE II BUYER AND THE SURVIVING CORPORATION 1 2.1 Articles of Incorporation of the Surviving Corporation 1 2.2 Bylaws of the Surviving Corporation 2 2.3 Directors and Officers of the Surviving Corporation 2 ARTICLE III EXCHANGE OF SHARES 2 3.1 Disposition of Buyer Sub Shares, IMPRA Treasury Shares 2 3.2 Exchange of IMPRA Shares 2 3.3 No Further Rights in IMPRA Shares 3 3.4 The Purchase Price 4 3.5 Adjustment of Purchase Price 6 3.6 Closing 6 3.7 Supplementary Action 8 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER 8 4.1 Organization 8 4.2 Authority Relative to this Agreement 9 4.3 Consents and Approvals; No Violations 9 ARTICLE V REPRESENTATIONS AND WARRANTIES OF IMPRA 10 5.1 Organization Permits 10 5.2 Capitalization; Shareholders 10 5.3 Authority Relative to this Agreement 10 5.4 Consents and Approvals; No Violations 11 5.5 Financial Statements 11 5.6 Absence of Certain Changes or Events 11 5.7 Litigation 12 5.8 Contracts 12 5.9 Employee Benefit Plans 13 5.10 Medical Device Regulatory Authority Matters 14 5.11 Intellectual Property 15 5.12 Owned Property; IMPRA Facilities 17 5.13 Compliance With Legislation Regulating Environmental Quality 17 5.14 Violations/Condemnation 18 5.15 Taxes 18 5.16 Product Liability Matters 19 5.17 No Undisclosed Liabilities 20 5.18 Agreement Does Not Contain Untrue Statements 20 5.19 Construction of Certain Provisions 20 5.20 No Additional Representations 20 ARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGER 21 6.1 Conduct of Business Pending the Merger 21 6.2 Compensation Plans 22 6.3 Legal Conditions to Merger 23 ARTICLE VII ADDITIONAL AGREEMENTS 23 7.1 Access and Information 23 7.2 Director and Officer Indemnification 23 7.3 Public Announcements 23 7.4 Expenses 24 7.5 Additional Agreements 24 7.6 Confidentiality 24 7.7 Real Estate Transaction 25 7.8 Bank Guarantees 25 7.9 Noncompete Agreements 25 7.10 IPE 25 7.11 Consulting Agreements 25 7.13 June 30, 1996 Financials 26 ARTICLE VIII CONDITIONS TO CONSUMMATION OF THE MERGER 26 8.1 Conditions to Both IMPRA'S and Buyer's Obligation to Effect the Merger 26 8.2 Conditions to Obligation of Each Company to Effect the Merger 27 ARTICLE IX TERMINATION, AMENDMENT AND WAIVER 27 9.1 Termination 27 9.2 Effect of Termination 28 9.3 Amendment 28 9.4 Waiver 28 ARTICLE X SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION 29 10.1 Survival, Indemnification 29 10.2 Procedure 31 10.3 Buyer's Indemnification 32 10.4 Contest, Challenge 32 ARTICLE XI GENERAL PROVISIONS 32 11.1 Brokers 32 11.2 Notices 33 11.3 Descriptive Headings 34 11.4 Entire Agreement, Assignment 34 11.5 Governing Law 35 11.6 Parties in Interest 35 11.7 Counterparts 35 11.8 Validity 35 11.9 Investigation 35 11.10 Consents 35 SCHEDULES AND EXHIBITS Seller Disclosure Schedule SCHEDULE 4 Persons to Whom "Knowledge" is Attributed EXHIBIT A-1 Harold Green Consulting Agreement EXHIBIT A-2 Elizabeth Green Consulting Agreement EXHIBIT B Opinion of Counsel EXHIBIT C Staying Bonus/Severance Agreements EXHIBIT D Agreement of Purchase and Sale and Escrow Instructions (BG&J Investments) EXHIBIT E Agreement of Purchase and Sale and Escrow Instructions (Baker-Green Investments) EXHIBIT F-1 Harold Green Noncompete Agreement EXHIBIT F-2 Elizabeth Green Noncompete Agreement EXHIBIT G Escrow Agreement EX-2 3 Exhibit 2(b) CONFORMED COPY FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER AMENDMENT, dated as of September 10, 1996, to the Agreement and Plan of Merger, dated as of August 2, 1996 (the "Agreement and Plan of Merger"), by and among C. R. Bard, Inc., a New Jersey corporation ("Buyer"), CRB Acquisition Company, an Arizona corporation and a wholly-owned subsidiary of Buyer ("Buyer Sub"), and IMPRA, Inc., an Arizona corporation ("IMPRA"). WHEREAS, the parties wish to amend the Agreement and Plan of Merger as herein set forth. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Defined Terms. Unless otherwise defined herein, all capitalized terms defined in the Agreement and Plan of Merger and used herein are so used as so defined. 2. Amendment to Sections 3.2(a) and 3.4 of the Agreement and Plan of Merger. Sections 3.2(a) and 3.4 of the Agreement and Plan of Merger shall be amended by deleting from the respective first sentences thereof the phrase "One Hundred Forty Three Million One Hundred Seventy Eight Thousand Five Hundred Thirty Nine Dollars ($143,178,539)" and substituting in lieu thereof the following new phrase: "One Hundred Forty Three Million One Hundred Ninety Five Thousand Five Hundred Thirty Nine Dollars ($143,195,539)". 3. Amendment to Section 3.4(a) of the Agreement and Plan of Merger. Section 3.4(a) of the Agreement and Plan of Merger shall be deleted in its entirety and the following substituted in lieu thereof: "Within sixty (60) days after the Effective Time, the Representative shall cause to be delivered to Buyer a consolidated balance sheet of IMPRA as at the close of business at the Effective Time (the "Effective Time Balance Sheet") together with the related consolidated statements of income, shareholders' equity and cash flows for the period from June 30, 1996 to the Effective Time (the "Related Effective Time Statements"), in each case as proposed to be delivered as final and audited by IMPRA's current independent accountants. Such financial statements shall be prepared based in pertinent part on a physical inventory that representatives of Buyer may observe. The Effective Time Balance Sheet and the Related Effective Time Statements shall be prepared in accordance with generally accepted accounting principles applied on a basis consistent with past practice, and the Effective Time Balance Sheet shall fairly present the assets and liabilities and financial condition of IMPRA at the Effective Time. The reasonable fees and expenses of IMPRA's current independent accountants for their services pursuant to this Section 3.4 shall be borne by the Surviving Corporation. After the Effective Time, Buyer agrees to give the Representative and IMPRA's current accountants reasonable access to IMPRA's books and records and to make available to such parties such employees of IMPRA and the Surviving Corporation as may be reasonably necessary in connection with the preparation of the Effective Time Balance Sheet. 4. Amendment to Section 3.4(b). Section 3.4(b) of the Agreement and Plan of Merger shall be amended by adding to the end thereof the following new sentence: "Buyer agrees not to raise as an objection, and shall not propose any Proposed Adjustment with respect to, the omission from the Effective Time Balance Sheet of a reserve relating to Vascutek inventory held by IMPRA." 5. Amendment to Section 3.4(g) of the Agreement and Plan of Merger. Section 3.4(g) of the Agreement and Plan of Merger shall be amended by adding to the end thereof the following new sentence: "Further, upon the Effective Time Balance Sheet becoming final, the Surviving Corporation shall request that IMPRA's current independent accountants deliver their final audit report with respect to the Effective Time Balance Sheet (including any adjustments) and the Related Effective Time Statements." 6. Limited Amendment. Except as expressly amended hereby, all the provisions of the Agreement and Plan of Merger shall continue to be in full force and effect in accordance with their terms. 7. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to the provisions thereof relating to conflicts of law. 8. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, each of Buyer, Buyer Sub and IMPRA has caused this Amendment to be executed on its behalf by its officers thereunto authorized, all as of the date first above written. C. R. BARD, INC. By: /s/ Richard A. Flink Name: Richard A. Flink Title: Vice President CRB ACQUISITION COMPANY By: /s/ Richard A. Flink Name: Richard A. Flink Title: President IMPRA, INC. By: /s/ Harold D. Green Name: Harold D. Green Title: President EX-99 4 Exhibit 99 News Release C. R. Bard, Inc. 730 Central Avenue Murray Hill, NJ 07974 Contact: E.L. Parker Vice President and Treasurer (908) 277-8059 BARD ANNOUNCES ACQUISITION OF IMPRA MURRAY HILL, NJ - September 16, 1996 - C. R. Bard, Inc. (NYSE-BCR) announced today that it has completed the acquisition of Impra, Inc. Impra, headquartered in Tempe, AZ, is a leader in the development, manufacturing and marketing of PTFE vascular grafts used for blood vessel replacement surgery. It offers more than 260 products to the vascular surgeon as a complete line, full service supplier, with sales for the fiscal year ended June 30, 1996, of $48.8 million. In addition, Impra has several active R&D programs in vascular graft and endovascular technology. "This acquisition will strengthen Bard's position in one of our key surgical markets and help fuel top line growth for 1996 and beyond," commented William H. Longfield, chairman and CEO. "The Impra acquisition fits very well with our strategy of strengthening our franchise product areas. We are particularly pleased with Impra's R&D capability, especially in the potentially large market opportunity for covering stents." Bard plans to consolidate its current vascular graft product line with the Impra products and headquarter the new subsidiary, named Bard Impra division, in the Tempe, AZ location. John McDermott, Impra's former chief operating officer, will manage Bard's new consolidated operation as president of Bard Impra. Bard paid $143.2 million for the common stock of Impra, making this the largest acquisition in Bard's history. Financing for the acquisition was accomplished under Bard's new $350 million commercial paper program which was initiated on Monday, September 9, 1996, with the sale of $100 million of commercial paper of varying maturities. C. R. Bard, Inc. headquartered in Murray Hill, NJ, is a leading multinational developer, manufacturer and marketer of health care products. # # # # # # -----END PRIVACY-ENHANCED MESSAGE-----