EXHIBIT 10.5
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of the 1st
day of January 2002, by and between APHERESIS TECHNOLOGIES, INC., a Florida
corporation ("ATI"); and OCCULOGIX CORPORATION, a Florida corporation (the
"Seller").
WITNESSETH:
WHEREAS, the Seller is the owner of certain assets used in
therapeutic apheresis business (the "Business"); and
WHEREAS, ATI desires to purchase, subject to certain liabilities,
substantially all of the assets of the Seller used in the Business, which
constitute only a portion of the assets of the Seller, and the Seller desires to
sell such assets, all upon the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, it is hereby agreed as follows:
1. PURCHASE AND SALE OF ASSETS: CLOSING.
(a) Purchase and Sale. Upon the terms and subject to the conditions
hereinafter set forth, the Seller hereby agrees to sell to ATI, and
ATI agrees to purchase from the Seller the assets owned or used by
the Seller in connection with the Business and listed on Exhibit A
to this Agreement (collectively, the "Assets").
(b) Procedure for Closing. At the closing of the transactions
contemplated hereby (the "Closing"), the Seller shall sell, assign,
transfer, convey and deliver to ATI free and clear of all
liabilities whatsoever (whether absolute or contingent, and
including all liens, encumbrances, equities, claims, charges or
interests of third persons) other than those liabilities set forth
on Exhibit B, and ATI shall purchase from the Seller, all of the
Seller's right, title and interest in or to the Assets. The Closing
shall be held at such place, date and time as the parties to this
Agreement may agree (the "Closing Date"). At the Closing, in
accordance with the terms of this Agreement, the Seller shall
deliver to ATI a xxxx or bills of sale, assignments and all other
instruments necessary or appropriate in the opinion of counsel to
ATI to convey all right, title and interest in or to the Assets to
ATI, and ATI shall deliver the consideration for the purchase of the
Assets as provided in Section 2 of this Agreement.
2. CONSIDERATION.
(a) Purchase Price. In consideration of the purchase, sale, conveyance,
transfer and delivery of the Assets, and upon the terms and subject
to the conditions of this Agreement, ATI shall pay, the sum of
TWENTY FIVE THOUSAND AND. NO/100 DOLLARS ($25,000.00), which the
parties agree is the fair market value
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of the Assets as determined by an independent appraisal performed by
Southland Business Group, 0000 Xxxxxxxxx Xxxx, Xxxxx XX (the
"Purchase Price"). The Purchase Price shall be paid by the execution
and delivery by ATI of an assumption agreement (the "Assumption
Agreement"), covering the liabilities specified on Exhibit B hereto.
(b) No Assumption of Liabilities. Except as set forth in the Assumption
Agreement, ATI shall not and does not assume any of the Seller's
liabilities, including but not limited to its accounts payable and
other trade liabilities incurred in the Business, or the debts,
taxes, contingencies or other liabilities of the Business, whether
fixed or contingent, and all such liabilities incurred prior to
Closing shall remain the sole obligation of the Seller.
3. REPRESENTATIONS AND WARRANTIES. The Seller hereby represents and warrants
to ATI the following:
(a) Organization and Standing. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Florida and has the corporate power and authority to
carry on its business as it is now being conducted.
(b) Authority Relative to this Agreement. The execution, delivery and
performance of this Agreement by the Seller have been duly
authorized by the Board of Directors of the Seller. No further
corporate or other action is necessary on its part to make this
Agreement valid and binding upon it and enforceable against it in
accordance with its terms or to carry out the transactions
contemplated hereby.
(c) No Violations. The execution, delivery and performance of this
Agreement by the Seller do not and will not (1) constitute a breach
or a violation of any law, rule or regulation, agreement, indenture,
deed of trust, mortgage, loan agreement or other instrument to which
the Seller is a party or by which it is bound; (2) constitute a
violation of any order, judgment or decree to which the Seller is a
party or by which it is bound or by which any of the Seller's assets
or properties are bound or affected; or (3) result in the creation
of any lien, charge or encumbrance upon any of the Setter's assets
or properties.
(d) Litigation. The Seller (1) is not a party to any litigation,
proceeding or administrative investigation and none is pending or
threatened against it, its properties, or any property used in the
Business, (2) knows of no basis for any such litigation, proceeding
or investigation which might have a material adverse effect,
financial or otherwise, on the Business, (3) knows of no outstanding
order, writ, injunction or decree of any court, government,
governmental authority or arbitration against or affecting the
Business; and (4) knows of no material infringement of any
copyright, trademark, trade name, patent or other proprietary right
owned or licensed by it.
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(e) Title to and Condition of Assets. The Seller has good and marketable
title to all the Assets. As of the date of this Agreement, such
assets are subject to no guaranty, judgment, execution, pledge,
lien, conditional sales agreement, security agreement, encumbrance
or charge, except as disclosed pursuant to this Agreement (with
respect to which no default exists) and except for liens for taxes
not delinquent. The Assets are in good condition and repair,
reasonable wear and tear excepted, and are operated in conformity
with all applicable building and zoning ordinances and regulations
and all other applicable laws, ordinances and regulations.
(f) Leases, Contracts and Commitments. The Seller is not a party to any
leases, contracts, agreements or commitments associated with the
Business, whether written or oral, of any nature (including
employment or consulting agreements, mortgages, loans, deeds of
trust, indentures, credit and collective bargaining agreements).
(g) Compliance With Applicable Laws. The conduct of the Business by the
Seller does not violate or infringe any federal, state, local or
foreign law, statute, ordinance, license or regulation that is
presently in effect. Such conduct does not violate or infringe any
right or concession, copyright, trademark, trade name, patent, know
how or other proprietary right of others, the enforcement of which
would adversely affect the Business or the value of the Assets. The
Seller has and has maintained all licenses and permits required by
all local, state and federal authorities and regulating bodies.
(h) Approvals and Consents. No consent, approval or authorization is
required in connection with the execution or delivery of this
Agreement by the Seller or the consummation by it of the
transactions contemplated hereby.
(i) Disclosure. No representation or warranty made by the Seller in this
Agreement, the exhibits hereto or any of the documents and papers
required to be delivered pursuant to this Agreement or in connection
with the consummation of the transactions contemplated hereby
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF ATI. ATI hereby represents and warrants
the following:
(a) Organization and Standing. ATI is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida and has the corporate power and authority to carry on its
business as it is now being conducted.
(b) Authority Relative to this Agreement. The execution and delivery of
this Agreement by ATI has been duly authorized by the Board of
Directors of ATI, and no further corporate action is necessary on
its part to make this Agreement
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valid and binding upon it and enforceable against it in accordance
with the terms hereof or to carry out the actions contemplated
hereby.
(c) Approvals and Consents. No additional consent, approval or
authorization is required in connection with the execution or
delivery of this Agreement by ATI or the consummation by ATI of the
transactions contemplated hereby.
(d) No Violations. The execution, delivery and performance of this
Agreement by ATI do not and will not (1) constitute a breach or a
violation of ATI's Articles of Incorporation or by laws, or of any
law, rule or regulation, agreement, indenture, deed of trust,
mortgage, loan agreement or other instrument to which ATI is a party
or by which it is bound; (2) constitute a violation of any order,
judgment or decree to which ATI is a party or by which it is bound
or by which any of ATI's assets or properties are bound or affected;
or (3) result in the creation of any lien, charge or encumbrance
upon any of ATI's assets or properties, except as contemplated by
this Agreement.
(e) Litigation. ATI (1) is not a party to any litigation, proceeding or
administrative investigation and none is pending or threatened
against such corporation, its properties, or any property used in
its business or the transactions contemplated by this Agreement; (2)
knows of no basis for any such litigation, proceeding or
investigation which might have a material adverse effect, financial
or otherwise, on its business, property, operations or prospects;
(3) knows of no outstanding order, writ, injunction or decree of any
court, government, governmental authority or arbitration against or
affecting it, its properties or business; and (4) knows of no
material infringement of any copyright, trademark, trade name,
patent or other proprietary right owned or licensed by it.
5. COVENANTS. The Seller hereby covenants the following:
(a) Conduct of the Business Until Closing. Except as ATI may otherwise
consent in writing, between the date of this Agreement and the
Closing Date, the Seller will:
(1) neither enter into any transaction, take any action nor fail
to take any action which would, or could reasonably be
expected to, materially adversely affect the Seller or its
usability to perform its obligations under this Agreement;
encumber any of the Assets, or dispose of any of the Assets;
(2) neither enter into any transaction, take any action nor fail
to take any action, in a manner which would result in any of
the representations, warranties, disclosures, agreements or
covenants of the Seller contained in this Agreement, the
exhibits hereto or any document delivered in connection with
the consummation of the transactions contemplated hereby, not
to be true and complete, as of the time of such transaction,
action or failure to take action, and also on the Closing
Date; and
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(3) maintain all the Assets in good condition and repair,
reasonable wear and tear excepted.
(b) Compliance with Laws. The Seller shall comply with all laws of the
State of Florida, the United States and any other governmental body
with jurisdiction over the Seller or the Business.
(c) Advice of Changes. Between the date of this Agreement and the
Closing, the Seller will promptly advise ATI in writing of any fact
which, if existing or known at the date of this Agreement, would
have been required to be set forth in or disclosed pursuant to this
Agreement.
(d) Other Transactions Prohibited. During the term of this Agreement,
the Seller will not enter into any written or oral agreements
providing for the sale, lease or mortgage of the Assets. .
(e) Access to Properties and Records, Etc. Between the date of this
Agreement and the Closing, after reasonable notice, the Seller will
provide to ATI and its counsel, accountants and other
representatives full access during normal business hours for
inspection of all of the properties, personnel, books, tax returns,
contracts, commitments and records of the Seller to the extent they
relate to the Business, and will furnish to ATI all such additional
documents and information with respect to the affairs of the
Business as ATI or its counsel or accountants may from time to time
reasonably request. All such books, tax returns, contracts,
commitments, documents and records of the Seller will be complete
and correct as of the date of any inspection by or delivery to ATI
or its representatives of such items.
6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ATI. The obligations of ATI
under this Agreement are subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (the fulfillment of any of
which may be waived in writing by ATI):
(a) Accuracy of Representations and Warranties. The representations,
warranties and statements of the Seller contained in this Agreement,
all exhibits hereto and any documents delivered in connection
herewith shall not only have been true and complete as of the date
of this Agreement but shall also be true and complete as though
again made on the Closing date, except to the extent that such
representations and warranties and statements are incorrect as of
such later date by reason of events occurring after the date of this
Agreement in compliance with the terms hereof.
(b) Compliance. The Seller shall have performed and complied with all
agreements, covenants and conditions required by this Agreement and
all exhibits hereto to be performed and complied with by it at or
prior to the Closing.
(c) Certificate. ATI shall have received a certificate executed by the
President of the Seller and attested to by its Secretary, dated the
Closing Date, satisfactory in form
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and substance to ATI and its counsel, certifying as to (1) the
fulfillment of the matters set forth in Sections 6(a) and (b) of
this Agreement and (2) the resolutions adopted by the Board of
Directors of the Seller approving. the execution of this Agreement
and the consummation of the transactions contemplated hereby and (3)
the resolutions adopted by the Stockholders of the Seller approving
the execution of this Agreement and the consummation of the
transactions contemplated hereby.
(d) Litigation. There shall not be any litigation or proceeding to
restrain or invalidate the consummation of the transactions
contemplated hereby.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. The obligations. of the
Seller under this Agreement are subject to the satisfaction at or prior to
the Closing of each of the following conditions (the fulfillment of any
one of which may be waived in writing by the Seller):
(a) Accuracy of Representations and Warranties. The representations,
warranties and statements of ATI contained in this Agreement shall
not only have been true and complete on the date of this Agreement
and when made but shall also be true and complete as though again
made on the Closing Date, except to the extent that they are
incorrect as of the Closing Date by reason of events occurring after
the date of this Agreement in compliance with the terms hereof.
(b) Compliance. ATI shall have performed and complied with all
agreements, covenants and conditions required by this Agreement and
all exhibits hereto to be performed and complied with by it at or
prior to the Closing.
(c) Certificate. The Seller shall have received a certificate executed
by the President of ATI and attested to by its Secretary, dated the
Closing Date, certifying as to (1) the fulfillment of the matters
mentioned in Sections 7(a) and (b) of this Agreement and (2) the
resolutions adopted by the Board of Directors of ATI approving the
execution of this Agreement and the consummation of the transactions
contemplated hereby.
8. INDEMNIFICATION.
(a) General -- Seller. The Seller agrees to indemnify and hold harmless
ATI in respect of any and all claims, losses and expenses which may
be incurred by ATI arising out of:
(1) any breach by the Seller of any representations, warranties,
covenants or agreements made in this Agreement, the exhibits
hereto or any document or paper delivered in connection with
the transactions contemplated hereby;
(2) any attempt by any person to cause or require ATI to pay or
discharge any debt, obligation, liability or commitment
inconsistent with any such representation, warranty, covenant
or agreement;
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(3) any action, suit, proceeding, assessment or judgment arising
out of or incident to any of the matters indemnified against
in this Section 8, including reasonable fees and disbursements
of counsel (before and at trial, in bankruptcy proceedings and
in appellate proceedings).
(b) General -- ATI. ATI agrees to indemnify and hold harmless the Seller
in respect of any and all claims, losses and expenses which may be
incurred by the Seller arising out of:
(1) any breach by ATI of any representations, warranties,
covenants or agreements made in this Agreement, the exhibits
hereto or any document or paper delivered in connection with
the transactions contemplated hereby;
(2) any attempt by any person to cause or require the Seller or
the Stockholder to pay or discharge any debt, obligation,
liability or commitment inconsistent with any such
representation, warranty, covenant or agreement, or any debt,
obligation, liability or commitment arising out of the
operation of the Business after Closing;
(3) any action, suit, proceeding, assessment or judgment arising
out of or incident to any of the matters indemnified against
in this Section 8, including reasonable fees and disbursements
of counsel (before and at trial, in bankruptcy proceedings and
in appellate proceedings).
9. GENERAL.
(a) No Brokers. Each of the parties to this Agreement represents and
warrants to the other, that it has not utilized the services of any
finder, broker or agent.
(b) Survival of Representations Warranties, Etc: Each of the parties to
this Agreement covenants and agrees that its representations,
warranties, covenants, statements and agreements contained in this
Agreement and the exhibits hereto and any document delivered in
connection herewith shall survive the Closing Date and terminate on
the fifth anniversary of such date.
(c) Waivers. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance
with any representation, warranty, covenant or agreement contained
herein, therein and in any document delivered in connection herewith
or therewith. The waiver by any party to this Agreement of a breach
of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach.
(d) Confidentiality. If the transactions contemplated by this Agreement
are not consummated, then each of the parties to this Agreement
agrees to keep confidential and shall not use for its own benefit
any of the information (unless in the public domain) obtained from
any other party and shall promptly return to
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such other parties all schedules, documents or other written
information (without retaining copies thereof) previously obtained
from such other parties.
(e) Entire Agreement, Amendment. This Agreement (including the exhibits
hereto and all documents and papers delivered pursuant hereto)
constitutes the entire agreement, and supersedes all prior
agreements and understandings, oral and written, among the parties
to this Agreement with respect to the subject matter hereof. This
Agreement may not be modified or otherwise amended except by an
instrument in writing executed by the parties to this Agreement.
(f) Assignability. This Agreement shall not be assignable by any party
to this Agreement without the prior written consent of the other
party to this Agreement.
(g) Further Assurances. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements or other instruments as
either party may reasonably request for the purpose of carrying out
the transactions contemplated by this Agreement.
(h) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(i) Section and Other Headings. The section and other headings contained
in this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
(j) Governing Law. The validity, construction and enforcement of, and
the remedies under, this Agreement shall be governed in accordance
with the laws of the State of Florida.
(k) Construction. The parties acknowledge and agree that each of them
has participated in the negotiation of this Agreement and has been
represented by counsel. The parties agree that any rule of law
requiring construction of a document against a party by reason such
party's having prepared such document shall not apply to this
Agreement.
(l) Cost of Enforcement. If either party engages the services of an
attorney or any other third party or in any way initiates legal
action to enforce its rights under this Agreement, the nonprevailing
party agrees to pay to the prevailing party all costs and expenses
incurred by it relating to the enforcement of this Agreement
(including reasonable attorneys' and legal assistants' fees before,
at and after trial and in appellate proceedings).
IN WITNESS WHEREOF, this Agreement has been signed by the parties
hereto, all on the date first above written.
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APHERESIS TECHNOLOGIES, INC. OCCULOGIX CORPORATION
/s/ Xxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
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By: Xxxx Xxxxxxx By: Xxxxxxx Xxxxx
EXHIBIT A
Assets
1. Distributorship rights as defined in the 2001 Asahi/ATI Distributorship
Agreement
2. ATI Balance Sheet dated December 31, 2001, including
ATI Assets
Cash in Bank (Schedule A)
Accounts Receivable (Schedule B)
Inventory (Schedule C)
Prepaid Expenses (Schedule D)
Prepaid Taxes
Contingent Assets (Schedule E)
Fixed Assets (Schedule F)
Depreciable Assets, Accumulated Depreciation
Property
Other Assets:
Previously Expensed Items
Cash in Bank
Deposits Receivable and Bond Receivable
ATI Accounting Computer Software, Customer Files
Capital
Paid in Capital, Retained Earnings, Common Stock
Other ATI Assets:
Contracts/Agreements
ATI Employee Agreements
Lease / Rent Agreements
Service Agreements,
Consulting Agreements
Regulatory Files and correspondence (Excluding IDE # G970241)
Asahi Plasmaflo AP 05H(L), #P820033
Xxxxx Xxxxxxxxx XX-000 #X000000
XXX Plasma Pump PP-04, #K961137
ATI Plasma Exchange Tubeset, Model 064, K831747
ATIPlasma Discard Bag, K926409
Asahl Blood Pump ABP-03A, K830818
ATI Plasmaflo OP-051W(L) for stand alone use in TPEX
ATI Accounts Payable (Schedule G)
Sales Tax Payable (Schedule H)
Other Short Term Liabilities (Schedule 1)
Notes Payable, Royalties, Line of Credit (South Trust Bank,
Amex)
EXHIBIT B
Assumed Liabilities
$25,000 of Occulogix payable to ATI will be credited by ATI against
the Occulogix "Contingent Asset."
