Exhibit 10 Purchase agreement dated as of March 20, 2000 between
DiagnosTech, Inc., a subsidiary of La Jolla Diagnostics, Inc., and
Meridian Diagnostics, Inc.
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PURCHASE AGREEMENT
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DATED AS OF MARCH 20, 2000
BETWEEN
MERIDIAN DIAGNOSTICS, INC.,
AS PURCHASER
AND
DIAGNOSTECH, INC.
(a Subsidiary of La Jolla Diagnostics, Inc.)
AS SELLER
AND
LA JOLLA DIAGNOSTICS, INC.
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TABLE OF CONTENTS
Page
ARTICLE 1 PURCHASE AND SALE...................................... 1
1.1 Agreement to Sell...................................... 1
1.2 Agreement to Purchase.................................. 2
1.3 The Purchase Price..................................... 2
1.4 Payment of Purchase Price.............................. 2
1.5 Royalty Payment........................................ 2
1.6 Additional Payments.................................... 2
1.7 Books and Records...................................... 3
1.8 Seller's Right to Repurchase........................... 3
ARTICLE 2 CLOSING, ITEMS TO BE DELIVERED, THIRD PARTY
CONSENTS, AND FURTHER ASSURANCES....................... 4
2.1 Closing................................................ 4
2.2 Items to be Delivered at Closing By Seller............. 4
2.3 Items to be Delivered at Closing by Purchaser.......... 4
2.4 Further Assurances..................................... 4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER AND LA JOLLA.. 4
3.1 Corporate Existence.................................... 4
3.2 Corporate Power; Authorization; Enforceable Obligations 5
3.3 No Third Party Options................................. 5
3.4 Title to Assets; Condition of Assets................... 5
3.5 Government Compliance.................................. 5
3.6 Continuing Contracts................................... 5
3.7 Trademarks............................................. 5
3.8 Technology............................................. 5
3.9 Tax Matters............................................ 6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER............ 6
4.1 Corporate Existence.................................... 6
4.2 Corporate Power and Authorization...................... 6
ARTICLE 5 RETURN OF ASSETS....................................... 6
5.1 Return of Assets....................................... 6
ARTICLE 6 MISCELLANEOUS.......................................... 7
6.1 Transfer of Technology. Seller shall make available to 7
6.2 Inquiries.............................................. 7
6.3 Use of La Jolla Name................................... 7
6.4 Noncompete............................................. 7
6.5 Brokers' and Finders' Fees............................. 8
6.6 Indemnification........................................ 8
6.7 Expenses............................................... 8
6.8 Knowledge of the Seller................................ 8
6.9 Assignment and Binding Effect.......................... 8
6.10 Waiver................................................. 9
6.11 Notices................................................ 9
6.12 Governing Law.......................................... 10
6.13 Headings, Gender and "Person."......................... 10
6.14 Schedules and Exhibits................................. 10
6.15 Severability........................................... 10
6.16 Counterparts........................................... 10
6.17 Entire Agreement....................................... 10
6.18 Amendments............................................. 10
6.19 Exclusive Benefits..................................... 10
6.20 Delays or Omissions.................................... 11
6.21 Construction........................................... 11
ARTICLE 7 ADDITIONAL DEFINITIONS................................. 11
7.1 Technology............................................. 11
Exhibits, Schedules and Attachments
Schedule 3.6 - Continuing Contracts................................... 13
Schedule 3.7 - Marks.................................................. 14
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PURCHASE AGREEMENT
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PURCHASE AGREEMENT, dated as of March 20, 2000, by and between
DIAGNOSTECH, INC., a subsidiary of La Jolla Diagnostics, Inc., a California
corporation ("Seller"), LA JOLLA DIAGNOSTICS, INC., a California corporation
("La Jolla") and MERIDIAN DIAGNOSTICS, INC., an Ohio corporation ("Meridian" or
the "Purchaser"), with reference to the following RECITALS:
A. Seller is engaged in, among other things, the manufacturing,
marketing, distribution and sale of certain medical diagnostic products
including the Myco Bacterium Tuberculosis Test (the "Product").
B. Seller is the sole owner of the right, title and interest in and to
the Product.
C. Purchaser is engaged in the business of manufacturing and selling
medical diagnostic products, and desires to purchase the Product of Seller.
D. Subject to the limitations and exclusions contained in this
Agreement and on the terms and conditions hereinafter set forth, Seller and
La Jolla desire to sell and Purchaser desires to purchase the Product.
NOW, THEREFORE, in consideration of the recitals and of the respective
covenants, representations, warranties and agreements herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE 1
---------
PURCHASE AND SALE
-----------------
1.1 AGREEMENT TO SELL.
(a) At the Closing hereunder, Seller and La Jolla shall grant,
sell, convey, assign, transfer and deliver to Purchaser, upon and subject to
the terms and conditions of this Agreement, all right, title and interest of
Seller and La Jolla in and to (i) the Product and all rights incident thereto
including the product name, licenses, and other sale or distribution rights
related thereto, and all goodwill associated therewith; (ii) Marks (as defined
in Section 3.7 hereof) and rights under any trademark, service xxxx, trade name
or copyright relating to the Product; (iii) all Technology, improvements
thereto, trade secrets, inventions, patents or patents pending and other
intellectual property related to the Product or under development, including,
without limitation, technical know-how, quality control procedures and 510K
authorizations relating to the Product, to the extent transferable; (iv) all
inventory of Product in finished form or unfinished form on the Closing Date;
and (v) all information, files, records, data, plans, contracts and recorded
knowledge, including customer, prospective customer and supplier lists, related
to (i) through (iv) above (all of which are herein sometimes collectively
referred to as the "Assets"), free and clear of all mortgages, liens, pledges,
security interests, charges, claims, restrictions, encumbrances and interests
of any nature.
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1.2 AGREEMENT TO PURCHASE. At the Closing hereunder, Purchaser shall
purchase the Assets from Seller, upon and subject to the terms and conditions
of this Agreement and in reliance on the representations, warranties and
covenants of Seller contained herein, in exchange for the Purchase Price.
1.3 THE PURCHASE PRICE. The Purchase Price shall be Twenty Five
Thousand and 00/100 Dollars ($25,000.00) payable at the Closing.
1.4 PAYMENT OF PURCHASE PRICE. Purchaser shall pay to Seller the
Purchase Price set forth in Section 1.3 by wire transfer of immediately
available funds to such account as Seller shall designate.
1.5 ROYALTY PAYMENT. Purchaser shall pay to Seller a royalty fee equal
to eight percent (8%) of Purchaser's net sales of the Product for the period
that Purchaser sells the Product. For purposes of this Agreement, Purchaser's
net sales shall mean the aggregate amount invoiced for sales or rental of the
Product by Purchaser to a person or entity (other than an affiliate of
Purchaser) less (a) sales, service, value-added or similar taxes or excises
incurred in connection with such sale, and (b) governmental charges incurred in
connection with the importation or exportation of such Product in final form;
and (c) credit allowances, rebates to, and charge backs from the account of,
such person or entity for spoiled, damaged, rejected or returned Product, and
(d) transportation, shipping and any other delivery charges of the Product.
Purchaser agrees to pay to Seller the royalty fee required by this Section 1.5
within thirty (30) days after the close of each fiscal quarter of Purchaser for
each December, March, June and September. Net Sales include all sales by
Purchaser and any assignee, licensee, or other successor in interest of
Purchaser.
1.6 Additional Payments. Purchaser shall pay Seller the following
additional amounts, but in no event shall Purchaser be obligated to make any
payments to Seller in excess of Three Hundred Thousand and 00/100 Dollars
($300,000.00) pursuant to this Section 1.6. Net Sales include all sales by
Purchaser and any assignee, licensee, or other successor in interest of
Purchaser:
(a) If and when Purchaser reaches annual aggregate net sales
of Two Million and 00/100 Dollars ($2,000,000.00) but less than Five Million
and 00/100 Dollars ($5,000,000.00) of the Product, calculated in any one year
of Purchaser based on Purchaser's fiscal year beginning October 1 and ending on
September 30, Purchaser shall pay Seller One Hundred Thousand and 00/100
Dollars ($100,000.00) within forty five (45) days of the date such sales of the
Product are made; and
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(b) If and when Purchaser reaches annual aggregate net sales
of Five Million and 00/100 Dollars ($5,000,000.00) or greater of the Product,
calculated in any one year of Purchaser based on Purchaser's fiscal year
beginning October 1 and ending on September 30, Purchaser shall pay Seller Two
Hundred Thousand and 00/100 Dollars ($200,000.00) within forty five (45) days
of the date such sales of the Product are made.
1.7 BOOKS AND RECORDS. Purchaser and its affiliates shall keep
accurate books and records as reasonably needed for determination of Sales
Royalty payments due under Section 1.5 above. Such books and records shall be
maintained for a period of at least three (3) years from the expiration of the
relevant Sales Royalty payment period.
Not more than once in each fiscal year, Seller may have the books
and records of the Purchaser or any of its successors, audited by an
independent certified public accounting firm ("CPA Firm") reasonably acceptable
to Purchaser to the extent necessary to verify the correctness of any Sales
Royalty payment report furnished under this Agreement. If such independent CPA
Firm should determine that an underpayment of Sales Royalty may have occurred,
Seller may have Purchaser's independent accountants review the Purchaser's
records and the report and calculations of the CPA Firm to determine
Purchaser's agreement. If the CPA Firm and Purchaser's independent accountants
do not agree, and the parties cannot agree to a mutually satisfactory
resolution, then a third accounting firm shall be hired by the parties to
finally resolve the correct amount due. The determination by the third
independent certified public accounting firm shall be final. The CPA Firm or
any third firm shall keep all information received in connection with any audit
confidential, and they shall report to Seller and Purchaser only the accuracy
of and/or any deficiencies in any such Sales Royalty payment report. The fee
for such CPA Firm and any third firm shall be paid by Seller unless the audit
finally results in an upward adjustment of Sales Royalty payments due Seller by
more than Five Percent (5%) of the amount due under this Agreement; in such
case, Purchaser shall pay the full cost of such audits. In any event,
Purchaser shall pay any finally determined underpayment with interest in
accordance with Section 1.3 above.
1.8 SELLER'S RIGHT TO REPURCHASE. If Purchaser notifies Seller in
writing that it has ceased production and distribution of the Product, Seller
shall have the right of first refusal, to be exercised within thirty (30) days
of receipt of Purchaser's written notice, to repurchase the Assets, excluding
all improvements to the Product made by Purchaser, for the sum of Twenty-Five
Thousand Dollars ($25,000.00). If Seller fails to respond during such thirty
(30) day period in writing to Purchaser, it shall be deemed that Seller does
not wish to exercise its right of first refusal. If Seller exercises the right
to purchase granted in this Section 1.8, the Closing shall occur within thirty
(30) days of Seller's written notification of its desire to exercise its right
to repurchase.
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ARTICLE 2
CLOSING, ITEMS TO BE DELIVERED, THIRD PARTY
CONSENTS, AND FURTHER ASSURANCES
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2.1 CLOSING. The closing (the "Closing") of the sale and purchase of
the Assets are taking place contemporaneously with the execution of this
Agreement. The date of the Closing is sometimes herein referred to as the
"Closing Date."
2.2 ITEMS TO BE DELIVERED AT CLOSING BY SELLER. At the Closing and
subject to the terms and conditions herein contained, Seller shall deliver to
Purchaser the following:
(a) The xxxx of sale as shall be necessary and effective to
transfer and assign to, and vest in, Purchaser good and valid title in all of
Seller's right, title and interest in and to the Assets; and
(b) Any and all tests, manuals, clinical data, production
processes or other written material of whatsoever kind or nature relating to
the Product or the Technology in the possession or the property of Seller,
including without limitation all governmental approvals and filings.
2.3 ITEMS TO BE DELIVERED AT CLOSING BY PURCHASER. At the Closing and
subject to the terms and conditions herein contained, Purchaser shall deliver
to Seller the Purchase Price in accordance with Section 1.3.
2.4 FURTHER ASSURANCES. After the Closing, each of the parties hereto
will cooperate with the other and execute and deliver to the other parties
hereto such other instruments and documents and take such other actions as may
be reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes of this
Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND LA JOLLA
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Seller and La Jolla, jointly and severally, hereby represent and warrant
to Purchaser that:
3.1 CORPORATE EXISTENCE. Seller and La Jolla are corporations duly
organized, validly existing and in good standing under the laws of the State of
California. Seller is duly qualified to conduct business and is in good
standing as a foreign corporation in each jurisdiction where the conduct of its
business requires it to be so qualified, except to the extent the failure to so
qualify would not have a material adverse effect on Seller.
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3.2 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Seller
and La Jolla have the power, authority and legal right to execute, deliver and
perform this Agreement. The execution, delivery and performance of this
Agreement by Seller and La Jolla have been duly authorized by all necessary
corporate action. This Agreement has been, and the other agreements, documents
and instruments required to be delivered by Seller and La Jolla in accordance
with the provisions hereof (the "Documents") will be, duly executed and
delivered on behalf of Seller and La Jolla, and this Agreement constitutes, and
the Documents when executed and delivered will constitute, the legal, valid and
binding obligations of Seller, and La Jolla enforceable against Seller and La
Jolla in accordance with their respective terms.
3.3 NO THIRD PARTY OPTIONS. There are no existing agreements,
options, commitments or rights with, of or to any person to acquire any of
Seller's assets, properties or rights included in the Assets or any interest
therein, except for those contracts entered into in the normal course of
business consistent with past practice for the sale of Product inventory of
Seller.
3.4 TITLE TO ASSETS; CONDITION OF ASSETS. Seller has good, valid and
marketable title to the Product; free and clear of all mortgages, liens,
pledges or security interests.
3.5 GOVERNMENT COMPLIANCE. Seller has obtained all necessary
approvals, licenses and permits for the manufacture and sale of the Product and
Technology in each other jurisdiction where the Product is currently sold and
Seller is not in violation of any material governmental statute, rule or
regulation relating to the manufacture and sale of the Product.
3.6 CONTINUING CONTRACTS. Schedule 3.6 attached hereto contains a
correct and complete list of all contracts, agreements, commitments, and
engagements of the Seller relating to the Product and the Technology.
3.7 TRADEMARKS. Schedule 3.7 hereto contains a true, correct and
complete description of all trademarks, service marks, trade names, copyrights,
and all applications therefore used with the Product and the Business,
(collectively the "Marks"). Seller and La Jolla have the sole and exclusive
right to use the Marks. Seller has no knowledge of any infringement of its
Marks by any person and no claims or litigation have been asserted or
threatened by any person contesting the right of Seller to use, or the validity
of the Marks, or challenging or questioning the validity or effectiveness of
any license or agreement pertaining thereto, and the use of any such Marks by
Seller does not infringe on the rights of any person or violate any license or
other agreement applicable thereto.
3.8 TECHNOLOGY. Seller has the sole and exclusive right to the
Technology and the right to transfer the Technology to Purchaser. Seller has
no knowledge of any infringement of its Technology by any person and no claims
or litigation have been asserted or threatened by any person contesting the
right of Seller to use, or challenging or questioning the validity or
effectiveness of any license or agreement pertaining thereto, and the use of
such Technology by Seller does not infringe on the rights of any person or
violate any license or agreement applicable thereto. If any party alleges
infringement by Purchaser's purchase and subsequent use of the Technology,
Seller shall hold harmless and defend Purchaser against any and all such
claims, damages, liabilities and expenses, and shall further allow Purchaser to
resolve any such claim of infringement with any Person or entity, and reduce
the Royalty Payment due pursuant to Section 1.5 by a corresponding amount to
reimburse Purchase in full for any and all such payments or expenses made to
resolve such infringement, whether such payments are cash payments,
royalty/license payments or payments made over time.
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3.9 TAX MATTERS. To the best of Seller's knowledge, the Product
constitutes a separate unit of a trade or business under Internal Revenue Code
("IRC") Section 41(f)(3)(A). The qualified research and experimental expenses
incurred in the base period from September 1998 through March 2000 were Three
Hundred Ninety-Nine Thousand Four Hundred Seventy-Six and 87/100 Dollars
($399,476.87). No gross receipts were recorded during the base period. This
information is being furnished under IRC Section 41(f)(3)(B).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser represents and warrants to Seller and La Jolla as follows:
4.1 CORPORATE EXISTENCE. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio.
4.2 CORPORATE POWER AND AUTHORIZATION. Purchaser has the corporate
power, authority and legal right to execute, deliver and perform this
Agreement. The execution, delivery and performance of this Agreement by
Purchaser has been duly authorized by all necessary corporate action. This
Agreement has been, and the other agreements, documents and instruments
required by Purchaser in accordance with the provisions hereof ("Purchaser's
Documents") will be, duly executed and delivered by Purchaser and this
Agreement constitutes and the Purchaser's Documents when executed and delivered
will constitute, the legal, valid and binding obligations of Purchaser
enforceable against Purchaser in accordance with its respective terms.
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ARTICLE 5
RETURN OF ASSETS
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5.1 RETURN OF ASSETS. In the event Purchaser fails to make the
payments provided under Article I of this Agreement within thirty (30) days
after the due date, Purchaser shall immediately return the Product and the
Assets to Seller, including all materials furnished to Purchaser and all copies
and reproductions thereof and shall execute any and all documentation that
Seller shall deem necessary or appropriate to cause a complete return of the
Assets to Seller, free, clear and unencumbered. Upon return of the Assets to
Seller, Purchaser shall have no right, title or interest in the Assets.
ARTICLE 6
MISCELLANEOUS
-------------
6.1 TRANSFER OF TECHNOLOGY. Seller shall make available to Purchaser
sufficient qualified personnel capable of transferring Technology to Purchaser;
such personnel of Seller will train Purchaser's personnel to reproduce the
antigen antibodies and reagents necessary for the continued production of the
Product.
6.2 INQUIRIES. Seller shall refer all inquiries regarding the Product
which it receives to Purchaser.
6.3 USE OF LA JOLLA NAME. Purchaser shall be permitted to use the
La Jolla trade name for a period of six (6) months from the date hereof in
connection with the marketing, advertising and promoting of the Product solely
with the following references: "The Product was acquired from La Jolla" or
"The Product formerly manufactured by La Jolla." If Purchaser desires to use
other phrases or terms referencing La Jolla in any manner, prior written
approval shall be obtained before such use. Nothing in this Section 6.3, or in
this Agreement, shall be deemed to give Purchaser any claim or right to the
La Jolla name or trademarks pertaining to the Product during or after
termination of this Agreement. Any and all use of the La Jolla name hereunder
by Purchaser shall be solely in conjunction with the Product as specified
herein and any such use shall inure to the benefit of La Jolla.
6.4 NONCOMPETE. For the period that this Agreement is in effect and
for a period of one (1) year after the date of termination of this Agreement
for any reason, Seller and La Jolla covenant and agree that Seller and La Jolla
shall not, directly or indirectly, sell, distribute or otherwise market any
product which is in direct competition with the Product, provided, however,
that Seller and La Jolla and their affiliates shall have the right to use the
Technology to develop a product which does not compete with the Product. In
the event that Seller or La Jolla breach Section 6.4 of this Agreement, in
addition to any other remedies to which Purchaser may be entitled (by law,
equity or otherwise), during the term of such breach Purchaser shall have no
obligation for making the royalty payments otherwise required by Section 1.5 of
this Agreement.
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6.5 BROKERS' AND FINDERS' FEES.
(a) Seller and La Jolla represent and warrant to Purchaser
that all negotiations relative to this Agreement have been carried on by it and
its representations without the intervention of any person who may be entitled
to any brokerage or finder's fee or other commission in respect of this
Agreement or the consummation of the transactions contemplated hereby, and
Seller and La Jolla agree to indemnify and hold harmless Purchaser against any
and all claims, losses, liabilities and expenses which may be asserted against
or incurred by it as a result of Seller's dealings, arrangements or agreement
with any such person.
(b) Purchaser represents and warrants that all negotiations
relative to this Agreement have been carried on by it directly without the
intervention of any person who may be entitled to any brokerage or finder's fee
or other commission in respect of this Agreement or the consummation of the
transactions contemplated hereby, and Purchaser agrees to indemnify and hold
harmless Seller against any and all claims, losses, liabilities and expenses
which may be asserted against or incurred by it as a result of Purchaser's
dealings, arrangements or agreements with any such person.
6.6 INDEMNIFICATION.
(a) Purchaser shall indemnify, defend and hold harmless Seller
and La Jolla from and against any claims, liabilities and damages that Seller
or La Jolla may incur arising from sales of the Product from and after the
Closing, and any breach of this Agreement by Purchaser.
(b) Seller and La Jolla, jointly and severally, shall hold
harmless, defend and indemnify Purchaser from and against any claims,
liabilities and damages that Purchaser may incur arising from sales of the
Product prior to and up to the Closing by Seller, and any breach of this
Agreement by Seller or La Jolla.
6.7 EXPENSES. Except as otherwise provided in this Agreement, each
party hereto shall pay its own expenses incidental to the preparation of this
Agreement, the carrying out of the provisions of this Agreement and the
consummation of the transactions contemplated hereby.
6.8 KNOWLEDGE OF THE SELLER. As used in this Agreement, the terms "to
the best knowledge of the Seller," "to the best of Seller's knowledge," or
similar phrases, shall mean the actual knowledge of any officers, directors or
senior employees of the Seller.
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6.9 ASSIGNMENT AND BINDING EFFECT. All of the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the successors and assigns of Seller and Purchaser.
6.10 WAIVER. Any term or provision of this Agreement may be waived at
any time by the party entitled to the benefit thereof by a written instrument
duly executed by such party.
6.11 NOTICES. Any notice, request, demand, waiver, consent, approval
or other communication which is required or permitted hereunder shall be in
writing and shall be deemed given only if delivered personally or sent by
registered or certified mail, postage prepaid, as follows:
If to Seller, to:
DIAGNOSTECH, INC., a subsidiary of
LA JOLLA DIAGNOSTICS, INC.
0000 Xxxxxxx Xxx., Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
If to La Jolla, to:
LA JOLLA DIAGNOSTICS, INC.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
If to Purchaser, to:
MERIDIAN DIAGNOSTICS, INC.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: President
With a required copy to:
Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L.
Xxx Xxxx Xxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
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or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as
of the date so delivered, telegraphed or mailed.
6.12 GOVERNING LAW. This Agreement and the legal relations between the
parties shall be governed by, interpreted and enforced in accordance with the
laws of the State of Ohio.
6.13 HEADINGS, GENDER AND "PERSON." All section headings contained in
this Agreement are for convenience of reference only, do not form a part of
this Agreement and shall not affect in any way the meaning or interpretation of
this Agreement. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine, or neuter, as
the context requires. Any reference to a "person" herein shall include an
individual, firm, corporation, partnership, trust, governmental authority or
body, association, unincorporated organization or any other entity.
6.14 SCHEDULES AND EXHIBITS. All Attachments, Exhibits and Schedules
referred to herein are intended to be and hereby are specifically made a part
of this Agreement.
6.15 SEVERABILITY. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
6.16 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more counterparts
taken together shall have been executed and delivered by the parties. It shall
not be necessary in making proof of this Agreement or any counterpart hereof to
produce or account for any of the other counterparts.
6.17 ENTIRE AGREEMENT. This Agreement, including the Attachments,
Schedules and other documents referred to herein which form a part hereof, and
any confidentiality agreement entered into by the parties hereto, contain the
entire understanding of the parties with respect to the subject matter
contained herein and therein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter
other than the confidentiality agreement previously referenced. The
representations and warranties of Seller, La Jolla and Purchaser shall survive
the Closing of this Agreement.
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6.18 AMENDMENTS. This Agreement may not be changed orally, but only by
an agreement in writing signed by each of the parties hereto. Any provision of
this Agreement can be waived, amended, supplemented or modified by written
agreement of each of the parties hereto.
6.19 EXCLUSIVE BENEFITS. Nothing in this Agreement is intended to
confer any rights or remedies, whether express or implied, under or by reason
of this Agreement, on any persons other than the parties hereto and their
respective successors and assigns, nor is anything in this Agreement intended
to relieve or discharge the obligation or liability of any third persons to any
party to this Agreement.
6.20 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party hereto, upon any breach or default of any
other party hereto, under this Agreement, shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or in any similar breach or
default thereafter occurring, nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring.
6.21 CONSTRUCTION. This Agreement is to be deemed to have been
prepared jointly by the parties hereto after arms-length negotiations, and any
uncertainty or ambiguity existing herein shall not be interpreted against any
party, but according to the application of the rules of interpretation or
contracts.
ARTICLE 7
ADDITIONAL DEFINITIONS
----------------------
For purposes of this Agreement the following terms shall have the meanings
set forth below:
7.1 TECHNOLOGY. "Technology" means the patented and unpatented
proprietary information and know how of Seller relating to the manufacture, use
and application of the Product or improvements thereto, including, but not
limited by enumeration to, all know how methods, data and information relating
to the formulation, composition, synthesis, testing, evaluation, quantities,
ingredients, sources, specifications, equipment, test data, methods, materials,
components, assay, stability, sensitivity, specificity and quality testing.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first written.
MERIDIAN DIAGNOSTICS, INC.
(Purchaser)
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman & CEO
DiagnosTech, Inc., a subsidiary of
La Jolla Diagnostics, Inc. (Seller)
By: /s/ Xxx Xxxxxxx
-----------------------
Name: Xxx Xxxxxxx
Title: Chairman and C.E.O.
LA JOLLA DIAGNOSTICS, INC. (La Jolla)
By: /s/ Xxx Xxxxxxx
-----------------------
Name: Xxx Xxxxxxx
Title: Chairman and C.E.O.
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Schedule 3.6
Continuing Contracts
None
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Schedule 3.7
Marks
None
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XXXX OF SALE
This Xxxx of Sale dated as of March 20, 2000 is executed and delivered by
DiagnosTech, Inc., a subsidiary of La Jolla Diagnostics, Inc., a California
corporation ("Seller"), La Jolla Diagnostics, Inc., a California corporation
("La Jolla") to Meridian Diagnostics, Inc., an Ohio corporation ("Purchaser").
All capitalized words and terms used in this Xxxx of Sale and not defined
herein shall have the respective meanings given to them in the Purchase
Agreement dated as of March 20, 2000 by and between the Seller, La Jolla and
the Purchaser (the "Agreement").
WHEREAS, pursuant to the Agreement, the Seller and La Jolla have agreed to
sell, transfer, convey, and assign and deliver to the Purchaser the Assets; and
NOW, THEREFORE, for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Seller and La Jolla hereby
agree as follows:
1. The Seller and La Jolla hereby sell, transfer, convey, assign and
deliver to the Purchaser, its successors and assigns, to have and to
hold forever, all of the Assets.
2. The Seller and La Jolla hereby covenant and agree that each will, at
the request of the Purchaser and without further consideration,
execute and deliver, and will cause their employees to execute and
deliver such other instruments of sale, transfer, conveyance and
assignment, and to take such other action as may be reasonably
necessary to more effectively sell, transfer, convey and assign and
deliver to, invest in the Purchaser, its successors and assigns,
good, clear, record and marketable title to the Assets hereby sold,
transferred, conveyed, assigned and delivered, or intended so to be,
and to put Purchaser in actual possession and operating control
thereof, to assist Purchaser in exercising all rights with respect
thereto and to carry out the purpose and intent of the Agreement.
3. Seller and La Jolla, by their execution of this Xxxx of Sale, and the
Purchaser, by its acceptance of the Xxxx of Sale, each hereby
acknowledge and agree that neither the representations and warranties
nor the rights and remedies of any party under the Agreement shall be
deemed to be enlarged, modified or altered in any way by this Xxxx of
Sale, and shall survive the delivery of this Xxxx of Sale.
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IN WITNESS WHEREOF, the Seller and Purchaser have caused this Xxxx of Sale
to be duly executed as of and on the date first above written.
WITNESS: DIAGNOSTECH, INC.,
a subsidiary of La Jolla Diagnostics, Inc.
/s/ X X Xxxxxxxxx BY: /s/ Xxx Xxxxxxx
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LA JOLLA DIAGNOSTICS, INC.
/s/ X X Xxxxxxxxx BY: /s/ Xxx Xxxxxxx
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ACCEPTED:
MERIDIAN DIAGNOSTICS, INC.
BY: /s/ Xxxxxxx X. Xxxxx
TITLE: Chairman & CEO
