Exhibit 10.5
ASSET SALE AGREEMENT
RAPIGNOST -Registered Trademark- URINE TEST STRIP BUSINESS
This Asset Sale Agreement (this "Agreement") is made and entered into as of
November 26, 1999 ("Effective Date") by and between:
Quidel Deutschland GmbH, a company formed under the laws of Germany
with its registered office at Czernyring 22/10, 69115 Heidelberg, and
Quidel Corporation, a Delaware corporation with its registered office
at 00000 XxXxxxxx Xxxxx, Xxx Xxxxx 00000, Xxxxxxxxxx, XXX (collectively
the "Purchaser");
and
Dade Behring Marburg GmbH, a German corporation, with its registered
office at Xxxx xxx Xxxxxxx Xxx. 00, 00000 Xxxxxxx, Xxxxxxx (the
"Seller").
The Purchaser and the Seller are sometimes referred to herein individually as a
"Party" and collectively as the "Parties". Unless otherwise indicated,
capitalized terms used but not defined prior to the first usage herein are
defined in Article XIII.
WHEREAS, the Seller owns and operates the Rapignost -Registered Trademark- Urine
Test Strip Business, as defined herein and referred to herein as the "Business";
WHEREAS, the Purchaser desires to purchase from the Seller and the Seller
desires to sell to the Purchaser certain assets of the Business, and the Seller
desires to transfer to the Purchaser and the Purchaser desires to assume from
the Seller certain liabilities of the Seller, in each case upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements made
herein, and of the mutual benefit derived hereby, the Parties, intending to be
legally bound, agree as set forth herein.
ARTICLE I
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
1.1 PURCHASED ASSETS. On and subject to the terms and conditions set forth
in this Agreement (except as set forth in section 1.1.5), the Seller
hereby sells, assigns, transfers, and delivers to the Purchaser, or a
designated Affiliate of Purchaser, (and shall cause its Affiliates to
sell, assign, transfer, and deliver), and the Purchaser, or a
designated Affiliate of Purchaser, hereby purchases from the Seller,
all of the Seller's right, title, and interest in and to the following
(collectively, the "Purchased Assets"):
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1.1.1 MACHINERY AND EQUIPMENT. The machinery and equipment set forth on
Schedule 1.1.1 hereto.
1.1.2 INVENTORY. The Inventory of the Seller is as listed on Schedule 1.1.2
(net of any reserves for obsolescence) saleable to customers in the
normal course of the Business, and not obsolete, deteriorated or
unusable under standard quality control procedures (the "Inventory").
The inventory located at Seller's facilities in Marburg and Dortmund
shall be transferred at Closing to the Purchaser pursuant to the terms
of Section 2.4 below. For inventory held at other locations, Seller may
sell such inventory until January 31, 2000, except that Seller and/ or
its Affiliates may retain inventory in jurisdictions where Seller
and/or its Affiliates will continue to act as distributors for the
Business after the Closing.
1.1.3 SELLER'S CONTRACT RIGHTS AND OBLIGATIONS. All sales orders, purchase
orders (except for those purchase orders issued to Seller by Purchaser
or Purchaser's Affiliates), contracts, distribution agreements,
development agreements, consulting agreements, OEM license agreements,
or any other agreements, and the like (subject to the appropriate
consent) which are necessary for the operation of the Business as now
being conducted, including those set forth on Schedule 3.1.8, (the
"Contracts").
1.1.4 BUSINESS RECORDS. All business records pertinent to the Business as
conducted as of the Closing, confidential or otherwise (subject to
third party confidentiality restrictions or legally required consents),
to the extent such records are necessary for the operation of the
Business, including laboratory notebooks and prosecution files if
relating to the Proprietary Rights which are to be assigned to the
Purchaser pursuant to the Proprietary Rights Agreement, tax records (to
the extent they relate specifically to the Business), market
information, sales aids, customer and supplier lists, manufacturing
procedures and records, protocols and the like. The Seller hereby
reserves the right to retain a copy of such records for its use subject
to the confidentiality provision of Section XII hereof and the
non-competition provision of Section 7.1.2 hereof.
1.1.5 PROPRIETARY RIGHTS. The proprietary rights transferred or licensed to
Purchaser or an Affiliate of Purchaser pursuant to the Proprietary
Rights Agreement entered into by and between Quidel Corporation and the
Seller as of the Closing Date.
1.1.6 PRODUCT REGISTRATIONS. All product registrations held by Seller or its
Affiliates including all 510k's or similar registrations set forth on
Schedule 1.1.6.
1.2 EXCLUDED ASSETS. Notwithstanding anything expressed or implied to the
contrary in this Agreement, the Purchased Assets shall not include any
assets of the Seller or its Affiliates whatsoever other than the
specific assets expressly identified in Section 1.1. Without limiting
the generality of the foregoing, the term "Excluded Assets" as used in
this Agreement shall include, without limitation, cash, accounts
receivable, notes receivable, prepaid taxes, expenses or allowances for
the post-closing period, interests in insurance policies, real
properties, facilities, Rapimat or similar diagnostic instruments,
computer systems (including voice mail, freight related systems,
software and order entry systems), chose of action, and the use of the
Dade Behring or Syva names, except as expressly set forth in the
Proprietary Rights Agreement.
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1.3 ASSUMPTION OF CERTAIN LIABILITIES. On and subject to the terms and
conditions set forth herein, the Purchaser hereby assumes and is liable
for the following obligations of the Seller (the "Assumed
Liabilities"):
1.3.1 POST-CLOSING PERFORMANCE OBLIGATIONS. All liabilities and obligations
of the Seller to the extent they arise out of or relate to the
ownership, use or operation of the Business or the Purchased Assets
after the Closing, including, but not limited to, all liabilities and
obligations under the Contracts which either arise after the Closing or
which are to be performed after the Closing, including but not limited
to obligations to sell products and to develop products.
1.3.2 INFRINGEMENT CLAIMS. All liabilities and obligations which arise out of
or relate to any claim or action (regardless of when such claim or
action arises) arising out of the operation or ownership of the
Business or the Purchased Assets after the Closing including any and
all claims alleging, with respect to the Proprietary Rights to be
transferred pursuant to the Proprietary Rights Agreement, infringement,
misappropriation or other conflict with the Proprietary Rights of any
third party.
1.4 EXCLUDED LIABILITIES. Other than as set forth in Section 1.3 above, the
Purchaser shall not assume or become liable for (and, thus "Assumed
Liabilities" shall not include) any other liabilities of the Seller
(the "Excluded Liabilities), including ,without limitation, any
liability relating to a license and manufacturing agreement between
Seller and Jugoremedija, a Yugoslav company.
ARTICLE II
THE PURCHASE PRICE
2.1 THE PURCHASE PRICE. For purposes of this Agreement, in addition to
Purchaser's assumption of liabilities as provided in Section 1.3, the
"Purchase Price" for the Purchased Assets, for the covenant not to
compete provided in Section 7.1.2, and for all other rights and
obligations contemplated hereunder shall be equal to United States
Dollars Five Million Seven Hundred Fifty Thousand (USD 5,750,000)
payable as follows:
2.1.1 An initial cash payment of United States Dollars Five Million (USD
5,000,000) payable in immediately available funds at the Closing.
2.1.2 United States Dollars Five Hundred Thousand (USD 500,000) to be paid in
immediately available funds twelve (12) months after the Closing;
provided, however, that in respect of such funds Purchaser shall
deliver to Seller at Closing a bank guarantee from a major United
States Financial Institution payable to Seller upon the one year
anniversary of the Closing Date for the full amount thereof. The terms
of such guarantee shall be reasonably satisfactory to Seller and shall
include, without limitation, that in the event of a default in payment
of such amount, Seller shall have the option to exercise the guarantee
without being obligated to first exhaust all remedies against
Purchaser.
2.1.3 United States Dollars Two Hundred Fifty Thousand (USD 250,000) to be
paid in immediately available funds twenty-four (24) months after the
Closing; provided, however, that such funds shall only be paid to the
Seller upon successful completion of the milestones defined in the
Transitional Manufacturing and Transfer Assistance Agreement ("TMA");
2.2 ADDITIONAL PAYMENT. In addition to the payments set forth in Section
2.1 above, Purchaser shall pay to Seller an amount equal to three
percent (3%) of the combined annual global sales of the products of
Business for a period of five (5) years from Closing, and up to
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a maximum of United States Dollars Three Million (USD 3,000,000). The
first two (2) years of royalties shall only be paid to the Seller upon
successful completion of the milestones defined in the TMA. For
purposes of calculating annual sales each such annual period shall
begin on January 1 and conclude on the following December 31 (except of
the first period, which shall begin on December 1, 1999 and end on
December 31, 2000). All annual payments shall be due and payable on or
before the following February 28. Simultaneous with the annual payment,
Purchaser shall provide Seller with a report, to be prepared at
Purchaser's own expense, detailing sales within such period; provided,
however, that the names of customers need not be listed in such
reports. If the Parties disagree about the contents of such report,
they shall use good faith efforts to resolve such disagreement,
including if necessary the appointment of an independent auditor from
one of the big five accounting firms that is not providing services to
either party at the time of such appointment; failing which, such
dispute shall be subject to arbitration as provided in this Agreement.
2.3 CLOSING.
(a) The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place on November 30,
1999, or at such other time as may be mutually agreed upon by
the Parties (the "Closing Date").
(b) The Seller and the Purchaser agree that title in all tangible
Purchased Assets shall be conveyed to the Purchaser with the
effect as of Closing. At Closing, Seller shall execute and
deliver to Purchaser the deeds, patents, trademarks and other
assignments and such other instruments of transfer in agreed
form, as shall be effective to vest in Purchaser good title,
to all of the Purchased Assets. The Purchaser shall be granted
immediate possession in all tangible Purchased Assets through
delivery to the Purchaser at their respective locations on the
Closing. To the extent that tangible Purchased Assets are not
in the immediate possession of the Seller, the granting of
possession is substituted by the assignment of the claim for
conversion against the immediate possessor. To the extent that
the Purchaser does not gain possession of individual tangible
Purchased Assets because of their delivery is not possible or
expedient for practical reasons, the granting of possession
shall be substituted by the agreement between Seller and
Purchaser that these Purchased Assets shall be held by the
Seller for the benefit of the Purchaser as of the Closing and
the possession will be granted to the Purchaser as soon as
practicably possible.
(c) To the extent tangible Purchased Assets are subject to rights
of retention or have been transferred to third parties for
security purposes, Seller shall, irrespective of possible
claims of the Purchaser for a breach of warranty arising
therefrom, assign to the Purchaser its respective expectant
rights (ANWARTSCHAFTSRECHTE) and all claims and rights it has
relating to these Purchased Assets including all rights of
return or repossession.
(d) If any of the conditions precedent to Purchaser's obligation
to close this transaction set forth in Section 8.2 below are
not satisfied on the scheduled Closing Date and the Purchaser
does not wish to waive such condition(s), Purchaser may in its
sole discretion, upon notice to Seller at least twenty four
(24) hours prior to the Closing Date, reschedule the Closing
for another date (which must be a business day) not later than
three (3) days after the conditions precedent have been waived
or satisfied. All proceedings to take place at the Closing
shall be deemed to take place simultaneously, and delivery
shall not be considered to have been made until all such
proceedings have been completed. The Closing shall be deemed
to have taken place at 11:59 p.m., C.E.T. on the Closing Date.
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2.4 INVENTORY ADJUSTMENT. On the Closing Date, there will be an inventory
adjustment based upon the difference between the book value of the
Average Inventory of Seller located in Marburg and Dortmund, Germany
and the book value of the Closing Date Inventory conducted by Purchaser
at Seller's facilities in Marburg and Dortmund, Germany.
2.4.1 AVERAGE INVENTORY. The term "Average Inventory" shall mean the six (6)
month average month end inventory balance of Seller of Inventory
located in Marburg and Dortmund, Germany for the months ending March
through August 1999.
2.4.2 CLOSING DATE INVENTORY. The term "Closing Date Inventory" shall mean
the inventory located at Seller's facilities in Marburg and Dortmund,
Germany on the Closing Date.
2.4.3 DETERMINATION. The inventory adjustment shall be determined on the
Closing Date. The costs and expenses associated with determining the
inventory adjustment shall be borne by Purchaser. If the book value of
the Closing Date Inventory exceeds the book value of the Average
Inventory, then Purchaser shall pay to Seller an amount equal to the
difference between the book value of the Closing Date Inventory and the
book value of the Average Inventory. If the book value of the Average
Inventory is greater than the book value of the Closing Date Inventory,
then Seller shall pay to Purchaser the difference between such values.
2.4.4 PAYMENTS. All payments made in accordance with this Section 2.4 shall
be paid by a wire transfer of available funds in United States currency
made to an account designated by the Party to receive such payment. Any
amount not in dispute under this Section shall be considered due and
payable immediately upon receipt of notice of said amounts being due
and such payment shall be made within five (5) business days. Any
amount in dispute shall be due and payable within ten (10) days after
the resolution of the dispute pursuant to the terms of this Agreement.
Each such payment due to Seller or Purchaser shall include interest on
the amount paid at ten percent (10%) (compounded annually) from the
Closing until the date of payment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents and
warrants to the Purchaser as of the Closing, except to the extent a
representation and warranty relates to a specified date, as follows:
3.1.1 CORPORATE STATUS. The Seller is a corporation duly organized, validly
existing and in good standing (as such concept is defined in the
relevant jurisdiction(s)) under the laws of Germany, with all requisite
corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted.
3.1.2 AUTHORIZATION. The Seller has the corporate power and authority to
execute and deliver the Transactional Documents to which it is a party,
to perform fully its obligations hereunder and thereunder, and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery by the Seller of the Transactional Documents to
which it is a party, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all
requisite corporate action of the Seller. The Seller has duly executed
and delivered this Agreement, and each of the other Transactional
Documents to which it is a party. Assuming this Agreement and the other
Transactional Documents constitute valid and binding obligations of
Purchaser, each of this Agreement and the other Transactional Documents
is a legal, valid and binding obligation of Seller, enforceable against
it in accordance with its respective terms, except as such
enforceability may be limited by (a) applicable insolvency, bankruptcy,
reorganization, moratorium or other similar
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laws affecting creditors' rights generally, or (b) applicable equitable
principles (whether considered in a proceeding at law or in equity).
3.1.3 NO CONFLICTS. The execution, delivery and performance by the Seller of
this Agreement and the other Transactional Documents and the
consummation of the transactions contemplated hereby and thereby will
not (a) violate or conflict with any provision of the Certificate of
Incorporation or By-laws (or equivalent organizational documents) of
the Seller, each as amended to date; or (b) constitute a violation of,
or be in conflict with, or constitute or create a default with or
without the giving of notice or the lapse of time or both with respect
to any property of the Seller (including without limitation any of the
Purchased Assets), other than a violation, conflict or default which
would not have a Material Adverse Effect, pursuant to (i) any contract,
agreement or instrument to which the Seller is a party or by which it
or any of its properties (including without limitation any of the
Purchased Assets) is bound or to which it or any of such properties is
subject, or (ii) to Seller's knowledge, any Applicable Law.
3.1.4 LITIGATION, ETC. Except as set forth on Schedule 3.1.4, no action,
suit, proceeding or investigation is pending or to the knowledge of
Seller threatened, relating to or affecting any of the Purchased Assets
or which questions the validity of the Transactional Documents or
challenges any of the transactions contemplated hereby or thereby
except to the extent such action, suit, proceeding or investigation
would result in a loss or liability to the Business of less than United
States Dollars Ten Thousand (USD 10,000), said sum to be assessed in
good faith by the Seller.
3.1.5 PURCHASED ASSETS CONDITION. Except as set forth in Schedule 3.1.5, the
Purchased Assets are all the assets that are necessary to conduct the
Business as currently conducted.
3.1.6 COMPLIANCE WITH LAWS: GOVERNMENTAL APPROVALS. Except as disclosed in
Schedule 3.1.6 attached hereto, since June 1, 1998, the Seller has not
received any notice with respect to the Business alleging any violation
of Applicable Law, except for such violation which would not result in
a penalty greater than United States Dollars Ten Thousand (USD 10,000),
but including those, which could have a Material Adverse Effect, such
sum to be assessed in good faith by the Seller. The Seller holds all
Governmental Approvals necessary for the conduct of the Business, as
now conducted, except where the failure to obtain such Governmental
Approvals would not have a Material Adverse Effect. Except as disclosed
in Schedule 3.1.6, all such Governmental Approvals are in full force
and effect, and to Seller's knowledge their continuing effectiveness
will not be materially adversely affected by any of the transactions
contemplated hereby, and the Business is in compliance in all material
respects with each such Governmental Approval, except where such
non-compliance would not have a Material Adverse Effect.
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3.1.7 ASSETS. Except as set forth on Schedule 3.1.7, the Seller is the legal
and beneficial owner of, and has good and valid record title, to all of
the Purchased Assets, and has the full right to sell, convey, transfer,
assign, license and deliver the Purchased Assets, without the need to
obtain the consent or approval of any third party. Except as set forth
on Schedule 3.1.7, all of the Purchased Assets are free and clear of
any security interests, liens, claims, charges, options, mortgages,
debts, leases (or subleases), conditional sales agreements, title
retention agreements, encumbrances of any kind, material defects as to
title or restrictions against the transfer or assignment thereof
(collectively, "Encumbrances").
3.1.8 CONTRACTS. Except for (i) this Agreement, the other Transactional
Documents and the contracts set forth on the other Schedules to this
Agreement, and (ii) any purchase order for goods or services in the
ordinary course of business, Schedule 3.1.8 attached hereto lists all
of the material written contracts ("Contracts") to which the Seller is
a party as of the date of this Agreement. For the avoidance of doubt,
the Contracts relating to proprietary rights are listed in the
respective schedules of the Proprietary Rights Agreement, and the
representations and warranties in the Proprietary Rights Agreement
shall apply to such proprietary rights Contracts. The Seller has
delivered to the Purchaser true, correct and complete copies of all
such Contracts, together with all modifications thereof and is not in
breach of any of the provisions of any such Contract, nor, to the
knowledge of Seller, is any other party to any such Contract in default
thereunder. Except as set forth on Schedule 3.1.8, the Seller has not
received notice since June 1, 1998 of any default under any of the
foregoing Contracts that has not been cured. The Seller has in all
material respects performed all obligations required to be performed by
it to date under each such Contract.
3.1.9 BROKERS, FINDERS, ETC. All negotiations relating to this Agreement and
the transactions contemplated hereby have been carried on without the
participation of any Person acting on behalf of the Seller or Purchaser
in such manner as to give rise to any valid claim against the Purchaser
or Seller for any brokerage or finder's commission, fee or similar
compensation.
3.1.10 MACHINERY AND EQUIPMENT; INSTRUMENTS. All machinery and equipment
listed on Schedule 1.1.1 is in good operating condition and repair,
subject to normal wear and tear.
3.1.11 ORDINARY COURSE. During the past three months from the date hereof, the
amount of products of the Business that the Seller has transferred to
its distributors has been consistent with the Seller's past practice
and policies and has been in the ordinary course of business.
3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Seller as of the date hereof and, except
to the extent a representation and warranty relates to a specified
date, as of the Closing as follows:
3.2.1 CORPORATE STATUS. Quidel Deutschland GmbH and Quidel Corporation are
companies duly organized under the laws of Germany and Delaware
respectively, validly existing and in good standing (as such concept is
defined in the relevant jurisdiction(s)) under the laws of all
jurisdictions in which each of them conducts business, and each of them
has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being
conducted.
3.2.2 AUTHORIZATION. The Purchaser has the power and authority to execute and
deliver the Transactional Documents to which it is a party, to perform
fully its obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery by the Purchaser of the Transactional Documents to which it is
a party, and the consummation of the transactions contemplated hereby
and thereby, have been duly authorized by all requisite corporate
action of the Purchaser. The Purchaser has
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duly executed and delivered this Agreement and each of the other
Transactional Documents to which it is a party.
This Agreement and the other Transactional Documents constitute valid
and binding obligations of Seller, each of this Agreement and the other
Transactional Documents is a legal, valid and binding obligation of the
Purchaser, enforceable against it in accordance with its respective
terms, except as such enforceability may be limited by (a) applicable
insolvency, bankruptcy, reorganization, moratorium or other similar
laws affecting creditors' rights generally, or (b) applicable equitable
principles (whether considered in a proceeding at law or in equity).
3.2.3 NO CONFLICTS. The execution, delivery and performance by the Purchaser
of the Transaction Documents, and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict with or
result in a violation of or a default under (with or without the giving
of notice or the lapse of time or both) (a) any Applicable Law
applicable to the Purchaser, (b) the Certificate of Incorporation or
By-laws (or equivalent organizational documents) of the Purchaser, or
(c) any material contract, agreement or other instrument to which the
Purchaser is a party or by which the Purchaser is bound.
3.2.4 LITIGATION. There is no action, claim, suit, judgement, injunction,
order or decree pending, or to the Purchaser's Knowledge threatened,
against the Purchaser that relates to the transactions contemplated by
this Agreement, nor are there agreements or envisaged agreements which
are capable of impacting the Purchaser's ability to fulfil its
obligations under the present Agreement. In the event that any such
agreement comes into effect, or is intended to come into effect
following the Closing, the Purchaser shall inform the Seller without
delay of the same.
3.2.5 BROKERS, FINDERS, ETC. All negotiations relating to this Agreement and
the transactions contemplated hereby have been carried on without the
participation of any Person acting on behalf of the Purchaser in such
manner as to give rise to any valid claim against the Seller for any
brokerage or finder's commission, fee or similar compensation.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 ADDITIONAL AGREEMENTS. Simultaneously herewith, Seller and Purchaser
shall enter into that certain Transitional Manufacturing and Transfer
Assistance Agreement, that certain Lease Agreement with respect to the
manufacturing facility in Marburg, and that certain Proprietary Rights
Agreement. The Distribution Agreements for the agreed upon territories
will be negotiated in good faith by both parties and consummated no
later than sixty (60) days following the Closing Date, provided, and
the parties hereby acknowledge that the terms of the distribution
agreement attached hereto as Exhibit C will be substantially the terms
incorporated into the final distribution agreements for the agreed upon
territories, provided however for the territories of Japan and Brazil
the parties agree that they will independently negotiate the specific
issues of transfer price, term of the agreement, margins and quotas
(and in Japan, the issues of labeling and minimum purchase orders).
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ARTICLE V
TAXES
5.1 ALLOCATION OF PURCHASE PRICE. The Purchaser and the Seller shall
allocate the Purchase Price (including the amount of liabilities
assumed by the Purchaser, as determined at the Closing) among the
Purchased Assets as set forth on Schedule 5.1 attached hereto, and such
Schedule shall be used by the Parties in preparing all Tax Returns. The
Purchaser and the Seller shall each file their respective tax returns
in accordance with this Section 5.1, with its federal Income Tax Return
for its taxable period that includes the Closing. All allocations made
pursuant to this Section 5.1 shall be binding upon the Parties and upon
each of their successors and assigns, and the Parties shall report the
transactions contemplated by this Agreement in accordance with such
allocations.
5.2 SALES AND TRANSFER TAXES. All transfer, documentary, sales, use, stamp,
registration and other Taxes and fees, including any penalties and
interest thereon (collectively, "Transfer Taxes") incurred in
connection with this Agreement shall be split equally between Seller
and Purchaser. However, Purchaser shall be solely responsible for value
added taxes. Purchaser shall pay the Transfer Taxes when due and will
file all necessary Tax Returns and other documentation with respect to
such Transfer Taxes and, if required, by applicable law, the Seller
will join in the execution of any such Tax Returns and other
documentation. Seller shall pay to Purchaser Seller's share of the
transfer taxes no later than ten (10) days prior to the date when such
Transfer Taxes are due to be paid by Purchaser. Purchaser must provide
documents evidencing the amount to be paid to the tax authorities and
the date when such payment is due, all in a manner that is reasonably
acceptable to Seller.
5.3 CO-OPERATION ON TAX MATTERS. The Purchaser and the Seller shall
co-operate fully, as and to the extent reasonably requested by the
other Party, in connection with any audit, litigation or other
proceeding with respect to Taxes relating to the Business. Such
co-operation shall include the retention and (upon the other Party's
request) the provision of records and information which are reasonably
relevant to any such audit, litigation or other proceeding and making
employees available on a mutually convenient basis to provide
additional information and explanation of any material provided
hereunder. The Purchaser and the Seller agree (i) to retain all books
and records with respect to Tax matters relating to the Business
pertinent to the Seller relating to any taxable period beginning before
the Closing until the expiration of the statute of limitations (and, to
the extent notified by the Purchaser or the Seller, any extensions
thereof) of the respective taxable periods, and to abide by all record
retention agreements entered into with any taxing authority, and (ii)
to give the other Party reasonable written notice prior to
transferring, destroying or discarding any such books and records and,
subject to respective confidentiality requirements of the Parties, if
the other Party desires to take possession of such books and records
such Party may make copies of such books and records.
ARTICLE VI
COVENANTS PENDING THE CLOSING
During the period from the date of this Agreement until the Closing Date
or the earlier termination of this Agreement, Seller agrees (except as
expressly contemplated by this Agreement or to the extent that Purchaser
shall otherwise consent in writing) as follows:
6.1 ORDINARY COURSE. Seller shall carry on the Business in the usual, regular
and ordinary course, in substantially the same manner as heretofore
conducted, and use all reasonable efforts consistent with past practice
and policies to preserve its present Business operations, keep available
the services of the Business' key employees (other than employees
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terminated for cause) and preserve its relationships with customers,
suppliers, distributors and others having business dealings with it
relating to the Business.
6.2 NO SOLICITATION. Seller shall not, directly or indirectly, through any
employee, agent or representative (including without limitation
investment bankers, attorneys, accountants and consultants), or
otherwise:
(i) solicit, initiate or further the submission of proposals or
offers from, or enter into any agreement with, any firm,
corporation, partnership, association, group or other person
or entity, individually or collectively (including without
limitation any managers, employees or independent contractors
of the Seller or any of its Affiliates), other than Purchaser
(a "Third Party"), relating to any acquisition or purchase of
all or a material portion of the Purchased Assets;
(ii) participate in any discussions or negotiations regarding the
acquisition or purchase of all or a material portion of the
Purchased Assets, or furnish to any Third Party any confidential
information with respect thereto; or
(iii) otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any Third Party
to do or seek to do any of the foregoing with the respect to the
Purchase Assets.
Seller shall promptly notify Purchaser in writing if any such proposal or
offer, or any inquiry or contact with any Third Party with respect
thereto, is made, and shall in any such notice, set forth in reasonable
detail the identity of the Third Party, the terms and conditions of any
proposal and any other information requested of them by the Third Party
or in connection therewith.
Seller shall immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any Third Party conducted
prior to the date of this Agreement with respect to any of the foregoing.
6.3 APPROVALS AND CONSENTS. Unless Purchaser is required by law to be
responsible for any of the following, Seller will obtain all necessary
governmental and third party approvals and consents required in order to
authorize and approve this Agreement and the other Transactional
Documents, to consummate the sale of the Purchased Assets to Purchaser
pursuant to this Agreement, and to transfer and assign all of the
Contracts set forth on Schedule 3.1.8.. Purchaser shall provide
reasonable assistance to the Seller in the Seller's effort to obtain such
consents.
ARTICLE VII
OTHER COVENANTS AND AGREEMENTS
7.1 COVENANTS AND AGREEMENTS OF THE SELLER
7.1.1 FURTHER ASSURANCES. After the Closing, the Seller shall from time to
time execute and deliver such additional instruments, documents,
conveyances or assurances and take such other actions as shall be
necessary, or as may be reasonably requested by the Purchaser, to
confirm and assure the transfer of the rights and obligations provided
for in this Agreement and render effective the consummation of the
transactions contemplated hereby and thereby.
7.1.2 NON-COMPETITION. The Seller hereby expressly covenants and agrees that
for a period of five (5) years from and after the Closing, the Seller
will not directly or indirectly manufacture, distribute, or sell any
urine test strips in the field of human in vitro urine diagnostics by
the determination of Bilirubin, Urobilinogen, Ketones, Ascorbic acid,
Glucose, Albumin (Protein), Blood, Ph-value, Nitrite, Leucocytes,
Specific Gravity and Amylease in urine, provided however, that Seller
may manufacture, distribute and sell, any
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urine test strips to be used in drug abuse testing, therapeutic drug
monitoring (including immunosuppressive drug monitoring), adulteration
testing, cardiac testing, hormone testing, and microbiological testing.
Notwithstanding the foregoing and subject to the following sentence,
Seller may acquire or be acquired by (including, without limitation,
any purchase or sale of stock or assets, merger, joint venture or
alliance) a business that otherwise would violate the foregoing
restriction and thereafter develop such business, as long as no more
than four percent (4%) of the annual income of such business (measured
as of the date of such transaction) is in businesses which violate the
foregoing restriction. Notwithstanding the foregoing, the following
shall apply:
a) The Seller may acquire or be acquired by Xxxxx XX, Xxxxx XX,
and/ or their successor companies;
b) the Seller may acquire or be acquired by a business which violates
any of the restrictions stated above so long as the Seller shall
commence procedures to divest itself of the competing manufacturing
operations of such business within three (3) months after such
acquisition and complete such divestiture within (2) years after
such acquisition.
c) The non competition restrictions on Seller included in this section
7.1.2 shall not apply in Brazil and/ or Japan should either of the
distributorship agreements to be negotiated between Purchaser and
Seller's affiliates in Brazil and Japan, be terminated by Purchaser
for reasons other than cause, as defined under such distributorship
agreements.
d) If it is ever held that the restrictions placed on Seller by this
Section 7.1.2 are too onerous and are not necessary for the
protection of Purchaser, the Parties agree that any court of
competent jurisdiction shall be requested by both Parties to reduce
the duration or scope hereof, or delete specific words or phrases,
such that in its reduced form such provision will then be
enforceable and will be enforced.
7.1.3 PRE-CLOSING ACCESS TO INFORMATION. Between the date of this Agreement
and the Closing Date, at Purchaser's expense and risk, the Seller shall
(i) give Purchaser and its authorized representatives reasonable access
during normal business hours to all plants, offices, warehouses and
other facilities used in the Business and to all contracts, internal
reports, data processing files and records, federal, state, local and
foreign tax returns and records, commitments, books, records and
affairs of the Seller directly relating to the Business, whether
located on the premises of the office facilities of the Seller or at
another location, (ii) permit Purchaser to make such reasonable
inspections as it may require, (iii) cause its officers to furnish
Purchaser such financial, operating, technical and product data and
other information with respect to the Business as Purchaser from time
to time may reasonably request, including without limitation financial
statements and schedules, and (iv) assist and cooperate with Purchaser
in the development of integration and transition plans for
implementation by Purchaser following the Closing Date; provided,
however, that no investigation pursuant to this Section 7.1.3 shall
affect or be deemed to modify any representation or warranty made by
the Seller herein.
Seller shall give Purchaser prompt notice of any material breach of any
of its covenants hereunder or the occurrence of any event that is
reasonably likely to cause any of its representations and warranties
hereunder to become incomplete or untrue in any material respect.
7.2 COVENANTS AND AGREEMENTS OF THE PURCHASER.
7.2.1 FURTHER ASSURANCES. After the Closing, the Purchaser shall from time to
time execute and deliver such additional instruments, documents,
conveyances or assurances and take such
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other actions as shall be necessary, or otherwise reasonably requested
by the Seller, to confirm and assure the obligations of the Purchaser
provided for in this Agreement and render effective the consummation of
the transactions contemplated hereby and thereby.
7.2.2 POST-CLOSING ACCESS AND INFORMATION
(a) After the Closing, the Purchaser will (and will cause its
accountants, counsel, consultants, employees and agents to)
give the Seller, and its accountants, counsel, consultants,
employees and agents, full access, during normal business
hours and upon reasonable notice, to all employees, documents,
records, work papers and information with respect to all of
such Person's properties, assets, books, contracts,
commitments, reports and records relating specifically to the
Business or the Purchased Assets, as the Seller may from time
to time reasonably request in order to prepare the Seller's
income and other tax returns. In addition, the Purchaser shall
permit the Seller to make copies at its own expense of any of
the above-mentioned documents, records and information for
such purposes.
(b) The Purchaser will retain all books and records relating to the
Business or any of Seller's predecessors in interest for at least
seven (7) years or for such longer period as may be required by
applicable law.
(c) In the event that, in connection with the consummation of the
transactions contemplated hereby, the Purchaser obtains, after the
Closing, any documents, records or information that, instead of
relating to the Purchased Assets, relate to the Seller or any of
its Affiliates or any of their respective operations or
businesses, the Purchaser shall (i) promptly notify the Seller of
that fact, (ii) promptly upon Seller's request return such
document, record or information to the Seller, (iii) not use any
such document, record or information in any way, and (iv) keep the
content of such document, record or information confidential in
all respects.
(d) In the event that the Seller finds, after the Closing, any
documents, records or information that should have been provided
to the Purchaser pursuant to Section 1.1.4 hereof, the Seller
shall (i) promptly notify the Purchaser of that fact, and (ii)
promptly upon Purchaser's request provide such document, record or
information to the Purchaser; provided, however, that the Seller
may retain a copy of such document, record or information for its
use subject to the confidentiality provision of Section XII hereof
and the non-competition provision of Section 7.1.2 hereof.
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7.3 EXPENSES; BROKERS.
7.3.1 EXPENSES. Except as otherwise provided herein, the Seller, on the one
hand, and the Purchaser, on the other hand, shall bear their respective
expenses, costs and fees (including attorneys' and accountants' fees)
in connection with the transaction contemplated hereby, including the
preparation, execution and delivery of this Agreement and the other
Transactional Documents and compliance herewith (the "Transaction
Expenses"), whether or not the transactions contemplated hereby are
consummated.
7.3.2 BROKERS. Without limiting the generality of Section 7.3.1 above, each
party shall indemnify the other Party against any and all liability and
claims for any brokers' or finders' fees arising with respect to
brokers or finders retained or engaged by such Party.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES
8.1 CONDITIONS TO THE OBLIGATIONS OF PURCHASER AND SELLER. The respective
obligations of Purchaser and Seller set forth in this Agreement shall
be subject to the satisfaction on or prior to the Closing Date of the
following conditions, unless waived by each such Party:
(a) LEGAL ACTION. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing
the consummation of the transactions contemplated by this
Agreement shall have been issued by any federal, state or
foreign court or other governmental or regulatory authority
and remain in effect, and no litigation seeking the issuance
of such an order or injunction, or seeking substantial damages
against Purchaser or the Seller if the transactions
contemplated by this Agreement are consummated, shall be
pending which, in the good faith judgment of the Seller and
Purchaser, have a reasonable probability of resulting in such
order, injunction or substantial damages. In the event any
such order or injunction shall have been issued, each Party
agrees to use its reasonable efforts to have any such
injunction lifted.
(b) STATUTES. No federal, state, local or foreign statute, rule or
regulation shall have been enacted which would make the
consummation of the transactions contemplated by this
Agreement illegal.
8.2 FURTHER CONDITIONS TO THE OBLIGATIONS OF PURCHASER. The obligations of
Purchaser set forth in this Agreement are subject to the satisfaction
on or prior to the Closing Date of the following conditions, unless
waived by Purchaser:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Seller set forth in this Agreement shall be
true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though made at
and as of the Closing Date; and Purchaser shall have received
a certificate (the "Compliance Certificate") dated the Closing
Date to the foregoing effect signed by an authorized officer
of the Seller.
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(b) PERFORMANCE OF OBLIGATIONS OF OTHER PARTIES. Seller shall have
satisfied all of the conditions set forth in this Section 8.2
and performed in all material respects all obligations
required to be performed by it under this Agreement prior to
the Closing Date, and the Compliance Certificate shall include
a statement to such effect.
(c) NO LITIGATION. Since the date hereof, there shall not have
been instituted and be continuing or threatened against the
Seller, any claim, action or proceeding related to the
Business or the Purchased Assets which, if adversely
determined, could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(d) CONSENTS AND APPROVALS. All waivers, licenses, agreements
permits, consents, approvals or authorizations of third
parties or governmental agencies or any modifications or
amendments to existing agreements with third parties required
to be obtained by Seller or Purchaser shall have been obtained
and shall be in full force and effect and without conditions
or limitations which unreasonably restrict the ability of the
Parties hereto to carry out the transactions contemplated
hereby and Purchaser shall have been furnished with
appropriate evidence, reasonably satisfactory to it and its
counsel, of the granting of same.
(e) DILIGENCE REVIEW. Purchaser shall be satisfied, in its sole
discretion, with the result of its due diligence investigation
of the Business, including Purchaser's review of the
financial, regulatory and operational aspects of the Business.
(f) EXECUTION OF RELATED AGREEMENTS. Seller shall have executed
the Proprietary Rights Agreement with Purchaser or an
Affiliate of Purchaser substantially in the form attached
hereto as Exhibit A and the Transitional Manufacturing
Agreement with Purchaser substantially in the form attached
hereto as Exhibit B. In addition, Seller shall execute the
Lease Agreement with Purchaser substantially in the form
attached hereto as Exhibit D.
8.3 FURTHER CONDITIONS TO THE OBLIGATIONS OF SELLER. The obligations of
Seller set forth in this Agreement are subject to the satisfaction on
or prior to the Closing Date of the following conditions, unless waived
by Seller:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser set forth in this Agreement shall be
true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though made at
and as of the Closing Date, except as otherwise contemplated
by this Agreement, and Sellers shall have received a
certificate dated the Closing Date signed by an authorized
officers of Purchaser to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF OTHER PARTIES. Purchaser shall
have satisfied all of the conditions set forth in this Section
8.3 and performed in all material respects all obligations
required to be performed by it under this Agreement prior to
the Closing Date, and Seller shall have received a certificate
signed by an authorized officer of Purchaser.
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(c) EXECUTION OF RELATED AGREEMENTS. Purchaser or an Affiliate of
Purchaser shall have executed the Proprietary Rights Agreement
with Seller substantially in the form attached hereto as
Exhibit A, the Transitional Manufacturing Agreement with
Seller substantially in the form attached hereto as Exhibit B,
and the Distribution Agreements with Seller substantially in
the form attached hereto as Exhibit C for the mutually agreed
upon territories.
ARTICLE IX
TERMINATION
9.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing Date:
(a) BY MUTUAL CONSENT. By mutual consent of Purchaser and Seller;
(b) BY PURCHASER OR SELLER. By either Purchaser or Seller (i) if
the transactions contemplated by this Agreement shall not have
been consummated on or before December 15, 1999; provided that
the failure of the transactions to be consummated by such date
is not caused by any breach of this Agreement or delay by the
Party seeking such termination; or (ii) if a court of
competent jurisdiction or other governmental or regulatory
authority shall have issued an order, decree or ruling or
taken any other action, in each case permanently restraining,
enjoining or otherwise prohibiting the consummation of the
transactions contemplated by this Agreement and such order,
decree, ruling or other action shall have become final and not
appealable; or (iii) if any statute, rule or regulation is
enacted, promulgated or deemed applicable to the transactions
contemplated by this Agreement by any competent governmental
or regulatory authority which makes the consummation of the
transactions illegal.
(c) BY PURCHASER. By Purchaser, if a material default under or a
material breach of this Agreement by the Seller shall have
occurred and be continuing ten (10) business days after receipt of
notice thereof from Purchaser.
(d) BY SELLER. By Seller, if a material default under or a material
breach of this Agreement by Purchaser shall have occurred and be
continuing ten (10) business days after receipt of notice thereof
from Seller.
Any action taken to terminate this Agreement pursuant to this Section
9.1 shall become effective when notice of such termination is delivered
by the terminating party to the other party in accordance with the
notice provision of this Agreement.
9.2 EFFECT OF TERMINATION. In the event of termination of this Agreement by
either Purchaser or Seller in accordance with Section 9.1 above, this
Agreement shall forthwith become void and there shall be no liability
or obligation on the part of the terminating party or its respective
officers, directors or employees, except that nothing set forth herein
shall relieve a Party hereto from liability for its willful breach of
this Agreement. Without limitation, if all of the conditions to a
Party's obligations set forth in Article VII have been satisfied or
waived by December 1, 1999, the failure of such Party to perform its
obligations on or before such date shall be deemed to be a willful
breach of this Agreement by such Party.
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ARTICLE X
SURVIVAL, INDEMNIFICATION AND RELATED MATTERS
10.1 SURVIVAL.
10.1.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in Article III of this Agreement and the other Transactional
Documents, and in any writing delivered in connection with this
Agreement, shall survive for a period of two (2) years after the
Closing. With respect to any breach of or inaccuracy of any
representation or warranty set forth in Article III or in any of the
other Transactional Documents, if a Party entitled to indemnification
files an Indemnification Claim Notice during the applicable survival
period specified above in this Section 10.1.1, then such representation
and warranty shall survive beyond the applicable survival period, to
the extent of such claim only, until such claim is resolved (whether or
not the amount of the damages or expenses resulting from such breach
has been finally determined at the time the notice is given) if, but
only if (i) in the case of a claim made by a Party by reason of a third
party claim, the written notice is accompanied by a copy of the written
notice, if any, of the third party claimant, and (ii) in the case of
any claim made by a Party other than by reason of a third party claim,
either (x) some damages or expenses shall have been incurred in good
faith at or prior to the date of such notice or (y) a reserve therefor
would be required to be provided on a balance sheet prepared in
accordance with GAAP.
10.1.2 COVENANTS. The covenants and agreements set forth in this Agreement and
the other Transactional Documents, and in any writing delivered in
connection with this Agreement, shall, unless otherwise specified
herein or therein, survive for a period of three (3) years after the
Closing, except as otherwise specified in Section 7.1.2. With respect
to any breach of any covenant or agreement set forth herein or in any
of the other Transactional Documents, if a Person entitled to
indemnification files an Indemnification Claim Notice during the
applicable survival period specified above in this Section 10.1.2, then
such covenant or agreement shall survive beyond the applicable survival
period, to the extent of such claim only, until such claim is resolved
(whether or not the amount of the damages or expenses resulting from
such breach has been finally determined at the time the notice is
given) if, but only if (i) in the case of a claim made by a Party by
reason of a third party claim, the written notice is accompanied by a
copy of the written notice, if any, of the third party claimant and
(ii) in the case of any claim made by a Party other than by reason of a
third party claim, either (x) some damages or expenses shall have been
incurred in good faith at or prior to the date of such notice or (y) a
reserve therefor would be required to be provided on a balance sheet
prepared in accordance with GAAP.
10.2 INDEMNIFICATION.
10.2.1 BY THE SELLER. After the Closing, and subject to the terms and
provisions of this Agreement, the Seller will indemnify the Purchaser
and Quidel Corporation, a California company, and hold them harmless
against any Loss which the Purchaser and Quidel Corporation may suffer,
sustain or become subject to as a result of:
(a) the failure of the Seller to perform any action or obligation of
Seller under the Transactional Documents (subject to any
limitations contained herein or therein);
(b) any liability of Purchaser for any Excluded Liabilities, including
any and all claims, judgements, taxes, fines, penalties,
assessments or governmental charges of any kind with respect to
the Purchased Assets or the Business for any period prior to the
Closing;
(c) any material breach of or inaccuracy of any representation,
warranty or covenant set forth herein or in any other
Transactional Documents (provided that the Seller is given
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an Indemnification Claim Notice during the applicable survival
period specified in Section 10.1 above); or
(d) failure of the Seller to obtain any Governmental Approval
necessary to be obtained in connection with the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby.
10.2.2 BY THE PURCHASER. After the Closing, and subject to the terms and
provisions of this Agreement, the Purchaser will indemnify the Seller
and hold it harmless against any Loss which the Seller may suffer,
sustain or become subject to as a result of:
(a) any failure by the Purchaser to perform any action or obligation
of Purchaser to be performed under the Transactional Documents
(subject to the obligations contained herein or therein);
(b) any material breach of or inaccuracy of any representation,
warranty or covenant set forth herein or in any of the other
Transactional Documents (provided that the Purchaser is given an
Indemnification Claim Notice during the applicable survival period
specified in Section 10.1 above);
(c) the failure of the Purchaser to obtain any Governmental Approval
necessary to be obtained in connection with the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby; or
(d) the ownership, use or operation of the Business or the Purchased
Assets after the Closing.
10.3 LIMITATIONS ON INDEMNIFICATION. An indemnified party shall not assert
any claim for indemnity pursuant to Section 10.2.of this Agreement with
respect to any matter for which indemnification is available under this
Agreement, until the aggregate amount of the Loss for which
indemnification is available hereunder exceeds United Sates Dollars one
hundred thousand (USD 100,000, the "Basket Amount"); PROVIDED, THAT
thereafter the indemnifying party shall indemnify the indemnified party
for the full amount of the Loss including the Basket Amount.
Notwithstanding anything in this Agreement to the contrary, the maximum
obligation of the Seller under this Article X shall not exceed fifty
percent (50%) of the Purchase Price in the aggregate.
10.4 INDEMNIFICATION PROCEDURES.
10.4.1 NOTICE OF CLAIM. Any Party making a claim for indemnification pursuant
to Section 10.2 above (an "Indemnified Party") must give the other
Party from whom indemnification is sought (an "Indemnifying Party")
written notice of such claim (an "Indemnification Claim Notice")
promptly after the Indemnified Party receives any written notice of any
action, lawsuit, proceeding, investigation or other claim (a
"Proceeding") against or involving the Indemnified Party by a
Government Authority or other third party or otherwise discovers the
facts giving rise to such claim for indemnification. The failure to
give such notice shall not relieve the Indemnifying Party of any of its
obligations under this Section 10 unless, and to the extent that, such
party is prejudiced by the failure to deliver prompt notice. Such
notice must contain a description of the claim and the nature and
amount of such Loss (to the extent that the nature and amount of such
Loss is known at such time).
10.4.2 CONTROL OF DEFENSE: CONDITIONS. The obligations of an Indemnifying
Party under this Section with respect to Losses arising from claims of
any third party that are subject to the indemnification provided in
Section 10.2 above shall be governed by and contingent upon the
following additional terms and conditions:
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(a) At its option, an Indemnifying Party may appoint as lead counsel
of such defense any legal counsel selected by the Indemnifying
Party (even if the provisions of Section 10.3 would or could limit
such Indemnifying Party's obligation), which legal counsel shall
be acceptable to the Indemnified Party (such acceptance not to be
unreasonably withheld or delayed).
(b) Notwithstanding Section 10.4.2(a) above, the Indemnified Party
will be entitled to participate in the defense of such claim and
to employ counsel of its choice for such purpose; provided, that
such employment shall be at the Indemnified Party's own expense
unless (1) the employment thereof has been specifically authorized
by the Indemnifying Party in writing or (2) the Indemnifying Party
has failed to assume the defense and employ counsel, in which case
the fees and expenses of the Indemnified Party's counsel shall be
paid by the Indemnifying Party.
(c) The Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to any
third party claim without the prior written consent of the
Indemnifying Party (not to be unreasonably withheld or
delayed). The Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement with respect to
any third party claim without the prior written consent of the
Indemnified Party (not to be unreasonably withheld or
delayed); provided, however, that no such consent of the
Indemnified Party shall be required if such judgment or
settlement contains no finding or admission of fault or guilt
on the part of the Indemnified Party and such judgment or
settlement contains an unconditional release of the
Indemnified Party with respect to the particular matter.
10.5 EXCLUSIVE REMEDY, WAIVER AND RELEASE. The indemnification provided
under this Section 10 for money damages and the equitable remedies
described in Section 7.1.2 (non-competition), shall be the Purchaser's
and the Seller's sole and exclusive remedies, each against the other,
with respect to matters arising under this Agreement of any kind or
nature, or relating to the ownership, operation, management, use or
control of the Business and the Purchased Assets.
10.6 ACKNOWLEDGEMENT BY THE PURCHASER.
WITHOUT LIMITING THE GENERALITY OF SECTION 10.1 OF THIS AGREEMENT,
THE PURCHASER ACKNOWLEDGES AND AGREES THAT IT IS NOT RELYING UPON
ANY REPRESENTATION OR WARRANTY OF THE SELLER (OTHER THAN AS SET
FORTH HEREIN OR IN THE OTHER TRANSACTIONAL DOCUMENTS) OR ANY
REPRESENTATION OR WARRANTY OF THE SELLER'S AFFILIATES, AGENTS OR
ADVISORS INCLUDING, WITHOUT LIMITATION, ANY INFORMATION,
PROJECTION OR PROMISE CONTAINED IN ANY INFORMATIONAL MEMORANDUM OR
OTHER MATERIAL DELIVERED BY OR ON BEHALF OF THE SELLER.
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10.7. ARBITRATION.
10.7.1 ARBITRATION. If a dispute arises between the parties relating to the
interpretation or performances of this Agreement or the grounds for the
termination thereof, representatives of the parties with
decision-making authority shall meet to attempt in good faith to
negotiate a resolution of the dispute prior to pursuing other available
remedies. If within thirty (30) days after such meeting the parties
have not succeeded in negotiating a resolution of the dispute, such
dispute shall be submitted to final and binding arbitration under the
then current Commercial Arbitration Rules of the International Chamber
of Commerce, by one (1) arbitrator. The place of arbitration shall be
Geneva, Switzerland. The English language shall be used in any and all
arbitral proceedings. The parties shall bear the costs of arbitration
equally and shall bear their own expenses, including professional fees.
The decision of the arbitrator shall be final and non-appealable and
may be enforced in any court of competent jurisdiction.
10.7.2. GOVERNING LAW. This Agreement and any dispute, including without
limitation any arbitration, arising from the performance or breach
hereof shall be governed by and construed and enforced in accordance
with the laws of Germany, without reference to conflicts of laws
principles.
ARTICLE XI
MISCELLANEOUS
11.1 SEVERABILITY. Should one or several provisions of this Agreement be or
become invalid, then the Parties hereto shall substitute such invalid
provisions by valid ones, which in their economic effect come so close
to the invalid provisions that it can be reasonably assumed that the
Parties would have concluded this Agreement with such new provisions.
In case such provisions cannot be found or agreed upon, the invalidity
of one or several provisions of this Agreement shall not affect the
validity of the Agreement as a whole, unless the invalid provisions are
of such essential importance for this Agreement that it is to be
reasonably assumed that the Parties would not have concluded this
Agreement without the invalid provisions.
11.2 NOTICES. All notices, requests, demands, waivers and other
communication required or permitted to be given under this Agreement
shall be given:
If to the Seller: If to the Purchaser:
Dade Behring Marburg GmbH Quidel Corporation
Xxxx xxx Xxxxxxx Xxxxxxx 00 10165 XxXxxxxx Xxxxx
00000 Xxxxxxx, Xxxxxxx Xxx Xxxxx 00000
Xxxxxxxxxx, XXX
or, in each case, at such other address as may be specified in writing
to the other Party.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (i) if by personal delivery on
the date after such delivery, (ii) if by certified or registered mail,
on the seventh business day after the mailing thereof, (iii) if by
next-day or overnight mail or delivery, on the day delivered provided
that an additional copy is also sent by telecopy (with confirmation of
receipt).
11.3 HEADINGS. The headings used in this Agreement are for the purpose of
reference only and will not affect the meaning or interpretation of any
provision of this Agreement.
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11.4 ENTIRE AGREEMENT. This Agreement (including the Schedules hereto), and
the other agreements and documents mentioned in and contemplated hereby
when executed and delivered) constitute the entire agreement and
supersede all prior agreements and understandings, both written and
oral, between the Parties with respect to the subject matter hereof.
11.5 COUNTERPARTS. The Parties may execute this Agreement in separate
counterparts (no one of which need contain the signatures of all
Parties), each of which will be an original and all of which together
will constitute one and the same instrument.
11.6 DISCLOSURE. Any information set forth in any Schedule attached to this
Agreement or incorporated into any Section of this Agreement shall be
considered to have been set forth in every other Schedule to this
Agreement.
11.7 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and permitted
assigns.
11.8 ASSIGNMENT. This Agreement shall not be assignable or otherwise
transferable by any Party hereto without the prior written consent of
the other Party hereto, except to Affiliates and to a buyer of
substantially all the pertinent business of either Party.
11.9 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall confer
any rights upon any person or entity other than the Parties and their
respective successors and permitted assigns.
11.10 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any press
release or make any public announcement relating to the subject matter
of this Agreement prior to the Closing without the prior written
approval of the other Party.
11.11 AMENDMENT, WAIVERS, ETC. Except as otherwise expressly provided herein,
no amendment, modification or discharge of this Agreement, and no
waiver hereunder, shall be valid or binding unless set forth in writing
and duly executed by the Party against whom enforcement of the
amendment, modification, discharge or waiver is sought. Any such waiver
shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the
Party granting such waiver in any other respect or at any other time.
Neither the waiver by any of the Parties of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any
of the Parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege
hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions,
rights or privileges hereunder.
11.12 NO STRICT CONSTRUCTION; INTERPRETATION. The language used in this
Agreement will be deemed to be the language chosen by the Parties to
express their mutual intent and no rule of strict construction will be
applied against any Person.
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ARTICLE XII
CONFIDENTIALITY
12.1 PURCHASER CONFIDENTIAL INFORMATION PROTECTION. The Purchaser hereby
agrees that, except as set forth below, it will and shall cause its
Affiliates to protect all Dade Behring Confidential Information from
disclosure to third parties with the same degree of care that Purchaser
protects its own confidential information and shall not, and shall
cause its Affiliates not to, use any Dade Behring Confidential
Information for any purpose other than for the purposes set forth in
the Transactional Documents; PROVIDED, that the foregoing restrictions
shall not apply to any Dade Behring Confidential Information: (i) which
is or becomes available to Purchaser or its Affiliates from a source
other than Dade Behring or its representatives provided that such
source is not bound by a confidentiality agreement with Dade Behring;
(ii) which is independently developed by Purchaser or its Affiliates
without the benefit of Dade Behring Confidential Information; (iii)
which becomes generally available to the public other than as a result
of disclosure by the Purchaser or its Affiliates; or (iv) which is
required to be disclosed by law, regulation or court or administrative
order.
12.2 SELLER CONFIDENTIAL INFORMATION DEFINITION. "Dade Behring Confidential
Information" shall mean (i) the "Schedule 1.04 Technical Information"
(as defined in the Proprietary Rights Agreement), (ii) all non-public
business records not relating exclusively to the Business and
constituting part of the Purchased Assets, (iii) any proprietary or
non-public information regarding the Seller's manufacturing procedures,
product specifications, research and development, marketing plans or
financial information, whether or not such information relates to the
Business or other business of the Seller, including without limitation
any proprietary or non-public information learned after the Closing by
the Purchaser and/or its Affiliates through their respective
performance under any of the Transactional Documents.
12.3 SELLER CONFIDENTIAL INFORMATION PROTECTION. The Seller hereby agrees
that, except as set forth below, it will, and shall cause its
Affiliates to, protect all Purchaser's Confidential Information from
disclosure to third parties with the same degree of care that Seller
protects its own confidential information and shall not, and shall
cause its Affiliates not to, use any Confidential Information for any
purpose other than the purposes set forth in the Transactional
Documents ; provided, that the foregoing restrictions shall not apply
to any Purchaser's Confidential Information: (i) which is or becomes
available to Seller or its Affiliates from a source other than
Purchaser or its representatives provided that such source is not bound
by a confidentiality agreement with Purchaser; (ii) which is
independently developed by Seller or its Affiliates without the benefit
of Purchaser's Confidential Information; (iii) which becomes generally
available to the public other than as a result of disclosure by the
Seller or its Affiliates; or (iv) which is required to be disclosed by
law, regulation or court or administrative order.
12.4 PURCHASER CONFIDENTIAL INFORMATION DEFINITION. "Purchaser's
Confidential Information" shall mean (i) the "Schedule 1.02 Technical
Information" (as defined in the Proprietary Rights Agreement), and (ii)
any proprietary or non-public information regarding the Purchaser's
manufacturing procedures, product specifications, research and
development, marketing plans or financial information, of the Purchaser
including without limitation any proprietary or non-public information
learned after the Closing by the Seller and/or its Affiliates through
their respective performance under any of the Transactional Documents.
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ARTICLE XIII
DEFINITIONS
13.1 DEFINITION OF CERTAIN TERMS. The terms defined in this Section 13.1,
whenever used in this Agreement (including in the Schedules), shall
have the respective meanings indicated below for all purposes of this
Agreement:
"AFFILIATE" of a Person shall mean a Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or is
under common control with, the first Person.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management policies
of a person, whether through the ownership of voting securities, by
contract or credit arrangement, as trustee or executor, or otherwise.
"AGREEMENT" shall mean this Asset Purchase Agreement, including the
Schedules hereto.
"APPLICABLE LAW" shall mean all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including the common law),
rules, regulations, ordinances, codes or orders of any Governmental
Authority and (ii) Governmental Approvals.
"BUSINESS" shall mean the Rapignost -Registered Trademark- Urine Test
Strip Business relating to the human in vitro diagnosis of diseases or
the determination of health status, i.e., the exclusion of diseases.
"CONSENT" shall mean any consent, approval, authorization, waiver,
permit, grant, franchise, concession, agreement, license, exemption or
order of registration, certificate, declaration or filing with, or
report or notice to, any Person, including but not limited to any
Governmental Authority, in each case only if the failure to obtain,
file, report or give notice would have a Material Adverse Effect.
"GAAP" shall mean the generally accepted accounting principles of the
United States.
"DISTRIBUTION AGREEMENTS" shall mean the Distribution Agreements for
the mutually agreed upon territories, substantially in the form
attached hereto as Exhibit C.
"GOVERNMENTAL APPROVAL" shall mean any Consent of any Governmental
Authority.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state
or other political subdivision thereof.
"KNOWN" or "KNOWLEDGE" shall mean the actual personal knowledge,
without imputation of any other person and without independent
investigation, of any senior manager employed by a Party for whom a
significant portion of his or her duties relates to matters as to which
the applicable representation or warranty is made hereunder.
"LEASE AGREEMENT" shall mean the Lease Agreement with for that certain
manufacturing facility located in Marburg, Germany relating to the
Business, substantially in the form attached hereto as Exhibit D.
"LIEN" shall mean any mortgage, pledge, charge, hypothecation or
security interest.
"LOSS" shall mean any loss, liability, deficiency, action, suit,
proceeding, damage or expense, (including reasonable attorneys fees)
but excluding any consequential damages.
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"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
financial condition or operating results of the Business (taken as a
whole).
"PERSON" shall mean an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a
trust, a joint venture, an unincorporated organization or a
Governmental Authority.
"PROPRIETARY RIGHTS" shall be as defined in the Proprietary Rights
Agreement.
"PROPRIETARY RIGHTS AGREEMENT" shall mean the Proprietary Rights
Agreement, substantially in the form attached hereto as Exhibit A.
"REASONABLE EFFORTS" shall mean reasonable efforts which are
commercially reasonable under the circumstances, excluding the payment
of any money or other consideration to any third party or the
commencement of any litigation or arbitration.
"TAX" or "TAXES" shall mean any federal, state, local or foreign
income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall, profits,
environmental, customs, capital stock, franchise, employees' income
withholding, foreign or domestic withholding, social security,
unemployment, disability, real property, personal property, sales, use,
transfer, value added, alternative or add-on minimum or other similar
tax, governmental fee, governmental assessment or governmental charge
of any kind whatsoever, including any interest, penalties or additions
to Tax or additional amounts with respect to the foregoing.
"TAX RETURN" shall mean any return, report, declaration, form, claim
for refund or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"TRANSACTIONAL DOCUMENTS" shall mean this Agreement, the Proprietary
Rights Agreement, the Transitional Manufacturing Agreement, the
Distribution Agreements, and the Lease Agreement.
"TRANSITIONAL MANUFACTURING AGREEMENT" shall mean the Transitional
Manufacturing and Transfer Assistance Agreement, substantially in the
form attached hereto as Exhibit B.
13.2 CROSS-REFERENCES TO OTHER DEFINED TERMS.
"ASSUMED LIABILITIES" shall have the meaning set forth in Section 1.3.
"AVERAGE INVENTORY" shall have the meaning set forth in Section 2.4.1.
"BASKET AMOUNT" shall have the meaning set forth in Section 10.3.
"CONTRACTS" shall have the meaning set forth in Section 1.1.3.
"EXCLUDED ASSETS" shall have the meaning set forth in Section 1.2.
"EXCLUDED LIABILITIES" shall have the meaning set forth in Section 1.4.
"INDEMNIFICATION CLAIM NOTICE" shall have the meaning set forth in
Section 10.4.1.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section 10.4.1.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
10.4.1.
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"INVENTORY" shall have the meaning set forth in Section 1.1.2.
"PROCEEDING" shall have the meaning set forth in Section 10.4.1.
"PURCHASED ASSETS" shall have the meaning set forth in Section 1.1.
"PURCHASE PRICE" shall have the meaning set forth in Section 2.1.
"TRANSACTION EXPENSES" shall have the meaning set forth in Section
7.3.1.
13.3 OTHER DEFINITIONAL PROVISIONS.
13.3.1 ACCOUNTING TERMS. Accounting terms (if any) which are not otherwise
defined in this Agreement have the meanings given to them under GAAP.
To the extent that the definition of such accounting term that is
defined in this Agreement is inconsistent with the meaning of such term
under GAAP, the GAAP definition will control.
13.3.2 "HEREOF," ETC. The terms "hereof," "herein" and "hereunder" and terms
of similar import are references to this Agreement as a whole and not
to any particular provision of this Agreement. The term "including" as
used in this Agreement is used to list items by way of example and
shall not be deemed to constitute a limitation of any term or provision
contained herein. As used in this Agreement, the singular or plural
number shall be deemed to include the other whenever the context so
requires. Section, clause and Schedule references contained in this
Agreement are references to Sections, clauses and Schedules in or to
this Agreement, unless otherwise specified.
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* * * * * *
IN WITNESS WHEREOF, the Parties have duly executed this Asset Purchase Agreement
as of the date first above written.
DADE BEHRING MARBURG GMBH
/s/ XXXXX XXXXX
---------------------------------------------
Name: Xxxxx Xxxxx
Title: President, Europe Middle East Africa
Managing Director
QUIDEL CORPORATION
/s/ XXXXX XX XXXXX
---------------------------------------------
Name: Xxxxx xx Xxxxx
Title: President, Chief Executive Officer
QUIDEL DEUTSCHLAND GMBH
/s/ XXXXX XX XXXXX
---------------------------------------------
Name: Xxxxx xx Xxxxx
Title:
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Page 25 of 25
