EXHIBIT 6.1
Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
Initial: Initial:
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") dated as of the 1st
day of June, 1998, is made by and between Health Tech International, Inc., a
Florida corporation, (referred to herein as "HEALTH TECH" or the "Seller")
having an address at 00000 X.X. 00xx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx
00000 and World Diagnostics, Inc., a Delaware Corporation (referred to herein as
"WDI" or the "Buyer"), having an address at 00000 XX 00xx Xxxxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxx 00000.
RECITALS
WHEREAS, Sellers and HEALTH TECH desire to sell, and Buyer desires to
purchase, certain of the assets to be owned by Sellers as more specifically set
Forth in Exhibit "A" (referred to herein as the "Conveyed Assets") which assets
include, but are not limited to, the proprietary distribution agreements for
four generic diagnostic products manufacturers and to Health Tech's exclusive
proprietary technology for rapid diagnostic tests in the area of infectious
diseases and other diagnostic products and for the consideration and upon the
terms and subject to the conditions included in this Agreement; and
WHEREAS the Parties, and their principals, as a result of this
agreement, will operate as World Diagnostics, Inc. after the closing;
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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NOW THEREFORE, in consideration of the premises and the mutual
promises, warranties, covenants and agreements made in this Asset Purchase
Agreement, the Parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Asset Purchase Agreement, the following terms shall
have the following meanings:
1.1 "Agreement" means any written or oral contract, agreement, contract
rights, license, franchise, lease, mortgage, indenture, instrument, commitment,
obligation, plan or arrangement, whether formal or informal.
1.2 "Ancillary Agreements" shall mean the agreements dated as of this
date and entered into by the parties hereto as to certain ancillary matters.
1.3 "WDI Common Stock" shall mean the Common Stock of WDI, $.001 par
value.
1.4 "Closing" shall mean the consummation of the transactions set forth
in this Agreement.
1.5 "Knowledge" shall mean actual knowledge or such knowledge that a
reasonable person in such circumstances would have reason to know.
1.6 "Assets" when referred to in this agreement includes, the
proprietary
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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distribution agreements for four generic diagnostic products manufacturers and
to Health Tech's exclusive proprietary technology for rapid diagnostic tests in
the area of infectious diseases and other diagnostic products described in
Exhibit A herein. Seller shall keep all right, title and interests in all assets
and liabilities not described in Exhibit A herein.
1.7 "Conveyed Assets" shall mean those assets of Sellers which are
being sold, transferred and conveyed under the terms of this Agreement from
Sellers to WDI, as specifically set forth in Exhibit "A". The Conveyed Assets
shall be delivered to Buyer subject to any Ancillary Agreements executed by
the parties hereto. The Conveyed Assets shall NOT include any any rights, which
accrue or may accrue to Sellers under this Agreement or any Ancillary
Agreements;
1.8 "Retained Assets" shall mean those assets not set Forth in Exhibit
"A" and all rights therein.
ARTICLE II
PURCHASE AND SALE
2.1 CONSIDERATION. The consideration for the transfer of Conveyed
Assets (See Exhibit "A") (the "Purchase Price") shall be Two Thousand Dollars
($2,000.00) which terms and conditions are set forth in Section 2.2 hereof.
2.2 TERMS OF SALE. Upon the terms and subject to the conditions set
forth in this
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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3.1 CORPORATE ORGANIZATION. WDI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to execute and deliver this
Agreement and each Ancillary Agreement to which it is a party, if any, to
perform its respective obligations hereunder and thereunder, and to consummate
the respective transactions contemplated hereby and thereby.
3.2 CAPITALIZATION. The authorized capital stock or WDI consists of
10,000,000 shares of $.001 par value common stock. In addition, WDI has issued
950,000. Warrants to purchase common stock. Each warrant can be exercised within
nine (9) months from the closing of a private placement, which shall occur
simultaneous with the closing of this Asset Purchase Agreement at price of $1.00
per share. Other than the warrants detailed in this Section 3.2, there are no
outstanding warrants, calls, puts, of any character providing for the purchase,
issuance or sale of any shares of the capital stock or any other securities of
WDI.
3.3 AUTHORIZATION. ENFORCEABILITY. All necessary and appropriate
corporate action has been or will be taken by WDI prior to the Closing with
respect to the execution and delivery of this Agreement and each Ancillary
Agreement to which it is a party and the performance by WDI of its respective
obligations hereunder and thereunder, and approval
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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by the members or holders of any class of securities of WDI of the execution and
delivery of this Agreement or any Ancillary Agreement to which WDI is a party or
the consummation of the respective transactions contemplated hereby or thereby
is not required. The execution and delivery of this Agreement and the Ancillary
Agreements to which WDI is a party, the consummation of the respective
transactions contemplated hereby or thereby, and the performance or satisfaction
of the respective terms and conditions hereof or thereof do not constitute and
will not constitute a breach or default (or an event which, with the lapse of
time or the giving or a notice, or both, would constitute a breach or default)
or conflict with, any agreement, deed, writ, order, decree, or judgment, to
which WDI is a party or by which WDI is bound, and do not and shall not violate
or conflict with any applicable federal, state or local law, rule, regulation,
writ, decree or order to which WDI is subject, nor shall they conflict with or
violate any term, provision or covenant of any agreement, mortgage, contract,
indenture, instrument or judgment applicable to WDI.
3.4 BROKER AND FINDERS. No finder, broker, agent or other intermediary
has acted on behalf of WDI or is entitled to a commission or finder's fee in
connection with the negotiation or consummation of this Agreement.
3.5 GOVERNMENTAL APPROVALS AND FILINGS. WDI is not required to obtain
any consent, approval or authorization of, or to make any declaration or filing
with, any
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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governmental authority for the valid execution and delivery of this Agreement or
any Ancillary Agreement to which it is a party, the performance of its
obligations hereunder and thereunder or the consummation of the transactions
contemplated hereby or thereby.
3.6 FINANCIAL CONDITION. WDI is a recently formed corporation.
3.7 Taxes. There are no tax audits or investigations, local, state, or
Federal, concerning or related to WDI pending, nor are there any required taxes;
fees, assessments, or governmental charges of any type which are due and/or are
unpaid.
3.8 COMPLIANCE WITH LAW: LICENSES. WDI conducts its business in
compliance in all material respects with all applicable laws, governmental
regulations, and judicial and administrative decisions, and no notice stating or
asserting the lack of such compliance has been received. All license or permits
issuable by any governmental authority which are necessary for the operation of
the business of WDI have been obtained and are currently in full force and
effect.
3.10 INVESTMENT REPRESENTATIONS. WDI is acquiring the Conveyed Assets
for purposes of continuing the Business of Health Tech. Accordingly, WDI may
resell a portion or all of the assets in the ordinary course of its business.
3.11 LITIGATION. There is no suit, claim, action, litigation or
proceeding, administrative or judicial, or any governmental investigation
pending or, to the knowledge of
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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WDI, threatened against WDI or involving any of its properties or assets,
including without limitation any claim, proceeding or litigation for the purpose
of challenging, enjoining, or preventing the execution and delivery of this
Agreement or any Ancillary Agreement to which WDI is a party, the performance of
the respective terms and conditions hereof or thereof or the consummation of the
respective transactions contemplated hereby or thereby. To the knowledge of WDI,
it is not subject to or in default under any order, writ, injunction or decree
of any court or governmental authority.
3.12 OTHER GOVERNMENTAL APPROVALS AND FILINGS. WDI is not required to
obtain any consent, approval or authorization of, or to make any declaration or
filing with, any governmental authority for the valid execution and delivery of
this Agreement or any Ancillary Agreement to which WDI is a party, the exchange
of the Shares, or the performance or consummation or the respective transactions
contemplated by this Agreement or such Ancillary Agreement.
3.13 SUBSIDIARIES. None.
3.14 DISTRIBUTION OF CONVERTIBLE DEBENTURES. None.
3.15 MATERIAL CONTRACTS. Except as set forth in WDI's balance sheet
attached hereto, WDI is not party to, and the properties or assets of WDI are
not subject to or bound under, any agreement of the following kind:
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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(a) Any lease of real or personal property, either as lessor or as
lessors, which is not terminable by WDI without penalty within 30 days after
notice;
(b) Any agreement with or obligation to any director, officer or
shareholder of WDI;
(c) Any agreement or instrument for or relating to the borrowing of
money, either as borrower or lender;
(d) Any agreement with or legal obligation to any salesmen,
representatives, agents, dealers or distributors;
(e) Any franchise or franchise agreement; or
(f) Any other agreement of any kind which is material to the
operations, business, financial condition, property or assets of WDI.
All agreements, if any, disclosed in this Agreement to which WDI is
party, or by which it or any of its properties or assets is bound, are in full
force and effect and are valid, binding and enforceable in accordance with
their respective terms, and WDI is not in material default or breach, nor, to
the knowledge of the WDI and its shareholders, has there occurred an event or
condition which, with the passage of time or the giving of notice (or both),
would constitute a material default or breach by WDI with respect to the payment
or performance of any obligation thereunder, and no claim of such a default has
been
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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asserted and there is no basis upon which such a claim could validly be made.
3.16 FINANCIAL CONDITION. There will be no material change in the
financial condition of WDI errors the date of this Agreement until Closing.
3.17 INDEBTEDNESS. Except as disclosed in WDI's balance sheet, it is
not indebted to any person or entity for any reason.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS AND SHAREHOLDERS
Officers and Directors of HEALTH TECH represent and warrant to Buyer
as follows:
4.1 NO VIOLATION. Neither the execution, delivery or peformance of this
Agreement or any Ancillary Agreement(s) will (a) violate or result in a breach
or default under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the Conveyed Assets or any agreement, contract
or understanding to which HEALTH TECH is a party, (b) violate any order,
judgment, decree or law applicable to Sellers.
4.2 Corporate Organizations. HEALTH TECH is a corporation duly
organized and validly existing and in good standing under the laws of the State
of Florida and has all requisite corporate power to execute and deliver this
Agreement and each Ancillary Agreement to which it is a party, to perform its
respective obligations hereunder and
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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thereunder and to consummate the respective transactions contemplated hereby and
thereby.
4.3 Authorization. HEALTH TECH is authorized to issue ___________
shares of stock at ___________ par value and has all requisite power and
authority to execute and deliver this Agreement and each Ancillary Agreement to
which it is a party, perform its respective obligations thereunder, and
consummate the respective transactions contemplated hereby and thereby. All
necessary action has been taken by HEALTH TECH and the majority of its
shareholders with respect to the execution, delivery and performance of this
Agreement and each Ancillary Agreement to which they are a party. Health Tech
was incorporated in Florida on ___________ ______, 19__.
4.4 Enforceability. This Agreement and the Ancillary Agreements to
which Shareholders are a party constitute a valid and binding obligation of
Shareholders enforceable in accordance with their respective terms, except as
limited by bankruptcy insolvency or other such laws concerning the rights of
creditors generally and the application of equitable principles. The execution
and delivery of this Agreement and the Ancillary Agreements, the consumation of
the respective transactions contemplated hereby or thereby, and the performance
or satisfaction of the respective terms anc conditions hereof or thereof do not
constitute and will not constitute a breach or default (or
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
Initial: Initial:
an event which, which, with the lapse of time or the giving of a notice, or
both, would constitute a breach or default) under conflict with, any Agreement,
deed, writ, order decree, or judgment, and do not and shall not violate or
conflict with any applicable federal, state or local law, rule or regulation to
which the Sellers are subject. Pursuant to the provisions of this Agreement
Seller will transfer to WDI valid title thereto, free and clear of all liens,
except as stated herein, security instruments, encumbrances, pledges, charges,
claims, voting trusts and restrictions or any nature whatsoever, other than
restrictions on transfer or a general nature arising under federal and state
laws, to the assets described in Exhibit A.
4.5 Brokers, Finders. No finder, broker, agent or other intermediary
has acted on behalf of HEALTH TECH or its Shareholders, or is entitled to a
commission or a finder's fee in connection with the negotiation or consummation
of the Agreement or any of the transactions contemplated thereby, except that
ViStra Growth Partners, Inc. is acting as its financial advisor.
4.6 Other Governmental Approvals and Filings. Other than as set forth
herein, Sellers, HEALTH TECH or its Shareholders, are not required to obtain any
consent, approval or authorization of, or to make any declaration or filing with
any governmental authority as a prerequisite to the valid execution and
delivery of this Agreement to any Ancillary Agreements to which HEALTH TECH or
the Shareholders are parties, the
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
Initial: Initial:
purchase and sale of the Shares, or the performance or consummation of the
respective transactions contemplated by this Agreement of such Ancillary
Agreement.
4.7 Compliance with Law; Licenses. HEALTH TECH conducts business in
compliance in all material respects with all applicable laws, govermental
regulations, and judicial and administrative decisions, and no notice stating or
asserting the lack of such which are necessary for the operation of the business
HEALTH TECH and which concern assets being conveyed to WDI, have been obtained
and are currently in full force and effect.
4.8 Renewal; Survival. Each of the representations and warrantees set
forth in Article IV shall survive the Closing.
ARTICLE V
INDEMNIFICATION
5.1 INDEMNITY
(a)HEALTH TECH agrees to hold harmless and indemnify WDI and its
shareholders, directors, officers, employees, representatives, agents,
successors, consultants and assigns from and against any past claim, loss,
damage, liability, expense
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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Or cost of any kind or amount whatsoever (including, without limitation,
reasonable attorney's fees and expenses) which results from or arises out of any
breach of or default under any representation, warranty, covenant or agreement
made by HEALTH TECH in this Agreement, in any Schedule or Exhibit to this
Agreement. In any Ancillary Agreement or in any certificate or other agreement
or document furnished or to be furnished by or on behalf of Sellers, HEALTH
TECH, under this Agreement or in connection with the respective transactions
contemplated hereby or thereby.
(b) WDI agrees to indemnify and hold Sellers. HEALTH TECH, and their
respective directors, officers, employees, representatives, agents, successors,
consultants and assigns harmless from and against any future claims from the
date of this Agreement, claims, damages, losses, liabilities, expense or cost of
any kind or amount whatsoever (including, without limitation, reasonable
attorney's fees and expenses) which results from, or arises out of any breach
of or default under any representation, warranty, covenant or agreement made
by WDI in this Agreement, in any Schedule or Exhibit to this Agreement, in any
Ancillary Agreement or in any certificate or other agreement or document
furnished or to be furnished by or on behalf of WDI under this Agreement or in
connection with the respective transactions contemplated hereby or thereby.
5.2 NOTICE OF CLAIM. Subject to Section 5.3, in the event that any
party hereto
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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asserts a claim for indemnification hereunder, such party seeking
indemnification (the "Indemnified Party") shall give written notice to the other
party (the "Indemnifying Party") specifying the facts constituting the basis
for such claim and the amount, if known, of the claim asserted.
5.3 RIGHT TO CONTEST CLAIMS OF THIRD PARTIES. If an Indemnified Party
asserts a claim for indemnification hereunder because of a claim made by any
claimant not a party to this Agreement, the Indemnified Party shall give the
other party or parties reasonably prompt notice thereof, but in no event more
than three (3) business days after said assertion is actually known to the
Indemnified Party. The Indemnifying Party shall have the right, upon written
notice to the Indemnified Party, and using counsel reasonably satisfactory to
the Indemnified Party, to investigate, secure, contest or settle the claim
alleged by such third party (hereinafter called a "Third-Party Claim"), provided
that the Indemnified Party may participate voluntarily at its own expense, in
any such Third-Party Claim through representatives and counsel of its own
choice. Except as expressly provided otherwise in this Section 5.3, the
Indemnified Party shall not settle or compromise any Third-Party Claim for which
it seeks indemnification hereunder without the prior written consent of the
Indemnifying, Party (which shall not be unreasonably withheld) unless suit shall
have been instituted against it and the Indemnifying Party shall not have taken
control
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Asset Purchase Agreement
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of the defense of such Third-Party Claim after notification thereof as provided
in this Section 5.3.
Except as provided otherwise in the immediately preceding paragraph
with regard to the Indemnified Party's voluntary participation, the Indemnifying
Party shall bear all costs of such Tnird-Party Claim and shall indemnify and
hold the Indemnified Party harmless against and from all costs, fees and
expenses of such Third-Party Claim. Unless and until the Indemnifying Party
elects to defend the Third-Party Claim the Indemnified Party shall have the full
right, at its option, to do so and to look to the Indemnifying Party under the
provisions of this Agreement for the amount of the costs, if any, of defending
the Contest. The failure of the Indemnifying Party to respond in writing to the
aforesaid notice Of the Indemnified Party with respect to such Third-Party Claim
within ten (10) business days after receipt thereof shall be deemed an election
not to defend the same. If the Indemnifying Party does not assume the defense of
any such Third-Party Claim, including any litigation resulting therefrom, (a)
the Indemnified Party may defend against such claim or litigation, in such
manner as it may deem appropriate, including, but not limited to, setting such
claim or litigation, after giving notice of the same to the Indemnifying Party,
on such terms as the Indemnified Party may deem appropriate, and (b) the
Indemnifying Party shall be entitled to participate in (but not to control)
the defense of such action, with its own counsel at its own
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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expense.
The parties hereto shall make mutually available to each other all
relevant information in their possession relating to any such Third-Party Claim
and shall cooperate in the defense thereof.
ARTICLE VI
CONDITIONS
6.1 CONDITIONS. Notwithstanding anything else to the contrary contained
in this Agreement, the following shall be conditions precedent to Closing:
(a) The conduct of a due diligence investigation with regard to WDI and
the Other Entities, the same to be completed within 7 days, and the same to be
satisfactory to Seller's Shareholders, HEALTH TECH and their respective counsel
in all respects;
(b) That the representations and warranties of WDI have been and are
true as of the date of Closing and have been certified as true;
(c) That all documents, contemplated hereby, or any ether documents
contemplated hereby or pursuant to the Understanding, are acceptable to HEALTH
TECH.
ARTICLE VII
MISCELLANEOUS PROVISIONS
8.1 Notice. All notices, requests, demands and other communications
required or
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Asset Purchase Agreement
World Diagnostics,Inc. Health Tech International, Inc.
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permitted under this Agreement shall be deemed to have been duly given and made
if in writing upon beings served either by personal delivery or by telecopier
to the party for whom it is intended or two business days after being
deposited, postage prepaid, certified or registered mail, return receipt
requested (or such form of mail as may be substituted therefor by postal
authorities), in the United States mail, bearing the address shown in this
Section 8.1:
SELLER:
Health Tech International, Inc.
0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
E-Mail: xxx@xxxxxx.xxx
BUYERS:
World Diagnostics, Inc.
00000 XX 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
8.2 ENTIRE AGREEMENT. This Agreement, the Memorandum, the Ancillary
Agreements, the Schedules and Exhibits hereto and thereto, and all documents
contemplated hereby and thereby embody the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof and thereof, and
supersede all prior and contemporaneous agreements and understanding relative to
said subject matter.
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Asset Purchase Agreement
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8.3 BINDING EFFECT: ASSIGNMENT. This Agreement and the various rights
and obligations arising hereunder shall inure to the benefit of and be binding
upon WDI, its successors and permitted assigns and HEALTH TECH, its successors
and permitted assigns. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be transferred or assigned (by operation of law
or otherwise) by any of the parties hereto without the prior written consent of
the other party (which consent shall not be unreasonably withheld).
8.4 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, expressed
or implied, is intended or shall be construed to confer upon or give to any
person, firm, corporation or legal entity, other than the parties hereto, any
rights, remedies or other benefits under or by reason of this Agreement.
8.5 COUNTERPARTS. This Agreement may be executed simultaneausly in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
8.6 CAPTIONS. The section headings of this Agreement are inserted for
convenience only and shall not constitute a part of this Agreement in construing
or interpreting any provision hereof.
8.7 EXPENSES AND TRANSACTIONS. Each party hereto shall pay all costs
and
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Asset Purchase Agreement
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expenses incurred by it in connection with this Agreement and the
transactions contemplated hereby, including without limitation, the fees and
expenses of his or its counsel and certified public accountants.
8.8 AMENDMENT. This Agreement may not be changed, amended, terminated,
augmented, rescinded or discharged (other than in "accordance with its terms),
in whole or in part, except by a writing executed by the parties hereto.
8.9 OTHER AND FURTHER COVENANTS. The parties shall, in good faith,
execute such other and further instruments, assignments or documents as may be
necessary for the consummation of the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, the parties hereto
shall assist and cooperate with each other in connection with these activities
8.10 GOVERNING LAW. This Agreement shall in all respects be construed
in accordance with and governed by the laws of the State or Florida (without
giving effect to conflict-of-laws principles).
8.11 PUBLICITY. The parties hereto agree to cooperate in determining
the contents and the manner of presentation and publication of any press
releases or public statements with respect to the transactions contemplated
hereby, but each party may make any public disclosure required, in its judgment,
by law or regulation.
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Asset Purchase Agreement
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first above written.
WITNESS: WORLD DIAGNOSTICS, INC.
/s/ Xxxxx Xxxxx X. xx Xxxxxxx By: /s/ Xxx Xxxxxx
-------------------------------------- ----------------------------------
Print Name: Xxxxx Xxxxx X. xx Xxxxxxx Its: President
--------------------------- ---------------------------------
/s/ Xxx Xxxxxxxxxx
--------------------------------------
Print Name: Xxx Xxxxxxxxxx
---------------------------
HEALTH TECH INTERNATIONAL, INC.
/s/ Xxxxx Xxxxx X. xx Xxxxxxx By: /s/ Xxx Xxxxxx
-------------------------------------- ----------------------------------
Print Name: Xxxxx Xxxxx X. xx Xxxxxxx Its: President
--------------------------- ---------------------------------
/s/ Xxx Xxxxxxxxxx
--------------------------------------
Print Name: Xxx Xxxxxxxxxx
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