EXHIBIT 99.(A)
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, (the Asset Purchase Agreement, together with all
exhibits,schedules and other documents attached hereto, hereinafter referred to
as the "Agreement") is made by and between Genetronics Biomedical Corporation, a
Delaware corporation (the "Seller") and the sole shareholder of Genetronics,
Inc., a California corporation and ICN Biomedicals, Inc., a Delaware corporation
(the "Purchaser"), on this 19th day of June, 2002.
WITNESSETH
WHEREAS, Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, certain of the assets, properties and
rights comprising Seller's research products division, also known as the BTX
division of Genetronics, Inc. ( the "Business").
NOW THEREFORE, for and in consideration of the premises, mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
agreed, and intending to be legally bound, the parties agree as follows:
ARTICLE I
ASSETS, LIABILITIES AND PURCHASE PRICE
1.1 Purchase and Sale of Assets. Subject to the terms and conditions of
this Agreement, the Seller agrees to sell, transfer, convey, assign and deliver
("Transfer") to the Purchaser, and the Purchaser shall purchase, acquire and
accept from the Seller, all of the Seller's right, title and interest to
Seller's properties, assets, and contracts of every kind, character and
description, whether tangible or intangible, and wherever located, owned by the
Seller and necessary for the operation of the Business ( hereinafter
collectively referred to as the "Transferred Assets") free and clear of all
Liens (as defined in Section 3.07) including without limitation:
(a) all inventories of the Business, including, without limitation,
all raw materials, work in process and finished goods
(collectively, the "Inventories"), a summary of which is set
forth on Schedule 1.01(a);
(b) all packaging materials, shipping materials, supplies and
printed materials of the Business;
(c) all prepaid expenses of the Business;
(d) all machinery, equipment, molds, tools and spare parts of the
Business that are reflected on Schedule 1.01(d);
(e) all of the following which shall be specifically set forth on
Schedule 1.01(e) as to the intellectual property relative to any
aspects of the Business: (1) United States and foreign copyright
rights and registrations and applications therefore, for
copyright works created prior to the Closing by Seller which are
used in the conduct of the
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Business and which works and copyright rights are in the
possession of and/or owned or licensed by the Seller as of the
Closing; (2) United States and foreign trademarks, registered or
unregistered, adopted for use in the conduct of the Business,
which are owned or licensed by the Seller as of the Closing, and
any trademark registrations therefore (or applications for
trademark registrations), together with the goodwill of the
Business associated therewith; (3) all un-patented inventions,
trade secrets, confidential and proprietary information and
know-how that originated out of, and are immediately prior the
Closing, in possession of, used in and owned by the Seller; and
(4) all rights to xxx third parties for infringement with
respect to the foregoing.
(f) an exclusive worldwide, royalty-free license to all United
States and foreign patents and all applications therefore, and
inventions made prior to the Closing by the Seller and owned or
licensed by the Seller as of the Closing and used in the conduct
of the Business further described in Sections 3.1.1, 3.1.2,
3.1.3, and 3.1.4 of the License Agreement between the parties
attached hereto as Exhibit A;
(g) all rights in, to and under the contracts and agreements of the
Business, all of which are set forth on Schedule 1.01(g);
(h) all marketing and sales materials, advertising materials,
catalogs and sales brochures of the Business, as described in
Schedule 1.01(h) ;
(i) all permits, licenses, license applications, approvals, product
registrations and product clearances that are used in the
conduct of the Business including those that are set forth on
Schedule 1.01(i) (to the extent the same are transferable); and
(j) all books, records, manuals, files and other documentation,
whether written, electronic or otherwise, of the Business,
including without limitation, customer records, supplier lists,
distributor lists, purchase and sale records, price lists,
correspondence, quality control records, research and
development files, drawings, blue prints, designs and accounting
records;
(k) such other assets as may reasonably be necessary and sufficient
for ICN to obtain the full benefits of the acquisition as a
going concern as negotiated by the parties.
1.2 Liabilities. Any liabilities arising from the conduct of the
Business prior to the close shall be the responsibility of the Seller and shall
not be transferred under this Agreement. The Purchaser shall assume and agree to
pay when due, all obligations and liabilities arising from the conduct of the
Business from and after the Closing.
1.3 Purchase Price. The aggregate purchase price (the "Purchase Price")
for the Transferred Assets to be paid by the Purchaser to the Seller by wire
transfer to Seller's denominated account on the Closing shall be FIVE MILLION
DOLLARS ($5,000,000)).
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ARTICLE II
CLOSING
2.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will be following the successful completion of the
Conditions to Closing set forth in Section 6 or at such other time as Seller and
Purchaser agree, and will take place at the Purchaser's place of business at 00
Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000. At the Closing, the Purchaser shall pay the
Purchase Price, less $500,000 of the Purchase Price which shall be held back
pursuant to Section 2.02 below, to Seller by wire transfer of immediately
available funds to an account identified in writing by the Seller to the
Purchaser.
2.2 Holdback. Purchaser shall withhold $500,000 of the Purchase Price,
which shall be held until December 31, 2002 to secure the indemnification
obligations of the Seller under this Agreement ( the "Holdback"). The maximum
Holdback for any sales shortfall shall be $200,000 held back dollar for dollar
relative to sales under $4,200,000 for the twelve months ending December 31,
2002. Within thirty (30) days after December 31, 2002, following the
determination that the Holdback is no longer required, Purchaser will deliver to
Seller any remainder from the $500,000 following the payment of any liabilities
for which the Seller is responsible pursuant to this Agreement.
2.3 Conveyance and Transfer. At the Closing, the Seller shall deliver to
the Purchaser such Bills of Sale, endorsements, assignments and other good and
sufficient instruments of conveyance and transfer, in a form reasonably
satisfactory to the Purchaser, effective to vest in the Purchaser all of the
Seller's right, title, and interest in and to the Transferred Assets.
2.4 Further Assurances. From time to time after the Closing, and without
further consideration:
(a) The Seller shall execute and deliver such other instruments of
conveyance, assignment, transfer and delivery and take such
other actions as the Purchaser may reasonably request in order
to more effectively Transfer to the Purchaser the rights,
properties, assets of the Business intended to be Transferred
hereunder;
(b) The Purchaser shall take such actions as the Seller may
reasonably request in order to assure the assumption and payment
and discharge of the Assumed Liabilities by the Purchaser.
2.5 Taxes. The Purchaser shall pay all sales taxes due as a result of
the Transfer contemplated by this Agreement.
2.6 Breakup Fee. If either party notifies the other that within sixty
(60) days of the signing of this Agreement of an intention to end this Agreement
there will be a transaction fee of $100,000.00 immediately owed to the other
party. If either party notifies the other that within the period of sixty one
(61) to one hundred twenty (120) days following the signing of this Agreement,
the party intends to terminate this Agreement there will be a transaction fee of
$200,000.00 immediately owed to the other party.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Except as set forth in the disclosure schedule attached hereto (the
"Disclosure Schedule") the Seller hereby represents and warrants to the
Purchaser as follows:
3.1 Corporate Existence. The Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Delaware
and has full corporate power and authority to conduct its business as it is now
being conducted and to own or lease its properties and assets. The Seller is
duly qualified or licensed to do business as a foreign corporation, and is in
good standing as a foreign corporation, in every jurisdiction in which the
ownership of the Business's property or assets or the conduct of the Business
requires such qualification or license, except where the failure to be so
qualified would not have a material adverse affect on the Business.
3.2 Corporate Power and Authority. The Seller has full corporate power
and authority to enter into this Agreement, perform its obligations hereunder,
Transfer the Transferred Assets and carry out the transactions contemplated
hereby. The execution and delivery of this Agreement, the performance by the
Seller of its obligations hereunder and the consummation of the transactions
contemplated herein have been duly authorized by all corporate, shareholder and
other actions on the part of the Seller required by applicable law, its
certificate of incorporation and its by-laws. This Agreement constitutes the
legal, valid and binding obligation of the Seller, enforceable against it in
accordance with its terms, except (1) as the same may be limited by bankruptcy,
insolvency reorganization, moratorium or similar laws now or hereafter in effect
relating to creditor's rights generally and (2) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
3.3 No Violation. Neither the execution and delivery of this Agreement
nor the performance by the Seller of its obligations hereunder nor the
consummation of the transactions contemplated hereby will (a) contravene any
provision of the certificate of incorporation or by-laws of the Seller; (b)
except for provisions relating to the assignment of contracts, violate, be in
conflict with, constitute a default under, permit the termination of, cause the
acceleration of the maturity of any debt or obligation of the Seller or the
Business hereunder, require the consent of any other party to, constitute a
breach of, create a loss of a material benefit under, or result in the creation
or imposition of any Lien, upon any property or assets of the Business under any
mortgage, indenture, lease, contract, agreement or instrument to which the
Seller or the Business is a party or by which the Seller or the Business, or any
of either of their assets or properties may be bound; (c) to the best of the
Seller's knowledge, violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which the Seller or
the Business is subject or by which the Seller or Business, or any of either of
their assets or properties are bound; or (d) result in the loss of any material
license or permit benefiting the Business.
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3.4 Consents and Approvals of Governmental Authorities. No consent,
approval or authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required to be made or obtained by the
Seller or the Business in connection with the execution, delivery or performance
of this Agreement by the Seller.
3.5 Financial Representation. Net Sales ("Net Sales calculated according
to U.S. Generally Accepted Accounting Principles), for the twelve (12) month
period ending December 31, 2002, will be in excess of $4.2 Million Dollars. In
the event that Net Sales do not equal or exceed $4.2 Million Dollars for the
twelve months ending December 31, 2002, up to $200,000.00 of the Holdback will
be released to Purchaser dollar for dollar based on the sales shortfall.
3.6 Absence of Certain Changes. Since January 1, 2002, the Seller has
conducted the Business in all material respects in the ordinary course of
business and the Business has not:
(a) suffered any material adverse change in its condition,
operations, assets or business;
(b) suffered any damage, destruction or loss materially adversely
affecting its business, operations, assets or condition;
(c) except in the ordinary course of business, canceled or
compromised any material debts, or waived any material claims or
rights, or sold, assigned or transferred any of its properties
or assets material to the Business;
(d) entered into any agreement that calls for the payment or receipt
of more than $100,000.00;
(e) made any change in any method of accounting or accounting
practice;
(f) entered into any agreement to take any action referred to in
this Section 3.06.
3.7 Title to Properties; Encumbrances. The Seller has good and
marketable title to all of its properties and assets constituting the
Transferred Assets. None of the Transferred Assets are subject to any Lien. When
used in this Agreement, "Lien" shall mean any mortgage, pledge, security
interest, conditional sale or other title retention agreement, encumbrance,
lien, easement, claim, right, covenant, restriction, right of way, warrant,
option or charge of any kind.
3.8 Patents, Trademarks, Trade Names. Schedule 3.08 contains a true and
complete list of (a) all present patents, trademark registrations and copyright
registrations originating out of and owned by Seller and material to the
Business, all applications for registration thereof and all intellectual
property license agreements relating thereto and (b) all material agreements in
existence on the Closing date relating to technology, know-how or processes that
are necessary to conduct the Business that the Business is licensed or
authorized to use by third parties or licenses or authorizes others to use. No
licenses, sub-licenses or agreements with third parties exist as of the Closing
date that were entered into by the Business granting rights in such patents,
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trademarks or copyrights included in the Transferred Assets, except as described
in Schedule 3.08. The Seller has the right to use all information and know-how
that are used in the conduct of the Business as currently conducted. Except as
set forth elsewhere in this Agreement, all items listed on Schedule 3.08 are
transferred free and clear of all Liens. The operations of the Business as
conducted as of the Closing, to the Seller's knowledge, do not infringe any
third-party intellectual property rights.
3.9 Litigation. There are no actions, claims, proceedings or
investigations (collectively "Actions") pending, or threatened, against the
Business or any of its assets, properties or rights before any court,
arbitrator, mediator or administrative or governmental body. There is no action
pending, threatened, against the Seller or any of its assets, properties or
rights before any court, arbitrator, mediator, or administrative or governmental
body that questions or challenges the validity of this Agreement or any actions
taken or proposed to be taken by the Seller pursuant to this Agreement.
3.10 Insurance. Schedule 3.10 sets forth a true and complete list of all
policies of liability insurance owned or held by the Seller for the benefit of
the Business. The Seller has not received any notice of cancellation with
respect thereto. All such policies are valid and binding and in full force and
effect as of the date hereof.
3.11 Contracts and Commitments
(a) Schedule 3.11 and the technology licenses and agreements set
forth on Schedule 3.08, contain a true and complete list and
description of:
(1) All contracts or agreements with distributors, brokers,
manufacturer's representatives, sales representatives, service
or warranty representatives or others engaged in the sale,
distribution, service or repair of the Business's products;
(2) Any outstanding purchase orders issued by the Business in
excess of $25,000.00, and any outstanding sales order accepted
by the Business in excess of $100,000.00;
(3) All joint venture or similar agreements to which the Seller
is a party that provide for the manufacture, marketing, sale or
distribution of any products of the Business.
(b) The Seller has made available to the Purchaser copies of the
documents identified on Schedules 3.08 and 3.11 (collectively
the "Material Contracts") and shall deliver true and complete
copies of all other agreements and documents as the Purchaser
may reasonably request.
(c) Except for licenses, distributorship agreements and similar
agreements, that by their terms are for specific geographical
areas, neither the Business nor the Seller is a party to any
agreement that would restrict the Business from carrying on its
business anywhere in the world.
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(d) Each of the Material Contracts that calls for the receipt of
payment of more than $25,000.00 has been entered into in the
ordinary course of business. The business has not received
written notice of any asserted claim of default by the Seller
with respect to any of the Material Contracts that calls for the
receipt or payment of more than $25,000.00.
3.12 Suppliers and Customers. Schedule 3.12 contains a true and complete
list of all suppliers and customers with whom the BTX division of Seller did
business during the twelve (12) month period ended as of the Closing Date. The
Seller has no knowledge that any such supplier or customer expects materially to
reduce its business with the BTX division of Seller.
3.13 Employment Law Matters. The Business is in compliance in all
material respects with all laws and regulations relating to employment
practices. The Seller, with respect to the conduct of the Business, has not
received written notice within the last year that it has not complied with any
applicable law relating to the employment of labor, including any provisions
thereof relating to the wages, hours, collective bargaining, the payment of
social security and similar taxes, equal employment opportunity, employment
discrimination and employment safety, or that it is liable for any arrearage of
wages or any taxes or penalties for failure to comply with any of the foregoing.
If required under Worker Adjustment, Retraining and Notification Act or other
similar law, the Seller shall timely file and comply with all notice and other
requirements therein or under such laws.
3.14 Environmental Matters. The Business is in compliance in all
material respects with all federal, state and local environmental laws and
regulations (collectively, "Environmental Laws"). The Seller has obtained all
material permits, licenses and other authorizations that are required under
Environmental Laws with respect to the conduct of the Business and is in
compliance in all respects therewith. Set forth on Schedule 3.14 are all Actions
about which the Seller has received written notice that are pending before any
court or governmental agency or, threatened for (1) noncompliance by the
Business with any Environmental Law or regulation or (2) relating to the release
into the environment by the Business of any pollutant, toxic, radioactive or
hazardous material or waste generated by the Business, whether or not occurring
at or on a site owned, leased, occupied, or operated by the Business.
3.15 Compliance with Laws. During the previous five years, the Business
has not been charged with, and is not threatened with or under any investigation
with respect to, any charge concerning any material violation of any material
federal, state, local or foreign law or regulation affecting the Business. The
Seller is not in default with respect to any order, writ, injunction or decree
of any court, agency or instrumentality issued to or against the Business.
3.16 Licenses, Permits and Authorizations. The Business has all licenses
and permits (collectively "Permits") required to conduct its business as it is
now being conducted, the lack of which would have an adverse affect on the
Business. All such Permits are valid and in full force and effect. Schedule 3.16
contains a true and complete list of all such Permits. There is no Action
pending, or threatened, that disputes the validity of such Permit.
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3.17 Equipment; Condition of Tangible Assets. Schedule 3.17 contains a
true and complete list of all machinery, equipment, and other tangible personal
property owned by the Business as of the Closing, and expected to be included in
the Transferred Assets as of the date hereof. The Business's tangible assets
that are included in the Transferred assets are in good operating condition
given their age and level of depreciation, normal wear and tear excepted, and
are adequate for the use to which they have been put by the Business.
3.18 Sufficiency of Assets. Excepting the Excluded Assets, the
Transferred Assets constitute all property, assets and contractual rights
necessary for the conduct of the Business as currently conducted. The Business
has as of the Closing date has a normal operating supply of Inventories,
equipment and supplies, sufficient to last 60 days of normal production.
3.19 Tax Returns and Payments. All of the tax returns and reports of the
Seller with respect to the Business required by law to be filed have been duly
filed and all taxes shown as due thereon have been paid (except in instances
where extensions have been filed.) None of the Transferred Assets is subject to
any lien for taxes that are delinquent or due and payable. The provisions of
this Section 3.19 shall include all reports, returns and payments due under all
Federal, state, or local laws or regulations relating to income taxes,
withholding taxes, unemployment insurance, social security, worker's
compensation, sales taxes, use taxes, property taxes, franchise taxes and other
obligations of a similar nature. With respect to the Business, to the Seller's
knowledge, there are no suits, actions, claims, investigations, inquiries or
proceedings now pending against the Seller in respect of taxes or claims for
additional taxes. The Seller has withheld from each payment made to its
employees of the Business the amount of all taxes (including without limitation,
income taxes, payroll taxes and FICA taxes) required to be withheld therefrom
and has paid or made provision for the payment of the same to the proper tax
authorities.
3.20 Broker's and Finder's Fees. No broker is a party to this Agreement;
however, Seller is under an agreement with a broker relating to the sale of the
BTX instrument division of Genetronics, Inc. and will pay any broker's or
finder's fee in connection with the origin, negotiation, execution or
performance of this Agreement.
3.21 Inventories. The Inventories of the Business included in the
Transferred Assets and listed on Schedule 3.21 hereto, consist of items of a
quality and quantity usable and saleable in the normal course of its business.
None of the inventory included in the Transferred Assets is pre-sold or
otherwise on any type of consignment, forward sales contract or other contingent
sale.
3.22 Defaults. The Seller is not in default in any respect under any
contract, agreement or lease material to the Business. No other party to any
contract or agreement material to the Business to which the Seller is a party
and which relates to the Business is in material default under or in material
breach of any material provision thereof.
3.23 Transactions with Management. During the past year, no current
director, officer, or employee of the Business has engaged in any material
transaction with the Business except for the receipt of compensation for
services rendered as an employee.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
4.1 Existence. The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to conduct its business as it is now being
conducted and to own or lease its properties and assets. The Purchaser is duly
qualified or licensed to do business as a foreign corporation, and is in good
standing as a foreign corporation, in every jurisdiction in which the ownership
of the Business's property or assets or the conduct of its business requires
such qualification or license, except where the failure to be so qualified would
not have a material adverse effect to the Purchaser.
4.2 Corporate Power and Authority. The Purchaser has full corporate
power and authority to enter into this Agreement, perform its obligations
hereunder, purchase the Transferred Assets and carry out the transactions
contemplated herein. The execution and delivery of this Agreement, the
performance by the Purchaser of its obligations hereunder and the consummation
of the transactions contemplated herein have been duly authorized by all
corporate, shareholder and other actions on the part of the Purchaser required
by applicable law, its certificate of incorporation and its by-laws. This
Agreement constitutes the legal, valid and binding obligation of the Seller,
enforceable against it in accordance with its terms, except (1) as the same may
be limited by bankruptcy, insolvency reorganization, moratorium or similar laws
now or hereafter in effect relating to creditor's rights generally and (2) that
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefore may be brought.
4.3 No Violation. Neither the execution and delivery of this Agreement
nor the performance by the Purchaser of its obligations hereunder nor the
consummation of the transactions contemplated hereby will (a) contravene any
provision of the certificate of incorporation or by-laws of the Purchaser; (b)
violate, be in conflict with, constitute a default under, permit the termination
of, cause the acceleration of the maturity of any debt or obligation of the
Purchaser under, require the consent of any other party to, constitute a breach
of, create a loss of a material benefit under, or result in the creation or
imposition of any Lien upon any property or assets of the Purchaser under any
mortgage, indenture, lease, contract, agreement, instrument or commitment to
which the Purchaser is a party or by which the Purchaser, or any of its assets
or properties may be bound; (c) to the Purchaser's knowledge, violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority to which the Purchaser is subject or by which the
Purchaser, or any of its assets or properties are bound; (d) result in the loss
of any license, privilege or certificate benefiting the Purchaser; (e) violate
any contract or agreement to which any of the Purchaser's directors, officers or
shareholders are bound; or (f) violate any stock exchange or commission rule or
regulation.
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4.4 Brokers and Finder's Fees. The Purchaser is not a party to, nor in
any way obligated to make any payment relating to, any contract for the payment
of any broker's or finder's fee in connection with the origin, negotiation,
execution or performance of this Agreement.
ARTICLE V
CERTAIN POST CLOSING COVENANTS
5.1 Books and Records; Access.
(a) Unless otherwise consented to in writing by the Seller, for a
period of seven (7) years after the Closing, the Purchaser shall
not destroy, alter or otherwise dispose of any original books or
records of the Business included in the Transferred Assets
without first offering to surrender such books and records to
the Seller and shall maintain such books and records in good
condition in a reasonably accessible location. The Purchaser
shall allow the Seller reasonable access during normal business
hours to examine and copy such books and records.
(b) Unless otherwise consented to in writing by the Purchaser, for a
period of seven (7) years after the Closing, the Seller shall
not destroy, alter or otherwise dispose of any original books or
records of the Business without first offering to surrender such
books and records to the Purchaser and shall maintain such books
and records in good condition in a reasonably accessible
location. The Seller shall allow the Purchaser reasonable access
during normal business hours to examine and copy such books and
records.
5.2 Cooperation. The Seller shall use its best efforts to seek the
consent of customers to assign customer agreements. The Seller shall give prompt
notice to the Purchaser of any written notice from any third party alleging that
the consent of such third party is or may be required in connection with the
transaction contemplated by this Agreement.
5.3 Non-Compete Covenant. Pursuant to an agreement to be executed
contemporaneously herewith, for a period of five (5) years Seller will not (and
will cause Seller's affiliates not to) enter into the research and diagnostics
products business in the markets in which the Business currently competes, or in
the markets in which the Purchaser's current research and diagnostic products
business currently competes or will compete.
5.4 Assets. After the Closing, the Seller shall turn over to the
Purchaser any and all Transferred Assets that are or come into the possession of
the Seller.
5.5 Financial Information. Seller agrees to provide Purchaser with
financial information sufficient to allow Purchaser to prepare any necessary
financial statements concerning the Transferred Assets if required under
accounting Regulation S-X of the U.S. Securities and Exchange Commission.
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ARTICLE VI
CONDITIONS TO CLOSE
6.1 Stockholder Approval. As a condition to the Closing of this
Transaction, Seller must obtain stockholder approval for the sale of the
Transferred Assets by Seller to Purchaser. In the event that such stockholder
approval is not obtained within one hundred twenty (120) days of the signing of
this Agreement by the parties, the parties agree that the transaction
contemplated by this Agreement will be null and void. Alternatively, if approved
in writing by Purchaser and at Purchaser's sole discretion, in lieu of obtaining
stockholder approval, Seller may provide an opinion of legal counsel,
satisfactory to Purchaser, that stockholder approval is not required to complete
and close this transaction. In such case, this Agreement shall be amended
stating that such legal opinion is sufficient to satisfy the requirement of this
paragraph.
6.2 Due Diligence. The parties agree that the Closing of the Transaction
is contingent upon the satisfactory completion of a due diligence review of the
Business and the Transferred Assets by Purchaser. Such due diligence to occur
during business hours.
6.3 Approvals and Consents to Transfer. The Closing is subject to
obtaining any required government approvals and necessary consents to the
assignment of any material contracts.
6.4 Transition Agreement in Place. The Transition Agreement referred to
in Section 8.08 of this Agreement shall be satisfactory to both parties and duly
executed and enforceable between the parties.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
7.1 Survival of Representations and Warranties. Notwithstanding the
making of this Agreement, any examination made by or on behalf of the parties
hereto and the Closing hereunder, the representations and warranties of the
Seller contained in this Agreement or in any agreement or document delivered in
connection with the transactions contemplated by this Agreement shall survive
the Closing as follows:
(a) Claims for breach of any representation or warranty relating to
products liability or environmental matters shall survive this
Agreement indefinitely and there shall be no time limit within
which to bring a claim;
(b) Claims for breach of any representation or warranty relating to
the payment taxes, or compliance with tax laws, whether federal,
state, or local, shall survive this Agreement for the relevant
statute(s) of limitations plus three months;
(c) Claims for breach of any other representation or warranty, not
set forth in Section 7.01 subsections (a) and (b) shall survive
this Agreement for a period of two years.
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7.2 Indemnification. Subject to Section 7.01 above, from and after the
Closing, the Seller and the Purchaser each shall indemnify and save harmless,
the party seeking indemnification and its officers, directors, employees and
advisers (the "Indemnified Party") from and against any loss, claim, liability,
expense (including reasonable attorney's fees) or other damage of any kind or
nature (collectively the "Damages") caused to such party by or arising out of
(1) the failure by the party against which indemnification is sought (the
"indemnifying Party") to perform any covenant or agreement required to be
performed by it in this Agreement or in any agreement or document delivered in
connection with the transactions contemplated by this Agreement; (2) any breach
of warranty or misrepresentation in this Agreement or in any agreement or
document delivered in connection with the transactions contemplated by this
Agreement; or (3) failure of either party to fulfill its obligation regarding
liability as apportioned in Section 1.02 above. The Indemnified Party shall
notify the Indemnifying Party in writing, within the limitations period as set
forth in Section 7.01 above, and in accordance with Section 8.05 below.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Public Announcements. Except as the other party hereto shall
authorize in writing or as required by law, including without limitation,
applicable securities laws, the parties hereto shall not, and shall cause their
respective officers, directors, employees, affiliates and advisors not to
disclose any matter or matters relating to this transaction to any person not an
officer, director, employee, affiliate or advisor of such party. The Purchaser
and Seller shall agree about the content of any statement or communication to
the public or the press prior to issuing any statement or communication to the
public or the press regarding the transactions contemplated by this Agreement.
8.2 Amendment; Waiver. Neither this Agreement, nor any of the terms or
provisions hereof, may be amended, modified, supplemented or waived, except by a
written instrument signed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof, nor shall such waiver constitute a continuing waiver. No
failure of either party to insist upon strict compliance by the other party with
any obligation, covenant, agreement or condition contained in this Agreement
shall operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
8.3 Fees and Expenses. Each of the parties shall bear and pay its own
costs and expenses incurred in connection with the origin, preparation,
negotiation, execution and delivery of this Agreement and the agreements,
instruments, documents and transactions referred to in or contemplated by this
Agreement including, without limitation, any fees, expenses or commissions of
any of its advisors, agents, finders or brokers. The Purchaser shall indemnify
the Seller against any claims of third parties of any brokerage, finder's
agent's or similar fees or commissions in connection with the transactions
contemplated hereby insofar as such claims are alleged to be based on
arrangements or contacts made by, to or with the Purchaser or its respective
advisors or representatives. The Seller shall indemnify the Purchaser against
all such
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claims insofar as they are alleged to be based on arrangements or contacts made
by, to or with the Seller or its advisors or representatives.
8.4 Bulk Transfers Law. The Purchaser hereby waives compliance by the
Seller with the provisions of the bulk transfers law of the State of California.
Nevertheless, in addition to any other indemnities provided in this Agreement,
the Seller shall indemnify and hold the Purchaser harmless from and against any
and all liens claimed against any of the Transferred Assets by any creditor
arising from any credit extended to the Seller prior to the Closing.
8.5 Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and mailed by certified mail, faxed
with a copy by certified mail or delivered by courier with signature required
for delivery:
(i) If to the Seller, to: Genetronics Biomedical Corporation
Genetronics, Inc.
00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxx
Vice President, Legal Affairs
(ii) If to the Purchaser, to: ICN Biomedicals, Inc.
00 Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Fax No. 000 000-0000
Attention: Xxxxx X. Xxxx
President
All notices that are addressed as provided in this Section 8.05 (1) if delivered
personally against proper receipt or by fax with copy by certified mail shall be
effective upon delivery and (2) if delivered by certified by registered mail
with postage prepaid or by Federal Express or similar Courier service with
courier fees paid by the sender shall be effective upon receipt.
8.6 Assignment. This Agreement and all of the provisions hereof shall be
binding and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by the parties hereto without
the prior written consent of the other party. Any assignment that is in
violation of this Section 8.06 shall be void ab initio.
8.7 Promotions or Discount Offers. The Seller agrees not to engage in
any special promotions or discounts of it's products between the date of the
signing of this Agreement and the Closing.
8.8 Transition Agreement. The parties agree to enter into a transition
agreement (the "Transition Agreement") for a period of up to nine months from
the signing of this Agreement or
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March 31, 2002 to enable the Purchaser to effectively transition the Business
functions, including but not limited to the accounting, operations, computer
support, and intellectual property support functions of the Business to
Purchaser.
8.9 Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to its subject matter.
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IN WITNESS WHEREOF, the parties have executed this agreement, effective
as of the date first set forth above.
GENETRONICS BIOMEDICAL CORPORATION
By: /s/ Xxxxx Xxxxxxx, M.D.
----------------------------------------
Xxxxx Xxxxxxx, M.D.
President & Chief Executive Officer
GENETRONICS, INC.
By: /s/ Xxxxx Xxxxxxx, M.D.
----------------------------------------
Xxxxx Xxxxxxx, M.D
President & Chief Executive Officer
ICN Pharmaceuticals, Inc.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Executive Vice President
ICN Biomedicals, Inc.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
President
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