Asset Purchase Agreement
EXHIBIT 10.10
This Asset Purchase Agreement (this “Agreement”), made and entered into as of the 29th day of September, 2014 and effective on the date of the Closing (as defined below) (the “Effective Date”), by and between Xxxxxxx Xxxxx, ID number 26858571 ("Seller"), and ESQURE ADVANCED MEDICAL DEVICES LTD, organized under the laws of the State of Israel and a subsidiary of E-QURE Corp., a Delaware corporation. Purchaser is sometimes referred to as the "Purchaser." The Purchaser and the Seller shall be referred to individually, as a "Party" and collectively, as the "Parties."
WITNESS:
WHEREAS, the Parties wish, subject to and conditional upon all the Conditions
Precedent (hereinafter defined) with the terms set forth in this Agreement,
according to which the Purchaser will purchase all Seller's BST assets; and
WHEREAS, Seller shall sell all said BST assets to the Purchaser and Purchaser
will pay Seller for the BST assets under the terms set forth in this Agreement;.
NOW, THEREFORE, subject to the terms and conditions hereof, in consideration of the mutual covenants contained herein, the Parties agree as follows:
1. Preamble and Interpretation
1.1. The preamble to this Agreement, the warranties of the Parties thereto and
its annexes constitute an integral part thereof.
1.2. The subdivision of this Agreement into sections and annexes, as well as
section titles hereunder, are for convenience purposes only, and shall not
affect its interpretation.
2. Definitions
2.1. "Conditions Precedent" means all of the conditions set forth in Section 4
below.
2.2. "Closing" Means the signing of a legally binding documents related to the
transaction between the Parties following all the condition precedent (as
defined below) being satisfied.
2.3. "Closing Date" means not later than September 23rd, 2014.
2.4. "Trustee" means Adv. Xxxxxx Xxxxxx, 0 Xxxxxxxxx Xx. Xxxxx-Xxx, Xxxxxx.
2.5. "BST Assets" means all assets held either by Seller, or by the manufacturer
AS-IS as declared below:
a. All medical research data held by research partners, distributors and
marketing advisors in Israel and abroad;
b. All manufacturing files, in the form of paper files or computer files;
c. All manufacturing files of BST electronic device, including Mechanical and
Electronics Schemes drawings, Printed Circuit Boards Graphics, Bills of
Materials, etc;
d. All manufacturing files of all types of BST electrodes;
e. All design Files of Communicating BST & electrodes models. In this model the
BST and electrode exchange treatment count information, and limit the maximum
count of treatments per electrode;
f. All design Files of a rechargeable BST model;
g. All testing Equipment and Devices for BST manufacturing;
h. PowerLab Devices- pieces of equipment; including PowerLabs placed by Lifwave
at partners sites worldwide
i. BST devices and electrodes, held by distributors, Doctors, Hospitals etc.
worldwide;
j. Main Server of LIFEWAVE Ltd, holding all marketing Medical and manufacturing
material;
k. Injection Molds for the plastic parts of BST device.
3. The Transaction
3.1 Seller hereby sells all its BST assets to Purchaser;
3.2 Seller will receive from Purchaser payments of 350,000 USD at Closing.
3.3 Seller will transfer to Purchaser all BST assets and rights free and clear
of any commitments or liabilities.
4. Closing
Each party will fulfill its obligations upon signing this Agreement. For the avoidance of any doubt, Seller approves, upon signing this Agreement, that he received full payment of the amount of $350,000.
5. Confidential Information
5.1 Definition and Use. Pursuant to this Agreement, each party may disclose to
the other certain proprietary technical or business information or materials
(“Confidential Information”). Each party agrees that it will not use any
Confidential Information received from the other except for the purposes of this
Agreement and agrees not to disclose any such Confidential Information to third
Parties, and to maintain and follow reasonable procedures to prevent
unauthorized disclosure or use of the Confidential Information received from the
other party and to prevent it from falling into the public domain or the
possession of unauthorized persons. Without limiting the generality of the
foregoing, each party agrees to disclose to its employees only such Confidential
Information as is necessary to each employee’s responsibilities in performing
the acts allowed by this Agreement. Each party shall promptly advise the
disclosing party of any disclosure, loss or use of Confidential Information in
violation of this Agreement after becoming aware of the same. The Parties agree
that the terms and conditions of this Agreement constitute Confidential
Information. Each party agrees that its confidentiality obligations hereunder
shall survive for a period of Three (3) years after this Agreement.
5.2 The Parties' obligations in section 5.1 are subject to applicable rule and
regulations.
5.3 The Purchaser's duty to report according to the provision of the law.5
5.4 Exclusions: Confidential Information shall not include information:
5.4.1 That becomes lawfully known or available to the receiving party from a
source other than the disclosing party without breach of any confidentiality
obligation under this Agreement;
5.4.2 That was already known to the receiving party, as shown by written
records, before its disclosure by the disclosing party;
5.4.3 Developed independently by the receiving party without the use or
consideration of or reference to the Confidential Information;
5.4.4 That is within, or later falls within, the public domain without breach of
this Agreement;
5.4.5 Publicly disclosed with the written approval of the disclosing party; or
5.4.6 Disclosed pursuant to the requirement or demand of a lawful governmental
or judicial authority, but only to the extent required by operation of law,
regulation or court order provided, however, that the receiving party shall
provide prompt notice of such court order or requirement to the disclosing party
to enable the disclosing party to seek a protective order or otherwise prevent
or restrict such disclosure.
6. Indemnification
6.1. Seller shall hold harmless, defend and indemnify Purchaser, its directors
officers, employees and assigns from and against any liability, damage, loss or
expense (including reasonable attorney’s fees and expenses of litigation)
claims, demands or causes of action whatsoever that a court of last resort has
ruled is caused by, arising out of, or resulting from, (i) any breach of any
representation or warranty by Seller under this Agreement and/or (ii) the
exercise of its rights granted under this Agreement.
6.2. Purchaser shall hold harmless, defend and indemnify Seller against any
liability, damage, loss or expense (including reasonable attorney’s fees and
expenses of litigation) claims, demands or causes of action whatsoever that a
court of last resort has ruled is caused by, arising out of, or resulting from,
(i) any breach of any representation or warranty by Purchaser under this
Agreement and/or (ii) the exercise of its rights granted under this Agreement.
6.3. The indemnification obligations of each of the indemnitor Parties above are
conditioned upon: (a) prompt notice by the indemnitee to the indemnitor of the
cause of action for any claim; (b) the indemnitor having sole control of the
defense of the claim and the settlement thereof, provided that no settlement
shall be made without the prior written consent of the indemnitee which consent
shall not be unreasonably withheld and provided that the indemnitor diligently
pursues the defense of such claim; and (c) the indemnitee provides reasonable
assistance and cooperation as requested by indemnitor at indemnitor's expense.
7. Term and Termination
7.1. Term. This Agreement shall commence on the Effective Date and continue in
full force and effect, unless terminated in accordance with the terms of this
Agreement ("Term").
7.2. Termination for Cause. Either Party may terminate this Agreement effective
upon written notice to the other party in the event the other Party materially
breaches this Agreement, and such breach remains uncured for forty-five (45)
days following written notice of such breach by the non-breaching Party, unless
such breach is incurable in which event termination shall be immediate upon
receipt of written notice.
7.3. Termination for Insolvency. Until Closing, the Trustee may terminate this
Agreement by written notice, (i) upon the institution by or against Purchaser
insolvency, receivership or bankruptcy proceedings, (ii) Purchaser making a
general assignment for the benefit of creditors. .
7.4. In any event depicted above in section 7.3, the Trustee is granted
exclusive and full right to terminate the Agreement.
8. Warranties and Representations
8.1. Seller Representations. Seller warrants and represents that it has the
authority and right to execute, enter into, and perform this Agreement and that
it has no conflicting Agreements which prevent it from fulfilling its
responsibilities enumerated herein.
8.2. Purchaser Representations. Purchaser warrants and represents that it has
the authority and right to execute, enter into, and perform this Agreement and
that it has no conflicting Agreements which prevent it from fulfilling its
responsibilities enumerated herein.
9. General Provisions
9.1. Independent Contractors: The relationship established between the Parties
by this Agreement is that of independent contractors. Nothing in this Agreement
shall be construed to constitute the Parties as partners, joint ventures,
co-owners or otherwise as participants in a joint or common undertaking for any
purpose whatsoever.
9.2. Governing Law; Jurisdiction. The rights and obligations of the Parties
under this Agreement shall be governed by and construed in accordance with laws
of the State of Israel, without regard to conflicts of laws principles. Any
dispute arising out of or in connection with this Agreement shall be brought
exclusively in, and each Party irrevocably consents to the personal and
exclusive jurisdiction and venue of the applicable court in the Tel Aviv Jaffa
District/ of the court of Israel.
9.3. Amendment. The terms and conditions of this Agreement may only be amended
by a writing signed by both Parties.
9.4. No Waiver. Except as expressly provided herein, the rights and remedies
herein provided shall be cumulative and not exclusive of any other rights or
remedies provided by law or otherwise. Failure by either party to detect,
protest, or remedy any breach of this Agreement shall not constitute a waiver or
impairment of any such terms or condition or the rights of such party at any
time to avail itself of such remedies as it may have for any breach or breaches
of such term or condition. Waiver may only occur pursuant to the express written
permission of an authorized officer of the party against whom the waiver is
asserted.
9.5. Severability. In the event any term, condition or provision of this
Agreement is declared or found by a court of competent jurisdiction to be
illegal, unenforceable or void, the Parties shall endeavor in good faith to
agree to amendments that will preserve, as far as possible, the intentions
expressed in this Agreement. If the Parties fail to agree on such amendments,
such invalid term, condition or provision shall be served from the remaining
terms, conditions and provisions, which shall continue to be valid and
enforceable to the fullest extent permitted by law.
9.6. Notices. Any notice required or permitted under this Agreement or required
by law must be in writing and must be (i) delivered in person (ii) sent by
registered or certified mail, postage prepaid, or (iii) sent by overnight
courier such as FedEx or DHL to the addresses first written above, provided that
a copy is always sent by e-mail which shall not be considered formal notice
hereunder. The e-mail address of Seller is: Xxxxxxxxxxx00@xxxxx.xxx. And the
e-mail address of Purchaser is: xxx@x-xxxx.xxx .Notices will be deemed to have
been given at the time of actual delivery in person, five (5) business days
after deposit in the mail as set forth herein, or one (1) business day after
delivery to an overnight courier service.
9.7. Force Majeure. Neither party will be liable to the other for any default
hereunder (excluding any payment obligations) resulting from delay or failure to
perform all or any part of this Agreement in such delay or failure is caused, in
whole or in part, by events, occurrences or causes beyond the reasonable control
of such party, Such events include, without limitation, acts of God strikes,
lockouts, riots, acts of war, earthquakes, floods and fire, but the inability to
meet financial obligations is expressly excluded.
9.8. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
9.9. Entire Agreement. This Agreement, including all attachments, all of which
this Agreement incorporates by reference, sets forth the entire Agreement and
understanding between the Parties and supersedes and cancels all previous
negotiations, Agreements and commitments, whether oral or in writing, with
respect to the subject matter described herein, and neither party shall be bound
by any term, clause, provision, or condition save as expressly provided in this
Agreement or as duly set forth in writing as a subsequent amendment to this
Agreement, signed by duly authorized officers or each party.
IN WITNESS HEREOF, the Parties have caused their duly authorized representatives to enter into this Asset Purchase Agreement, effective as of the signing date.
SELLER:
/s/ Xxxxxxx Xxxxx
Print Name: Xxxxxxx Xxxxx
ESQURE ADVANCED MEDICAL DEVICES LTD
/s/:Xxxx Xxxxx
Print Name: Xxxx Xxxxx
Title: CEO /s/: Xxxxxxx Xxxxx
