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Exhibit 10.4
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made this 17th day of
April, 2000, by and between Rubicon Medical Corporation ("Rubicon"), a Utah
corporation, and Accurate Designs, Inc., ("Accurate"), a Utah corporation.
WHEREAS, Accurate is engaged in, among other things, the design of
various machinery and equipment for the production of specialized catheter
tips, the production of catheter tips, and other design and production of
equipment for the medical and health care profession; and
WHEREAS, Rubicon is also engaged in the design and production of various
devices and equipment for the medical and health care provision, and it is
desirous of purchasing the assets of Accurate; and
WHEREAS, Accurate owns all of the right, title and interest in the assets
to be conveyed through this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
Purchase of Assets
Section 1.1 Purchased Assets.
Subject to the terms and conditions set forth below, Accurate hereby
sells, assigns, transfers, conveys and delivers to Rubicon, and Rubicon shall
purchase from Accurate all of the rights, title and interest of Accurate in
and to those certain assets, rights, contracts, operations and businesses,
including, but not limited to, intellectual property, that are tangible or
intangible, which are directly or indirectly owned by, leased by, or in the
possession of Accurate, and which are employed or intended to be employed or
held in connection with the business conducted by Accurate, or are necessary
for the continued operation of the business conducted by Accurate. Such
assets shall be free and clear of all liens, claims, charges, security
interests, restrictions, and other encumbrances of any kind or nature, except
those disclosed to Rubicon on Exhibit "A", attached hereto, and liens for
taxes which are not yet due and payable.
Section 1.1.1 Equipment and Product Lines.
All equipment, engineering drawings, engineering designs, and work-in-
progress used to produce catheter tips and associated devices, and all such
equipment, with the exception of items identified in Exhibit "B" attached
hereto, which were employed or held for use in connection with the business
previously conducted by Accurate shall be conveyed to Rubicon.
Section 1.1.2 Contracts.
All contracts, agreements, arrangements, proposals, bids, quotations,
purchase orders and commitments of any kind, whether written or oral,
including any non-competition or confidentiality agreements with present or
past employees of Accurate, which relate to the business previously conducted
by Accurate, with the exception of those contracts, purchase orders and
commitments which are identified in Exhibit "C" attached hereto are conveyed
by this Agreement.
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Section 1.1.3 Patents, Inventions and Intellectual Property.
All rights and interest of Accurate in and to patents, patent
applications, intellectual property, engineering designs, proposals, concepts
and works-in-progress which were developed through the conduct of the business
previously conducted by Accurate are similarly conveyed to Rubicon.
Section 1.1.4 Trademarks.
All rights, interest and good will of Accurate in and to trademarks,
trade names and service marks, and registrations and applications for such
trademarks, trade names and service marks relating to the business previously
conducted by Accurate are conveyed to Rubicon.
Section 1.1.5 Inventory.
All items of inventory and related supplies which were employed by, or
held for use in connection with, the business previously conducted by
Accurate, with the exception of those items set forth in Exhibit "D".
ARTICLE II
Closing and Purchase Price
Section 2.1 Closing.
The closing shall take place on April _____, 2000, at the offices of
Rubicon.
Section 2.2 Purchase Price.
2.2.1 General.
The purchase price for the assets is Two Million Dollars
($2,000,000.00) (the "Purchase Price"), shall be paid as follows:
1. At the closing, Rubicon shall pay and deliver to Accurate, or its
designee, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).
2. On a date six (6) months following the closing date, Rubicon will
pay an additional Two Hundred Fifty Thousand Dollars ($250,000.00) to
Accurate.
3. On a date one year from the date of closing, Rubicon will pay to
Accurate an additional Two Hundred Fifty Thousand Dollars ($250,000.00).
4. On a date eighteen (18) months following the date of closing,
Rubicon will pay to Accurate a final cash payment in the amount of Two Hundred
Fifty Thousand Dollars ($250,000.00).
5. On a date sixty (60) days following the public trading of Rubicon
stock (after completion of a Plan of Reorganization), or whenever three market
makers provide quotes for Rubicon stock, whichever occurs first, Rubicon will
place with Accurate share certificates representing a number of restricted
shares equal in value to Seven Hundred Fifty Thousand Dollars ($750,000.00),
the valuation to be based on fifty percent (50%) of the average bid price on
the date of issuance of those certificates, to secure the payments set forth
above. The Rule 144 holding period for those shares will commence on the day
of closing. Those shares may not be sold, transferred, encumbered or
hypothecated absent a default in payment by Rubicon.
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6. At the time of the second payment in the amount of Two Hundred Fifty
Thousand Dollars ($250,000.00), six months after closing, Accurate will
release to Rubicon or its assigns shares valued at Two Hundred Fifty Thousand
Dollars ($250,000.00), valuation to be based on the initial value placed on
those shares at the time of the issuance of share certificates to Accurate.
7. At the time of the third payment in the amount of Two Hundred Fifty
Thousand Dollars ($250,000.00), one year after closing, Accurate will release
to Rubicon or its assigns shares valued at Two Hundred Fifty Thousand Dollars
($250,000.00), valuation to be based on the initial value placed on those
shares at the time of the issuance of share certificates to Accurate.
8. At the time of the fourth payment in the amount of Two Hundred
Fifty Thousand Dollars ($250,000.00), eighteen (18) months after closing,
Accurate will release to Rubicon or its assigns shares valued at Two Hundred
Fifty Thousand Dollars ($250,000.00), valuation to be based on the initial
value placed on those shares at the time of the issuance of share certificates
to Accurate.
9. On a date one year from the date of closing, Rubicon will transfer
to Accurate, or its assigns, restricted Rubicon shares with a value in the
amount of One Million Dollars ($1,000,000.00), based on fifty percent (50%) of
the bid price on the date of transfer. The Rule 144 holding period for those
shares shall begin on a date one year from the date of closing.
ARTICLE III
Representations and Warranties of Seller
Accurate hereby represents and warrants to Rubicon, as of the date
hereof, as follows:
Section 3.1 Organization of Seller.
Accurate is a corporation duly formed and validly existing and in good
standing under the laws of the State of Utah, and has the requisite corporate
power and authority to own and convey the assets subject to this Agreement.
Section 3.2 Authority.
Accurate has all requisite corporate power and authority to enter into
and perform this Agreement, and to consummate the sale of its assets to
Rubicon. This Agreement is a valid and binding obligation of Accurate and is
enforceable in accordance with its terms.
Section 3.3 Title.
Accurate has good, valid and marketable title to, or in, all of the
assets which it purports to own and which are conveyed by this Agreement.
Section 3.4 Intellectual Property.
The Accurate patents, inventions, intellectual property, works in
progress, engineering drawings, concepts and other designs for the design and
manufacture of equipment used to produce medical devices, including catheter
tips, all of which are conveyed pursuant to this Agreement, are each the sole
property of Accurate. Accurate owns that intellectual property free and clear
of all encumbrances, claims and rights of any other parties. The intellectual
property conveyed through this Agreement does not violate any patents, patent
license, patent application, or any trade secret of any other party.
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Section 3.5 Litigation.
There are no claims, actions, suits, hearings or any other judicial or
administrative proceedings pending against Accurate which would, in any way,
affect its ability to convey free and clear title to the assets subject to
this Agreement.
Section 3.6 Taxes.
All tax liabilities of Accurate for payroll, employee, and all other
tax liabilities not disclosed in Exhibit "E", shall remain with Accurate, and
Accurate hereby indemnifies Rubicon against those liabilities.
Section 3.7 Contingent Liabilities.
Accurate retains any and all liability for its undisclosed existing
and contingent liabilities of any nature, known or unknown, and hereby
indemnifies Rubicon against any such existing, but unknown, contingent
liabilities.
Section 3.8 Non-Compete.
Accurate hereby acknowledges that it will not, for a period of five
(5) years, compete with Rubicon in the business formerly conducted by
Accurate, and that it will not, for that period, contact or solicit business
from its former customers.
Section 3.9 - Disclosure.
Accurate has supplied all material information to Rubicon concerning
the purchase of the assets, the value of the assets, and the liabilities of
Accurate.
Section 3.10 Representations Concerning Stock.
Accurate understands that the common stock of Rubicon that may be
issued pursuant to this Agreement is not currently registered under the
Securities Act of 1933, as amended, and will be issued to Accurate on the
grounds that the issuance will be exempt from registration under the
Securities Act pursuant to Section 4(2) thereof, and Rubicon's reliance on
such exception is based on Accurate's representations set forth herein.
Accurate acknowledges that the stock should be issued to it in reliance on its
representations, that the stock shall be required for investment, for
Accurate's own account, not as a nominee or agent, and not with a view to the
re-sale or distribution of any part of that stock, and that Accurate has no
present intention of selling, granting any participation in, or otherwise
distributing the same. Accurate has no contact, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to any
third person with respect to any of the stock. Accurate has had an
opportunity to ask questions and receive answers from Rubicon regarding its
business, properties, prospects, management and financial condition, and has
sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the risk and merits of an investment in Rubicon, and
is capable of bearing the economic risks of such an investment.
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Section 3.11 Restrictions on Transfer.
Accurate understands that the stock to be issued by Rubicon may not be
sold, transferred, or otherwise disposed of without registration under the
Securities Act, or an exemption therefrom, and that in the absence of an
effective registration statement covering the stock, or an exemption
therefrom, the common stock may be required to be held by Accurate
indefinitely.
Section 3.12 Legend.
To the extent applicable, each certificate or other document
evidencing the common stock shall be endorsed with the legend set forth below:
The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, or under the securities laws of any state
or other jurisdiction, and may not be sold, transferred, assigned, pledged or
hypothecated unless and until registered under such Act and applicable state
securities laws, or unless the Company has received an opinion of counsel or
other evidence satisfactory to Company and its counsel that such registration
is not required.
Section 3.13 Brokers.
Accurate has not paid, or become obligated to pay, any fee or
commission to any broker, finder, investment banker or other intermediary in
connection with the transactions contemplated by this Agreement.
ARTICLE IV
Representations and Warranties of Rubicon
Rubicon hereby represents and warrants to Accurate, as of the date
hereof, as follows:
Section 4.1 Organization.
Rubicon is a corporation duly incorporated and is validly existing in
and in good standing under the laws of the State of Utah, and has the
requisite corporate power and authority to own, purchase, and lease the assets
which will be conveyed by this Agreement.
Section 4.2 Corporate Authorization.
Rubicon has all requisite corporate power and authority to enter into,
and perform, this Agreement, and to consummate the transactions contemplated
by it. This Agreement is a valid and binding obligation of Rubicon,
enforceable in accordance with its terms.
Section 4.3 Authorization of Common Stock.
The shares of common stock to be issued by Rubicon, or its successor,
to Accurate, pursuant to this Agreement, will be duly authorized and reserved
for issuance of Accurate and will be fully paid and non-assessable.
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ARTICLE V
General Provisions
Section 5.1 Survival of Representations and Warranties.
All representations and warranties contained herein shall not be
deemed to be waived or otherwise affected by any prior knowledge of, or any
investigation made by, or on behalf of, any party to this Agreement. Each and
every such warranty and representation shall survive closing and remain in
full force and effect.
Section 5.2 Covenants and Indemnification Provisions.
Each covenant and each indemnification provision contained herein
shall survive closing and remain in full force and effect in accordance with
its terms until the obligations arising thereunder have been fully performed
and discharged.
Section 5.3 Bulk Sales Laws.
Rubicon and Accurate hereby waive compliance by the other, with any
applicable bulk sales laws with respect to, or requiring, notice to any of
Accurate's creditors.
Section 5.4 Confidentiality.
Except for such documents, reports, information and data which are, or
hereafter become, of a public nature, Rubicon and Accurate shall treat as
confidential, and, except as otherwise required in connection with the
consummation of the transaction set forth in this Agreement, or except as
compelled to be disclosed by the judicial or administrative process, or in the
opinion of their respective counsel, by other requirements of law, and will
not use, submit or disclose to, or file with others, or permit any person,
firm, corporation or entity under their respective control to use, submit or
disclose to others any documents, reports, information or data concerning
Accurate or Rubicon.
Section 5.5 Amendments.
This Agreement shall not be amended or modified except by writing duly
executed by Accurate and Rubicon.
Section 5.6 Entire Agreement.
This Agreement, including the exhibits hereto, contains all of the
terms, conditions and representations and warranties agreed upon by the
parties relating to the subject matter of this Agreement, and supercedes all
prior and contemporaneous agreements, negotiations and communications, whether
written or oral, respecting the subject matter of this Agreement.
Section 5.7 Notices.
All notices, requests, demands and other communications made in
connection with this Agreement shall be in writing and shall be deemed to have
been duly on the date of delivery, if delivered by hand or by facsimile, or by
e-mail, to the persons identified below, or three (3) days after mailing, if
mailed by certified or registered mail, postage pre-paid, return receipt
requested, addressed as follows:
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To Rubicon: Rubicon Medical Corporation
c/o Xxxxx Xxxxxx
000 Xxxx 00000 Xxxxx
Xxxxxx, Xxxx 00000
With a copy to: Xxxxx X. Xxxx
XXXX, XXXX & XXXXXXXXX
00 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile: (000) 000-0000
e-mail: xxxxx@xxxxxxxxx.xxx
To Accurate: Accurate Designs, Inc.
00000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxx 00000
Such addresses may be changed from time-to-time, by means of a notice
given in the manner provided in this Section.
Section 5.8 Severability.
If any provision of this Agreement is held to be unenforceable, for any
reason, it shall be adjusted, rather than voided, if possible, in order to
achieve the intent of the parties to this Agreement to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the fullest extent possible.
Section 5.9 Arbitration.
All disputes concerning this Agreement shall be submitted to arbitration
before, and in accordance with, the Commercial Arbitration Rules of the
American Arbitration Association. All issues relating to arbitrability or the
enforcement of this Agreement to arbitrate contained herein shall be governed
by the Federal Arbitration Act (9 U.S.C. section 1, et seq.). Judgment upon an
arbitration award may be entered in any court having competent jurisdiction,
and shall be final, binding and non-appealable. The parties hereto hereby
waive, to the fullest extent permitted by law, any right to claim any punitive
or exemplary damages against the other.
Section 5.10 No presumption.
In interpreting any provision of this Agreement, no presumption shall be
drawn against the party drafting a provision.
RUBICON MEDICAL CORPORATION: ACCURATE DESIGNS, INC.
By /s/ By /s/
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Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxxx
Its President/Chief Executive Officer Its President
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Date April 17, 2000 Date April 17, 2000
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