EXHIBIT 99.2
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of
April 29, 2002, is made and entered into by and among Vascular Solutions, Inc.,
a Minnesota corporation ("Buyer"), and the secured parties listed on the
signature page hereto (the "Secured Parties").
RECITALS
WHEREAS, the Secured Parties made a loan to Angiosonics, Inc.
("Angiosonics") in the original aggregate principal amount of Two Million, Five
Hundred and Seven Thousand Three Hundred and Sixty Dollars, evidenced in part by
certain convertible promissory notes (the "Notes");
WHEREAS, the obligations of Angiosonics under the Notes (the
"Indebtedness") were secured, in part, by a general business security agreement
(as amended, the "Security Agreement") dated as of February 19, 2001 which
granted to the Secured Parties a security interest in, among other things, all
of Angiosonics' inventory, equipment, accounts and general intangibles and
products and proceeds thereof, and (b) a Patent Security Agreement (the "Patent
Security Agreement") dated as of December 6, 2001, and a related Assignment for
Security, which granted to the Secured Parties a security interest in, among
other things, all of Angiosonics' Patents (as defined therein) (all of the
foregoing property, the "Collateral").The security interest in favor of the
Secured Parties in the Collateral was perfected by the filing of various
financing statements with the North Carolina and Delaware Secretaries of State,
and an assignment of the Patents for security was filed with the United States
Patent and Trademark Office;
WHEREAS, Angiosonics has defaulted under the terms of the
Notes. As of the date hereof, Angiosonics' Indebtedness is approximately
$2,500,000.00 plus accrued interest and costs and expenses allowed pursuant to
the terms of the Notes;
WHEREAS, Angiosonics, is engaged in, among other things, the
business of developing, manufacturing, marketing and selling a medical device
for intravascular lysis utilizing ultrasonic technology (the "Business"); and
WHEREAS, the Secured Parties wish to sell, and Buyer wishes to
buy, certain assets of Angiosonics included in the Collateral described herein
in a manner pursuant to the provisions of the Uniform Commercial Code as now in
effect in the State of North Carolina (the "UCC") on the date on which all
conditions precedent specified in Section 6 below have been satisfied (or waived
by the applicable party).
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements and the conditions set forth in this
Agreement, Buyer and the Secured Parties hereby agree as follows:
ARTICLE I
TRANSFER OF ASSETS; ASSUMPTION OF LIABILITIES
1.01 Transfer of Assets. On the terms and subject to the
conditions set forth in this Agreement, the Secured Parties shall, at the
Closing (as defined in Section 3.01 hereof), sell, transfer and assign to Buyer,
and Buyer shall purchase and acquire from the Secured Parties, all of
Angiosonics' right, title and interest, as of the Closing Date (as defined in
Section 3.01 hereof), in and to all of the assets of Angiosonics comprising
Collateral related to, or used by Angiosonics in conjunction with, the Business
(collectively, the "Assets"), as listed below:
(a) Assignment of the entire right, title and interest to (i)
US Patent No. 5,163,421, "In Vivo Ultrasonic System with Angioplasty
and Ultrasonic Contrast Imaging," (ii) US Patent No. 5,269,297,
"Ultrasonic Transmission Apparatus," (iii) US Patent No. 5,971,949,
"Ultrasound Transmission Apparatus and Method of Using Same," and (iv)
US Patent No. 6,241,703 Ultrasound Transmission Apparatus Having a
Tip," (the "Patents" and jointly the "Acolysis System"), as well as any
and all international counterparts, continuations, divisional,
reexaminations, and reissues claiming priority to any of the Patents,
and the rights to institute or maintain any action or investigation for
and to recover damages for any past infringement thereof or any actions
of unfair competition relating thereto;
(b) An irrevocable, royalty free worldwide exclusive license
(the "Invasive Technology License") to use, sell, make and have made
all products and apparatus in connection with invasive thrombolysis
treatment in the vascular coronary and peripheral systems, of the
technology and inventions underlying (i) US Patent No. 6,113,558,
"Pulsed Mode Lysis Method," and (ii) US Patent No. 5,984,882 Methods
for Prevention and Treatment of Cancer and Other Proliferate Diseases
with Ultrasonic Energy," as well as any and all international
counterparts, continuations, divisional, reexaminations, and reissues
claiming priority to any of these patents, with the terms of this
Invasive Technology License described in Article VIII herein;
(c) All rights in and to all trade secrets, copyrights and
other Non-patent intellectual property related to Angiosonics' Acolysis
System, as it relates to invasive thrombolysis;
(d) All rights in and to the Acolysis trademark and any other
trademarks presently used with Angiosonics' Acolysis System (to the
extent such exist);
(e) All inventory, work-in-process and raw components for the
base unit, probe, transducer, horn and all other components for
Angiosonics' Acolysis System as listed on Schedule 1.01(e);
(f) All fixtures for the manufacture, production, packaging,
service and repair of Angiosonics' Acolysis System as listed in
Schedule 1.01(f);
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(g) All documentation, records, manufacturing processes,
prints, validation (including software validation), test reports and
all other records of the design, development, testing, manufacture and
sale of Angiosonics' Acolysis System and any predecessors or
modifications to the Acolysis System;
(h) All base units of Angiosonics' Acolysis System that have
been installed in the field under any lease, deferred payment, or
commitment program to the extent of any remaining ownership by
Angiosonics; provided, however, that no liability or indemnification
may be asserted against the Secured Parties for any payments due to or
from such holders of possession of such systems, their use or their
condition; and
(i) All rights to any regulatory approvals, including FDA
applications for approval and CE Xxxx approvals and applications for
approval, directed to use of Angiosonics' Acolysis System for invasive
use in a medical procedure, together with all documentation, filings,
correspondence and other materials related to such approvals or
applications.
1.02 Excluded Liabilities. Buyer shall not assume, and nothing
contained in this Agreement shall be construed as an assumption by Buyer of, any
liabilities, obligations or undertakings of the Secured Parties or Angiosonics
of any nature whatsoever, whether accrued, absolute, fixed or contingent, known
or unknown due or to become due, unliquidated or otherwise. Angiosonics shall be
responsible for all of the liabilities, obligations and undertakings of
Angiosonics.
ARTICLE II
PURCHASE PRICE
2.01 Amount. The total purchase price (the "Purchase Price")
for the Assets shall be One Million Five Hundred Thousand Dollars ($1,500,000).
2.02 Manner of Payment. Buyer shall pay the Purchase Price to
Xxxxxxxxxx Xxxxx Trust Co. Ltd, as agent for the Secured Parties (the "Agent")
on the Closing Date by wire transfer of immediately available funds to such
account or accounts as Agent may designate in writing to Buyer no later than two
business days before the Closing Date.
2.03 Allocation of Purchase Price. Buyer has allocated the
Purchase Price among the Assets as set forth on Exhibit A hereto, which exhibit
shall be updated as of the Closing Date in such a manner as determined by Buyer
after taking into account any appraisals which may be obtained by Buyer, the
applicable Treasury Regulations and the fair market value of such items. The
Secured Parties hereby, for tax purposes, accept the allocation of the Purchase
Price as set forth on Exhibit A and hereby covenant and agree that they will not
take any position inconsistent with such allocation with any taxing authority.
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ARTICLE III
CLOSING
3.01 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") will take place at the offices of Xxxxxx &
Xxxxxxx LLP, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx at 10:00 a.m. on
April 29, 2002 or at such other place and on such other date as is mutually
agreeable to Buyer and the Secured Parties after all of the closing deliveries
set forth in Article VI hereof have been made (or waived by the party entitled
to the benefit of such deliveries). The date on which the Closing occurs is
referred to herein as the "Closing Date," and the Closing shall be deemed
effective as of 10:00 a.m., Minneapolis time, on the Closing Date.
3.02 General Procedure. At the Closing, each party shall
deliver to the party entitled to receipt thereof the documents required to be
delivered pursuant to Article VI hereof and such other documents, instruments
and materials (or complete and accurate copies thereof, where appropriate) as
may be reasonably required in order to effectuate the intent and provisions of
this Agreement, and all such documents, instruments and materials shall be
satisfactory in form and substance to counsel for the receiving party. The
conveyance, transfer, assignment and delivery of the Assets shall be effected by
the Secured Parties' execution and delivery (or Agent's execution and delivery
on behalf of any non-signatory Secured Party) to Buyer of a xxxx of sale
substantially in the form attached hereto as Exhibit B (the "Xxxx of Sale") a
patent assignment substantially in the form attached hereto as Exhibit C (the
"Patent Assignment"), a trademark assignment substantially in the form attached
hereto as Exhibit D (the "Trademark Assignment"), and such other instruments of
conveyance, transfer, assignment and delivery as Buyer shall reasonably request
to cause the Secured Parties to transfer, convey, assign and deliver the Assets
to Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SECURED PARTIES
The Secured Parties hereby severally (with the representations
being deemed made separately by each Secured Party and, as applicable, only
relating to the Secured Party making such representation and warranty) represent
and warrant to Buyer the following, with all other representations and
warranties, whether expressed, implied, or arising by operation of law, and
including, without limitation, any warranty of merchantability or fitness for a
particular purpose being disclaimed:
4.01 Incorporation and Corporate Power. Each Secured Party
that is not a natural person is either (i) a limited partnership or (ii) a
corporation, organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has all requisite corporate or limited
partnership power and authority and all corporate or limited partnership
authorizations to execute, deliver and perform all of its respective obligations
under this Agreement.
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4.02 Execution, Delivery; Valid and Binding Agreement. The
execution, delivery and performance of this Agreement by each Secured Party that
is not a natural person and the consummation of the transactions contemplated
hereby have been duly and validly authorized by such Secured Party's Board of
Directors or partners (as applicable), and no other corporate or limited
partnership proceedings on the part of any party are necessary to authorize the
execution, delivery and performance of this Agreement. This Agreement has been
duly executed and delivered by the Secured Parties and, assuming that this
Agreement is the valid and binding agreement of Buyer, constitutes the valid and
binding obligation of the Secured Parties, enforceable in accordance with its
terms.
4.03 Authority; No Breach. The Secured Parties that are not
natural persons have the requisite corporate or other entity power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution, delivery and performance of this Agreement by each of the Secured
Parties and the consummation of the transactions contemplated hereby do not
conflict with or result in any breach of any of the provisions of, or constitute
a default under, result in a violation of, result in the creation of a right of
termination or acceleration or any lien, security interest, charge, or
encumbrance upon any of the Assets or require any authorization, consent,
approval, exemption or other action by or notice to any court or other
governmental body, under the provisions of the organizational documents of the
Secured Parties or any indenture, mortgage, lease, loan agreement or other
agreement or instrument by which the Secured Parties are bound or affected
(other than consents required under Section 6.01(i) hereof), or any law,
statute, rule or regulation or order, judgment or decree to which the Secured
Parties are subject.
4.04 Governmental Authorities; Consents. The Secured Parties
are not required to submit any notice, report or other filing with any
governmental authority in connection with the execution or delivery by it or him
of this Agreement or the consummation of the transactions contemplated hereby
due to the specific nature or attributes of such Secured Party. No consent,
approval or authorization of any governmental or regulatory authority is
required to be obtained by any of the Secured Parties in connection with its or
his execution, delivery and performance of this Agreement due to the specific
nature or attributes of such Secured Party.
4.05 Right to Foreclose; No Prior Transfers by Secured
Parties. Each Secured Party severally represents and warrants that the Secured
Parties as a group possess the right and power to foreclose upon the Assets and
transfer them to the Buyer. The Secured Parties also have not heretofore sold,
assigned, transferred or otherwise encumbered any or all of their right and
interest in the Assets.
4.06 Tax Matters.
(a) To the Secured Parties knowledge, there are no liens for
Taxes upon any of the Assets, and no proceedings have been commenced by
any federal or state agency to create or impose any liens for Taxes
upon any of the Assets.
(b) For purposes of this Agreement, the term "Taxes" means all
taxes, charges, fees, levies, or other assessments, including, without
limitation, all net income, gross income, gross receipts, sales, use,
ad valorem, transfer, franchise, profits, license, withholding,
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payroll, employment, social security, unemployment, excise, estimated,
severance, stamp, occupation, property, or other taxes, customs duties,
fees, assessments, or charges of any kind whatsoever, including,
without limitation, all interest and penalties thereon, and additions
to tax or additional amounts imposed by any taxing authority, domestic
or foreign, upon Angiosonics.
4.07 Litigation. To the Secured Parties' knowledge, except for
the demand made on behalf of Lipolisys, Inc. on April 19, 2002, a copy of which
as been given to the Buyer, there are no actions, suits, proceedings, orders or
investigations pending or threatened against Angiosonics concerning the Assets
at law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign which would be reasonably expected to in any way interfere
with the consummation of the transactions contemplated by this Agreement, effect
the right and title of the Buyer to the Assets or expose the Buyer to any
liability arising from ownership of the Assets.
4.08 No Stay of Action. To the Secured Parties' knowledge, no
stay, injunction, or order or decree of similar effect by any court or
governmental entity having jurisdiction over Angiosonics or the Secured Parties
is in effect prohibiting the Secured Parties from foreclosing on the Assets and
selling such Assets to Buyer.
4.09 Brokerage. No third party shall be entitled to receive
any brokerage commissions, finder's fees, fees for financial advisory services
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Secured Parties.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Secured Parties
that:
5.01 Incorporation and Power. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Minnesota, with the requisite corporate power and authority to enter into
this Agreement and perform its obligations hereunder.
5.02 Execution, Delivery; Valid and Binding Agreement. The
execution, delivery and performance of this Agreement by Buyer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all requisite corporate action, and no other corporate proceedings
on its part are necessary to authorize the execution, delivery or performance of
this Agreement. This Agreement has been duly executed and delivered by Buyer
and, assuming that this Agreement is the valid and binding agreement of the
other parties hereto, constitutes the valid and binding obligation of Buyer,
enforceable in accordance with its terms.
5.03 No Breach. The execution, delivery and performance of
this Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby do not conflict with or result in any breach of any of the
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provisions of, constitute a default under, result in a violation of, result in
the creation of a right of termination or acceleration or any lien, security
interest, charge or encumbrance upon any assets of Buyer, or require any
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body, under the provisions of the Articles of
Incorporation of Buyer or any indenture, mortgage, lease, loan agreement or
other agreement or instrument by which Buyer is bound or affected, or any law,
statute, rule or regulation or order, judgment or decree to which Buyer is
subject.
5.04 Governmental Authorities; Consents. Buyer is not required
to submit any notice, report or other filing with any governmental authority in
connection with the execution or delivery by it of this Agreement or the
consummation of the transactions contemplated hereby. No consent, approval or
authorization of any governmental or regulatory authority or any other party or
person is required to be obtained by Buyer in connection with its execution,
delivery and performance of this Agreement or the transactions contemplated
hereby.
5.05 Brokerage. No third party shall be entitled to receive
any brokerage commissions, finder's fees, fees for financial advisory services
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of Buyer.
ARTICLE VI
CLOSING DELIVERIES
6.01 Closing Deliveries of the Secured Parties. At or prior to
the Closing, the Secured Parties shall deliver to Buyer all of the following:
(a) The Xxxx of Sale, executed by the Secured Parties (or
Agent);
(b) The Patent Assignment, executed by the Secured Parties (or
Agent);
(c) The Trademark Assignment, executed by Secured Parties (or
Agent);
(d) A Partial Release of Collateral Assignment of Patents in
substantially the form attached hereto as Exhibit E (the "Partial
Release of Collateral Assignment"), executed by the Secured Parties;
(e) Certified copies of all governmental filings,
authorizations and approvals that are required for the consummation of
the transactions contemplated hereby, if any;
(f) All of Angiosonics' books and records used in connection
with the Business and related to the Assets, to the extent constituting
Collateral and available to the Secured Parties, which shall be
delivered to the Buyer "where is";
(g) Legal Opinion of Xxxxxxxxxx & Xxxxx satisfactory to Buyer
concerning the due execution of the Asset Purchase Agreement and other
related documents, and
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(h) Such other certificates, documents and instruments as
Buyer reasonably requests related to the transactions contemplated
hereby.
6.02 Closing Deliveries of Buyer. At or prior to the Closing,
Buyer shall deliver all of the following:
(a) A wire transfer in immediately available, lawful U.S.
funds in the amount of the Purchase Price; and
(b) A copy of the text of the resolutions adopted by the board
of directors of Buyer authorizing the execution, delivery and
performance of this Agreement and the consummation of all of the
transactions contemplated hereby, along with a certificate executed on
behalf of Buyer by its secretary certifying to the Secured Parties that
such copy is a true, correct and complete copy of such resolutions, and
that such resolutions were duly adopted and have not been amended or
rescinded.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.01 Tax Matters. All Taxes on income imposed in connection
with the sale of the Assets shall be borne by the Secured Parties. All other
Taxes imposed in connection with the transfer and sale of the Assets shall be
borne by the Secured Parties, provided that Buyer shall be responsible for any
use taxes in connection with its use of the Assets after the Closing and any
taxes resulting from the transfer of any Assets to other locations after the
Closing.
7.02 Consulting Agreements. The Secured Parties shall use
their best efforts to persuade those employees of Angiosonics selected by Buyer,
in its sole discretion, to enter into consulting agreements with Buyer for a
minimum period of six months following the Closing for the purpose of
facilitating Buyer's understanding and use of the Assets.
ARTICLE VIII
LICENSE OF INVASIVE TECHNOLOGY
8.01 Exclusive License.
(a) The Secured Parties pursuant to North Carolina
Stat. ss.25-9-610(a) grant to the Buyer and its successors in interest,
the exclusive right and license (the "Invasive Technology License") in
the United States of America, its territories and dependencies, to use,
sell , make, and have made any product, apparatus, or method containing
or using technology and inventions underlying in U.S. Patents No.
6,113,558 and 5,984,882, and to any invention in a continuation,
continuation-in-part, divisional, reexamination, design patent or
reissue, whether issued or applied for, claiming priority from the
6,113,558 and 5,984,882 patents insofar as such products, apparatus or
methods relate to invasive thrombolysis treatment in the vascular
coronary and peripheral systems.
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(b) The Secured Parties also grant to the Buyer and its
successors in interest, the exclusive right and license to use, sell,
make, and have made any product, apparatus, or method containing or
using technology and inventions underlying any foreign patent,
certificate of invention, xxxxx patent, or design patent claiming
priority from the 6,113,558 and 5,984,882 patents, to the extent
allowed by the respective law of the issuing country, insofar as such
products, apparatus or methods relate to invasive thrombolysis
treatment in the vascular coronary and peripheral systems.
8.02 Term. This agreement shall run to the end of the term of
the last to expire patent, certificate of invention, xxxxx patent, or design
patent issued or granted which is subject to this agreement. The Secured
Parties, its successors in interest, assignees, or any other party which
acquires an interest in any of the patents or patent applications subject to
this agreement does not retain a right to terminate this agreement.
8.03 Powers of Buyer. The Buyer is empowered to:
(a) To bring suit in its own name or, if required by law,
jointly with the Secured Parties , at its own expense and on its own
behalf, for infringement of any patent, certificate of invention, xxxxx
patent, or design patent issued or granted which is subject to this
agreement;
(b) In any such suit to enjoin infringement and to collect for
its use, damages, profits, and awards of whatever nature recoverable
for such infringement;
(c) To settle any claim or suit for infringement of any
patent, certificate of invention, xxxxx patent, or design patent which
is subject to this agreement; and
(d) To act on behalf of the Secured Parties with respect to
the maintenance of any patent, certificate of invention, xxxxx patent,
design patent, or patent application which is subject to this
agreement.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
9.01 Reliance and Survival of Representations and Warranties
and Covenants. Notwithstanding any investigation made by or on behalf of the
parties hereto or the results of any such investigation, and notwithstanding the
participation of the parties in the Closing, each party shall be deemed to have
relied on the representations, warranties and covenants of the other parties and
the indemnification obligations of the Secured Parties and Buyer with respect
thereto, shall survive the Closing for twelve months following the Closing;
provided, however, that the representations and warranties contained in Sections
4.06 and the indemnification obligations of the Secured Parties with respect
thereto, shall survive the Closing for a period of six months after all
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applicable statutes of limitations with respect to any claims governing the
respective matters set forth therein have expired. Notwithstanding any provision
contained herein to the contrary, with respect to any specific representation or
warranty under which a party shall have made a claim for indemnification
hereunder prior to the expiration of the survival periods set forth above and as
to which such claim has not been completely and finally resolved prior to the
expiration of the applicable survival period, such representation or warranty
shall survive for the period of time beyond the expiration of the applicable
survival period sufficient to resolve, completely and finally, the claim
relating to such representation or warranty.
9.02 Indemnification by the Secured Parties. Subject to the
limitations of Sections 9.01 and 9.04, the Secured Parties jointly and severally
agree to indemnify in full, defend and hold harmless Buyer, its respective
officers, directors, employees, agents and shareholders (collectively, the
"Buyer Indemnified Parties") against any actual loss, expense or cost (including
reasonable attorneys' fees and expenses, but excluding incidental, consequential
and punitive damages of the Buyer Indemnified Parties and lost profits of the
Buyer Indemnified Parties) (collectively, "Losses"), whether or not involving a
third-party Claim (as defined in Section 9.04(a)) or actually incurred or paid
(provided that notice of the claim for indemnification was given) prior to the
expiration of the indemnification obligation of the Secured Parties hereunder,
which the Buyer Indemnified Parties may suffer, sustain or become subject to, as
a result of any of the following:
(a) any misrepresentation in any of the representations and
warranties of the Secured Parties contained in this Agreement or the
agreements attached as exhibits hereto (the "Related Agreements") or
any schedules, certificates or other documents delivered or to be
delivered by or on behalf of the Secured Parties pursuant to the terms
of this Agreement or otherwise referenced or incorporated in this
Agreement (collectively, the "Seller Related Documents"); or
(b) any breach of, or failure to perform, any agreement or
covenant of the Secured Parties contained in this Agreement or any of
Seller Related Documents.
9.03 Indemnification by Buyer. Subject to the limitations of
Section 9.01, Buyer agrees to indemnify in full, defend and hold harmless the
Secured Parties (collectively, the "Seller Indemnified Parties") against any
Losses (including reasonable attorneys' fees and expenses, but excluding
incidental, consequential and punitive damages of the Seller Indemnified Parties
and lost profits of the Seller Indemnified Parties) , whether or not involving a
third-party Claim or actually incurred or paid (provided that notice of the
claim for indemnification was given) prior to the expiration of the
indemnification obligations of Buyer hereunder, which the Seller Indemnified
Parties may suffer, sustain or become subject to as a result of any of the
following:
(a) any misrepresentation in any of the representations and
warranties of Buyer contained in this Agreement or any schedules,
certificates, the Related Agreements, or other documents delivered or
to be delivered by or on behalf of Buyer pursuant to the terms of this
Agreement or otherwise referenced or incorporated in this Agreement
(collectively, the "Buyer Related Documents" and, together with Seller
Related Documents, the "Related Documents");
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(b) any breach of, or failure to perform, any agreement or
covenant of Buyer contained in this Agreement or any of the Buyer
Related Documents.
9.04 Method of Asserting Claims. As used herein, an
"Indemnified Party" shall refer to a Buyer Indemnified Party or a Seller
Indemnified Party, as applicable, and the "Indemnifying Party" shall refer to
the party or parties hereto obligated to indemnify such Indemnified Party.
(a) In the event that any of the Indemnified Parties is made a
defendant in or party to any action or proceeding, judicial or
administrative, instituted by any third party for the liability or the
costs or expenses of which are Losses (any such third party action or
proceeding being referred to as a "Claim"), then such Indemnified Party
shall give the Indemnifying Party prompt notice thereof. The failure to
give such notice shall not affect any Indemnified Party's ability to
seek reimbursement unless such failure has materially and adversely
affected the Indemnifying Party's ability to defend successfully a
Claim. The Indemnifying Party shall be entitled to contest and defend
such Claim; provided, that the Indemnifying Party (i) has a reasonable
basis for concluding that such defense may be successful and (ii)
diligently contests and defends such Claim. Notice of the intention so
to contest and defend shall be given by the Indemnifying Party to the
Indemnified Party within 15 business days after the Indemnified Party's
notice of such Claim (but, in any event, at least five business days
prior to the date that an answer to such Claim is due to be filed).
Such contest and defense shall be conducted by reputable attorneys
employed by the Indemnifying Party. If the Indemnifying Party fails to
give such notice or assume such defense, then the Indemnified Party
shall be entitled to undertake such defense and its reasonable costs
and expenses (including, without limitation, attorney fees and
expenses) shall be included in the Loss to be indemnified by the
Indemnifying Party. If the Indemnifying Party elects to contest and
defend a Claim, the Indemnified Party shall be entitled at any time, at
its own cost and expense (which expense shall not constitute a Loss
unless the Indemnified Party reasonably determines that the
Indemnifying Party is not adequately representing or, because of a
conflict of interest, may not adequately represent, any interests of
the Indemnified Parties, and only to the extent that such expenses are
reasonable), to participate in such contest and defense and to be
represented by attorneys of its or their own choosing. If the
Indemnified Party elects to participate in such defense, the
Indemnified Party will cooperate with the Indemnifying Party in the
conduct of such defense. Neither the Indemnified Party nor the
Indemnifying Party may concede, settle or compromise any Claim without
the consent of the other party, which consent shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, if (i) a Claim
seeks equitable relief, (ii) the subject matter of a Claim relates to
the ongoing business of any of the Indemnified Parties, which Claim, if
decided against any of the Indemnified Parties, would materially
adversely affect the ongoing business or reputation of any of the
Indemnified Parties, or (iii) the Indemnified Parties would not be
fully indemnified with respect to such Claim, then, in each such case,
the Indemnified Parties alone shall be entitled to contest, defend and
settle such Claim in the first instance and, if the Indemnified Parties
do not contest, defend or settle such Claim, the Indemnifying Party
shall then have the right to contest and defend (but not settle) such
Claim.
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(b) In the event any Indemnified Party should have a claim for
indemnification against any Indemnifying Party (whether such claim does
not involve a Claim or involves a settled or resolved Claim which the
Indemnifying Party has not defended for any reason, or a Claim from
which an Indemnified Party has suffered Losses by reason of the
Indemnifying Party's failure to adequately represent a Indemnified
Party's interests or otherwise to indemnify the Indemnified Party), the
Indemnified Party shall deliver a notice of such claim to the
Indemnifying Party, setting forth in reasonable detail the identity,
nature and estimated amount of Losses (if reasonably determinable)
related to such claim or claims, with reasonable promptness and in all
events prior to the expiration of the Indemnifying Party's
indemnification obligation hereunder. If the Indemnifying Party
notifies the Indemnified Party that it does not dispute the claim
described in such notice or fails to notify the Indemnified Party
within 20 days after delivery of such notice by the Indemnified Party
whether the Indemnifying Party disputes the claim described in such
notice, the Loss in the amount specified in the Indemnified Party's
notice will be conclusively deemed a liability of the Indemnifying
Party and the Indemnifying Party shall pay the amount of such Loss to
the Indemnified Party on demand. If the Indemnifying Party has timely
disputed its liability with respect to such claim, the Indemnifying
Party and the Indemnified Party will proceed in good faith to negotiate
a resolution of such dispute for a period of at least 30 days.
9.05 Limitations on Indemnification.
(a) Notwithstanding any provision contained herein to the
contrary, none of the Secured Parties shall have any obligation to
provide indemnification pursuant to Section 9.02 in an amount greater
than the portion of the Purchase Price received directly or indirectly
by such Secured Party pursuant to this Agreement.
(b) Any indemnification payable under this Article IX shall
be, to the extent permitted by law, an adjustment to purchase price.
The amount of any indemnification to be paid under this Article IX
shall be computed after giving effect to any tax benefits actually
realized by the Indemnified Party and any insurance proceeds actually
received by the Indemnified Party, after taking into account the tax
consequences of the receipt of any indemnity payment hereunder.
9.06 Materiality. Notwithstanding any provision in this
Agreement to the contrary, the Indemnifying Party's obligation to indemnify the
Indemnified Party in connection with a breach of any representation, warranty,
covenant or other agreement included in this Agreement or any of the Closing
Agreements, and the amount of Losses to be indemnified, shall be determined
without regard to any "materiality" (or correlative meanings) or "Material
Adverse Effect" qualifications, provisions or exceptions set forth in such
representation, warranty, covenant or other agreement, each of which shall be
deemed to be given for the purposes of this Article IX as though there were no
such qualifications, provisions or exceptions.
-12-
ARTICLE X
MISCELLANEOUS
10.01 Press Releases and Announcements. Neither party hereto
shall issue any press release (or make any other public announcement) related to
this Agreement or the transactions contemplated hereby or make any announcement
to the employees, customers or suppliers of Angiosonics without prior written
approval of the other party hereto, except as may be necessary, in the opinion
of counsel to the party seeking to make disclosure, to comply with the
requirements of this Agreement or applicable law. If any such press release or
public announcement is so required, the party making such disclosure shall
consult with the other party prior to making such disclosure, and the parties
shall use all reasonable efforts, acting in good faith, to agree upon a text for
such disclosure which is satisfactory to both parties. The Buyer's obligations
with respect to this Section 10.01 shall be satisfied upon consulting with and
receiving approval of the Agent.
10.02 Expenses. The Secured Parties and Buyer will pay all of
their own expenses (including attorneys' and accountants' fees) incurred in
connection with the negotiation of this Agreement, the performance of their
respective obligations hereunder and the consummation of the transactions
contemplated by this Agreement (whether consummated or not).
10.03 Further Assurances. Each of the Secured Parties agrees
that, on and after the Closing Date, it or he shall take all appropriate action
and execute any documents, instruments or conveyances of any kind which may be
reasonably necessary or advisable to carry out any of the provisions hereof.
10.04 Amendment and Waiver. This Agreement may not be amended
or waived except in a writing executed by the party against which such amendment
or waiver is sought to be enforced. No course of dealing between or among any
persons having any interest in this Agreement will be deemed Closing to modify
or amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
10.05 Notices. All notices, demands and other communications
to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when personally
delivered or three business days after being mailed by first class U.S. mail,
return receipt requested, or when receipt is acknowledged, if sent by facsimile,
telecopy or other electronic transmission device. Notices, demands and
communications to Buyer and the Secured Parties will, unless another address is
specified in writing, be sent to the address indicated below:
Notice to Buyer: with a copy to:
--------------- --------------
Vascular Solutions, Inc. Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxx Xxxxx 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
-13-
Notices to the Secured Parties:
------------------------------
Gemini Systems Corporation NV Gemini Xxxxxx XX Parallel Fund XX
Xxxxxxxx Joonchi Kaya Hamenofim 9 St.
Xxxxxxx X. Xxxxxxx z/n Hertzelia Industrial Zone 46733
X.X. Xxx 000, Xxxxxxx Xxxxxx
Xxxxxxxxxxx Antilles Attention: Xxxxx Xxxx/Xx Xxxxxxx
Attention: Intertrust (Curacao) NV Telecopy: (000) 0-0000000
Telecopy: (00) 0-0000000
Gemini Partner Investors LP
Advent PGGM Gemini LP Hamenofim 9 St.
Hamenofim 0 Xx. Xxxxxxxxx Xxxxxxxxxx Xxxx 00000
Xxxxxxxxx Industrial Xxxx 00000 Xxxxxx
Xxxxxx Attention: Xxxxx Xxxx/Xx Xxxxxxx
Attention: Xxxxx Xxxx/Xx Xxxxxxx Telecopy: (000) 0-0000000
Telecopy: (000) 0-0000000
Gemini Xxxxxx XX XX Xxx Xxxx Xxxxxxxx & Co.
Hamenofim 0 Xx. Xxxxxxx xx Xxxxxx
Xxxxxxxxx Industrial Zone 46733 Xx. Xx Xxxxxxxxx, 000 - 0000 Xxxxxxxxx
Xxxxxx Attention: ________________
Attention: Xxxxx Xxxx/Xx Xxxxxxx Telecopy: (00) 0-0000000
Telecopy: (000) 0-0000000
Xxxxx X. Xxxxxx
Murata Business Center
________________________
Attention: _____________
Telecopy: (000) 000-0000
with copies to:
--------------
Xxxxxxxxxx - Xxxxx & Co., Adv.
00 Xxxxxx Xxxxxxxx Xx.
Xxxxxxxxx 00000
Israel
Attention: Xxxxx Xxxxx
Telecopy: (000) 0-000-0000
10.06 Binding Effect; Assignment. This Agreement and all of
the provisions hereof will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, except
that neither this Agreement nor any of the rights, interests or obligations
hereunder may be assigned by either party hereto without the prior written
consent of the other party hereto.
-14-
10.07 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be binding and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
10.08 Complete Agreement. This Agreement, the Related
Agreements, the Exhibits hereto, the Disclosure Schedule and the other documents
referred to herein contain the complete agreement between the parties and
supersede any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter
hereof in any way.
10.09 Counterparts. This Agreement may be executed in one or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same instrument.
10.10 Governing Law. The internal law, without regard to
conflicts of laws principles, of the State of Minnesota shall govern all
questions concerning the construction, validity and interpretation of this
Agreement and the performance of the obligations imposed by this Agreement.
[Remainder of page intentionally left blank]
-15-
IN WITNESS WHEREOF, the parties hereto have executed this
Asset Purchase Agreement as of the day and year first above written.
VASCULAR SOLUTIONS, INC.
By:
------------------------------------
Xxxxxx X. Xxxx
Its: Chief Executive Officer
GEMINI XXXXXX XX LP
By:
------------------------------------
------------------------------------
Its:
-------------------------------
GEMINI XXXXXX XX PARALLEL FUND LP
By:
------------------------------------
------------------------------------
Its:
-------------------------------
GEMINI SYSTEMS CORPORATION NV
By:
------------------------------------
------------------------------------
Its:
-------------------------------
VAN MOER XXXXXXXX & CO.
By:
------------------------------------
------------------------------------
Its:
-------------------------------
[Signature Page to Asset Purchase Agreement]
S-1
ADVENT PGGM GEMINI LP
By:
------------------------------------
------------------------------------
Its:
-------------------------------
GEMINI PARTNER INVESTORS LP
By:
------------------------------------
------------------------------------
Its:
-------------------------------
XXXXX X. XXXXXXX
----------------------------------------
[Signature Page to Asset Purchase Agreement]
S-2
EXHIBIT LIST
Exhibit A Allocation of Purchase Price
Exhibit B Xxxx of Sale
Exhibit C Patent Assignment
Exhibit D Trademark Assignment
Exhibit E Partial Release of Collateral Assignment
Exhibit F Written Opinion of Counsel as to Due Execution
SCHEDULES
Schedule 1.01(e) Acolysis System Inventory
Schedule 1.01(f) Fixtures for Acolysis System
SCHEDULE 1.01(e)
ACOLYSIS SYSTEM INVENTORY
--------- ------------ -------------------------------
ITEM QUANTITY DESCRIPTION
--------- ------------ -------------------------------
1 Shipping Material
--------- ------------ -------------------------------
2 Pedestal Assembly
--------- ------------ -------------------------------
3 Control Unit Parts
--------- ------------ -------------------------------
4 MAD060 Peripheral Probe Parts
--------- ------------ -------------------------------
5 System Materials
--------- ------------ -------------------------------
6 MAD048/MAD060 Common Parts
--------- ------------ -------------------------------
7 9 F.G Control Unit Sales
--------- ------------ -------------------------------
8 F.G. Sterile Probes
--------- ------------ -------------------------------
9 265 MAD060 Peripheral Probe
--------- ------------ -------------------------------
10 45 MAD065 Ziggurat Probe
--------- ------------ -------------------------------
11 99 MAD048 Coronary Probe
--------- ------------ -------------------------------
12 125 Probes Quarantine MAD060
--------- ------------ -------------------------------
SCHEDULE 1.01(f)
FIXTURES FOR ACOLYSIS SYSTEM
=======================================================
ITEM DESCRIPTION
=======================================================
MANUFACTURING
1 Workbench Lab, No Riser
2 Air Clean Workstation (Mfg)
3 Programmable Life Fixture
4 Life Test Fixture - TAC 1
5 Cirrus Cable Tester
6 Processor Test Station
7 Oven - Grieve
COMPUTERS
8 PC Gateway P5-133
9 Monitor CrystalScan 700
10 * PC Pentium P5-166
11 * Monitor CrystalScan 70
12 Computer X0-000 Xxxxxxx
13 Monitor CrystalScan 700
14 PC Gateway P5-133
15 Monitor, Mircle
16 Computer For Testing
17 Monitor, Mircle
18 Monitor/Server ADI 15"
19 PC (no brand name)
20 PC Gateway P5-133
21 Monitor, Mircle
EQUIPMENT
22 Camera Color CCD High P
23 Navitar Zoom Lens System
24 Xxxxx-xxxx 2330 Sampling V-A-W Meter
25 Xxxxx-xxxx 2330 Sampling V-A-W Xxxxx
00 XXX 0000 Xxxxxxxxx Xxxxxxx
00 Xxxxxx XX-00 Electrical Safety Tester
28 EFD 1500XL Fluid Dispenser Digital
29 Tektronix TDS340A Digital Scope, 2 Ch 100MHz
30 Meter - Xxxxxxx 2001
31 Power Supply, Lab DC 135W GPR-3060D
32 Tektronix CFG280 00 XXX Xxx Xxxxxxxx Xxx.
00 Xxxxx 0000X Enhanced Safety Tester
34 HP 4149A IMP/G-P Analyzer
35 Multimeter Fluke Handheld
36 MicroScope Sterozoom 6 w/Stand
37 Fiber-Lite Series 180
38 Printer Fargo Pictura 310s
39 Commander 1900 Humidity Monitoring Controller
40 7 Metal wire Racks
TOOLS
41 Tool Box w/ Mfg tools
42 Misc Tools
43 Xxxxxx - Xxxxxx Yale 7000E
44 Tool Crimper
