ASSET PURCHASE AGREEMENT
BY AND BETWEEN
PERCEPTRON, INC. ("SELLER")
AND
ACOUSTIC MARKET RESEARCH, INC.
d/b/a SONORA MEDICAL SYSTEMS, INC.
("PURCHASER")
EFFECTIVE AS OF SEPTEMBER 30, 2000
TABLE OF CONTENTS
ARTICLE 1 SALE AND PURCHASE OF ACQUIRED ASSETS............................... 1
1.1 Sale and Purchase of Acquired Assets................................ 1
1.2 Excluded Assets..................................................... 2
ARTICLE 2 PURCHASE PRICE..................................................... 2
2.1 Purchase Price...................................................... 2
2.2 Method of Payment .................................................. 2
2.3 Allocation of Purchase Price ....................................... 2
ARTICLE 3 ASSUMED LIABILITIES ............................................... 3
3.1 Assumed Liabilities ................................................ 3
ARTICLE 4 THE CLOSING ....................................................... 3
4.1 Closing and Effective Dates .........................................3
4.2 Actions and Deliveries by Seller and Purchaser at Closing........... 3
ARTICLE 5 REPRESENTATIONS AND WARRANTIES .................................... 4
5.1 Seller's Representations ........................................... 4
5.2 Purchaser's representations ........................................ 7
ARTICLE 6 COVENANTS ......................................................... 8
6.1 Additional Agreements............................................... 8
6.2 Press Releases and Public Announcements............................. 8
6.3 Cooperation in Litigation........................................... 8
6.4 Transfer of Receipts................................................ 8
6.5 Compliance with Bulk Sales Laws..................................... 8
6.6 Updated Information................................................. 8
6.7 Conduct of Seller Prior to Closing.................................. 9
6.8 Conduct of Purchaser after Closing.................................. 9
ARTICLE 7 INDEMNIFICATION ................................................... 9
7.1 Survival ........................................................... 9
7.2 Seller's Indemnity ................................................. 9
7.3 Purchaser's Indemnity .............................................. 9
7.4 Claims for Indemnification .........................................10
7.5 Limitations on Recovery.............................................11
7.6 Payment ............................................................12
ARTICLE 8 ARBITRATION .......................................................12
8.1 Dispute resolution .................................................12
8.2 Injunctive relief ..................................................13
ARTICLE 9 MISCELLANEOUS PROVISIONS ..................................13
9.1 Complete Agreement..................................................13
9.2 No Waiver...........................................................13
9.3 Discharge, Amendment................................................13
9.4 Notices.............................................................13
9.5 Expenses............................................................14
9.6 Governing Law.......................................................14
9.7 Assignment..........................................................14
9.8 Counterparts and Signature..........................................14
9.9 No Third Party Beneficiaries........................................14
9.10 Construction and Interpretation.....................................14
9.11 Partial Invalidity..................................................15
9.12 Headings............................................................15
SCHEDULES
SCHEDULE 1.1(a) - MACHINERY, EQUIPMENT, FIXTURES, TOOLS, COMPUTERS, AND OTHER
TANGIBLE PERSONAL PROPERTY
SCHEDULE 1.1(b) - ACCOUNTS, NOTES RECEIVABLE AND AMOUNTS OWING FOR WORK IN
PROCESS AS OF CLOSING DATE
SCHEDULE 1.1(C) - PATENTS, TRADEMARKS, TRADE NAMES, COPYRIGHTS AND OTHER
INTELLECTUAL PROPERTY RIGHTS
SCHEDULE 1.1(d) - COMPUTER SOFTWARE, PROGRAMS AND DATA BASES
SCHEDULE 1.1(e) - EXECUTORY CONTRACTS AND OTHER OPEN PURCHASE ORDERS
SCHEDULE 1.1(i) - ASSIGNABLE PERMITS, LICENSES, APPROVALS, CERTIFICATIONS AND
LISTINGS
SCHEDULE 1.1(j) - CURRENTLY EFFECTIVE LEASES OF EQUIPMENT AND OTHER PERSONAL
PROPERTY
SCHEDULE 1.2 - EXCLUDED ASSETS
SCHEDULE 3.1 - ASSUMED LIABILITIES
SCHEDULE 5.1 (m) - WARRANTY OR GUARANTEE OBLIGATIONS FOR WHICH PURCHASER IS
RESPONSIBLE
SCHEDULE 5.1(o) - PURCHASE ORDERS AND CONTRACTS FOR WHICH PURCHASER IS
OBLIGATED
SCHEDULE 5.1(p) - MISCELLANEOUS CONTRACTS FOR WHICH PURCHASER IS OBLIGATED
EXHIBITS
EXHIBIT A - ALLOCATION OF PURCHASED ASSETS
EXHIBIT B - CERTIFICATE OF SELLER
EXHIBIT C - CERTIFICATE OF PURCHASER
EXHIBIT D - GENERAL XXXX OF SALE WITH RESPECT TO CERTAIN ASSETS OF PERCEPTRON,
INC.
EXHIBIT E - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT F.1 - SELLER'S OPINION OF COUNSEL ASSET PURCHASE AGREEMENT
EXHIBIT F.2 - PURCHASER'S OPINION OF COUNSEL ASSET PURCHASE AGREEMENT
EXHIBIT G - GOVERNMENT/REGULATORY APPROVALS
EXHIBIT H - THIRD PARTY CONSENTS
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made and entered into this
thirtieth day of September, 2000, by and between Perceptron, Inc. ("Seller"), a
Michigan corporation, and Acoustic Market Research, Inc. d/b/a Sonora Medical
Systems, Inc. ("Purchaser"), a Colorado corporation. Seller and Purchaser are
referred to collectively in this Agreement as the "Parties."
WHEREAS, Seller is engaged in the business of Measurement and Testing of
Medical Ultrasound and Acoustic Equipment and of manufacturing Ultrasound
Hydrophones ("Business"); and
WHEREAS, Seller desires to sell and assign to Purchaser, and Purchaser
desires to acquire from Seller, certain assets used in connection with the
Business and to assume certain stated liabilities of the Business as set forth
in this Agreement;
NOW, THEREFOR, the Parties, in consideration of the mutual
representations, covenants, warranties and agreements set forth herein, and in
any agreement executed in connection herewith, hereby agree as follows.
ARTICLE 1 SALE AND PURCHASE OF ACQUIRED ASSETS
1.1 Sale and Purchase of Acquired Assets. Subject to the terms and
conditions set forth in this Agreement Seller shall at Closing sell, convey,
assign, transfer and deliver to Purchaser, and Purchaser shall purchase and
accept from Seller, substantially all the assets that are currently used,
useful, or necessary to operate the Business, as it is now being conducted,
("Purchased Assets") including:
(a) The machinery, equipment, fixtures, tools, computers, and
other tangible personal property set forth on SCHEDULE
1.1(a) of this Agreement;
(b) All accounts and notes receivable, related to the Business,
for work in process as of the Closing Date, as set forth on
SCHEDULE 1.1(b) of this Agreement;
(c) The patents, trademarks, trade names, copyrights, and other
intellectual property rights set forth on SCHEDULE 1.1(c)
of this Agreement;
(d) All rights of Seller to computer software (however
recorded), programs, and data bases used, useful or
necessary to operate the Business, as it is now being
conducted, as set forth on SCHEDULE 1.1(d) of this
Agreement;
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(e) All executory contracts and other open purchase orders and
other agreements related to the Business as set forth on
SCHEDULE 1.1(e) of this Agreement;
(f) All drawings, designs, specifications and production data
with respect to the Business;
(g) All of the (i) finished goods, (ii) work in process, raw
materials, inventory, products, operating supplies,
packaging and shipping materials and (iii) replacement,
spare and component parts used in the Business;
(h) All books and records of Seller relating to the Business
including customer and supplier lists, mailing lists,
advertising lists, trade secrets, know-how and other
proprietary and confidential information of the Business as
of the Closing;
(i) All assignable permits, licenses, approvals, certifications
and listings or the like with respect to the Business
issued to Seller by any federal, state, local, foreign or
other jurisdiction or instrumentality or certification
organization as set forth on SCHEDULE 1.1(i) of this
Agreement;
(j) All currently effective leases of equipment and other
personal property with respect to the Business as set forth
on SCHEDULE 1.1(j) of this Agreement.
1.2 Excluded Assets. Seller shall retain all assets in connection with the
Business, not conveyed above, set forth on SCHEDULE 1.2 ("Excluded Assets").
ARTICLE 2 PURCHASE PRICE
2.1 Purchase Price. The Purchase Price for the Purchased Assets shall be
Two hundred seventy thousand dollars ($270,000) payable at Closing.
2.2 Method of Payment. The Purchase Price shall be paid by means of a
certified or bank cashier's check payable to the order of "Perceptron, Inc."
or, at Seller's option, by wire transfer of immediately available funds to an
account previously designated by Seller in writing.
2.3 Allocation of Purchase Price. The Parties acknowledge and agree that
the purchase and sale of the Purchased Assets is an "applicable asset
acquisition" within the meaning of Section 1060(c) of the Internal Revenue Code
of 1986, as amended. The Final Purchase Price shall be allocated among the
Purchased Assets as set forth in
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EXHIBIT A and the Parties agree to be bound by and shall file tax returns
consistent with such allocations.
ARTICLE 3 ASSUMED LIABILITIES
3.1 Assumed Liabilities. Purchaser shall assume no liabilities of Seller
of any kind or nature, including any debt, obligation, tax or liability, known
or unknown, contingent or otherwise, or any obligations related to employees,
or former employees, of Seller engaged in the Business except as set forth on
SCHEDULE 3.1 ("Assumed Liabilities"). All liabilities of Seller which are not
Assumed Liabilities shall remain the liabilities of the Sellers, which
liabilities Seller agrees to pay and discharge in a timely manner.
ARTICLE 4 THE CLOSING
4.1 Closing and Effective Dates. The transfer of the Purchased Assets by
Seller and payment for Purchased Assets by Seller ("Closing") shall take place
at 4:00 PM on September 29, 2000 ("Closing Date") at the offices of Seller's
Ultrasound Technology Group in Plymouth Meeting, PA , or on such other date or
place as is mutually agree to in writing the Parties. The transactions
contemplated by this Agreement shall become effective as of 12:00 PM on
September 30, 2000. ("Effective Date").
4.2 Actions and Deliveries by Seller and Purchaser at Closing. At Closing,
Seller and Purchaser shall deliver, or cause to be delivered, each of the
following documents and any further documents required to effect this Agreement
or reasonably requested by either Party:
(a) A certificate, as set forth in EXHIBIT B, signed by a
cognizant representative of Seller confirming that it has
taken all corporate action necessary to approve and effect
the transactions contemplated by this Agreement;
(b) A certificate, as set forth in EXHIBIT C, signed by a
cognizant representative of Purchaser confirming that it
has taken all corporate action necessary to approve and
effect the transactions contemplated by this Agreement;
(c) A Xxxx of Sale and other appropriate documents of
conveyance, satisfactory to Purchaser, as set forth in
EXHIBIT D, relating to the Purchased Assets;
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(d) Assumptions or other appropriate instruments of acceptance
from Purchaser, in a form reasonably acceptable to Seller,
as set forth in EXHIBIT E, with respect to all of the
Assumed Liabilities;
(e) An opinion of Counsel from each Party related to the
transaction, dated as of the Closing date, as set forth in
EXHIBIT F;
(f) Copies of all governmental or regulatory approvals and
actions required to be obtained by Seller or Purchaser in
connection with this Agreement by applicable law or
regulation as set forth in EXHIBIT G;
(g) Copies of written consents, in a form satisfactory to
Purchaser, from the other parties to all contracts, leases
and other agreements to which Seller is a party and which
are needed to convey the Purchased Assets, as set forth in
EXHIBIT H.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
5.1 Seller's Representations. Seller represents and warrants to Purchaser
as of the date of this Agreement as follows:
(a) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Michigan and is duly qualified or licensed as a foreign
corporation authorized to do business in all jurisdictions
in which the failure to be so qualified would have a
materially adverse effect upon the conduct of the Business
by Seller or upon its ability to perform any of its
obligations under this Agreement.
(b) Seller has all requisite corporate power and authority and
all licenses, franchises, permits and authorizations to own
the Purchased Assets being conveyed by this Agreement and
to carry on the Business as presently conducted.
(c) Seller has full corporate power and authority to execute
and deliver this Agreement and all related documents and
instruments. Seller has taken all corporate action
necessary to authorize the execution, delivery and
performance of this Agreement and all related documents and
instruments. This Agreement, and all related documents and
instruments, constitute valid and binding rights and
obligations of Seller, enforceable in accordance with their
respective terms and conditions.
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(d) The execution, delivery, and performance of this Agreement
do not violate or constitute a default under an mortgage,
promissory note, or similar instrument for borrowed money
to which Seller is a party or by which it is bound.
(e) Seller has good and marketable title to the Purchased
Assets, free and clear of any liens, pledges, encumbrances
or claims of third parties.
(f) Seller is not in default under any agreement relating to
the Purchased Assets, which default would have an adverse
affect on the Purchased Assets or the Business.
(g) The inventories of systems, components and parts held for
sale or usage by Seller in the Business are of a standard
and quality generally saleable, or useable, in such
Business. However the parties acknowledge that this
transaction dues not constitute a sale of goods under the
Uniform Commercial Code and, in any event, ALL WARANTIES,
EPXRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY SET FORTH IN
THIS AGREEMENT WITH RESPECT TO THE PURCHASED ASSETS,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY OR FITNESS OF PURPOSE, ARE EXPRESSLY
EXCLUDED.
(h) Seller has not been notified in writing by any governmental
agency having jurisdiction, nor is Seller otherwise aware,
that the Business, as it relates to the Purchased Assets,
is not currently in compliance with all applicable rules
and regulations including, but not limited to, rules of the
U.S. Environmental Protection Agency, the Occupational
Safety and Health Administration and the Department of
Labor.
(i) The Business, as it relates to the Purchased Assets, is
being operated by Seller in compliance with all applicable
laws, rules and regulations, non-compliance with which
might be expected adversely to affect the Business or the
Purchased Assets.
(j) There are no actions, suits or legal proceedings pending,
or to the best of Seller's knowledge, threatened against or
involving the Business, the Purchased Assets, or the
transactions contemplated by this Agreement that would have
an adverse effect upon the Business or the Purchased Assets
nor, to the best of Seller's knowledge, is there any
reasonable basis for any such action, suit or proceeding.
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(k) To the best of Seller's knowledge, the Business, as
presently conducted, insofar as the Purchased Assets are
concerned, does not utilize any patent, trademark,
copyright, or other Intellectual property right not being
conveyed to Purchaser under this Agreement nor does it
conflict with, or infringe upon, any patent, trademark,
copyright or other intellectual property right, trade
secret, or confidential information owned or claimed by
another; and there are no actions, suits, or proceedings
pending or, to the best of Seller's knowledge, threatened
that allege that the Business or the Purchased Assets
conflict with, or infringe upon, any patent, trademark,
copyright, trade secret, or confidential information owned
or claimed by a third party.
(l) There are no product warranty or product liability claims
or actions concerning products sold by Seller in the
Business relating to the Purchased Assets currently
pending, nor, to the best of Seller's knowledge, threatened
that would have an adverse effect on the Purchased Assets
or the Business.
(m) Except as set forth in SCHEDULE 5.1(m), none of the
contracts or agreements that constitute Assumed Liabilities
or Purchased Assets have outstanding warranty or guarantee
obligations by Seller.
(n) As of the Closing Date, and for the six month period prior
thereto, Seller has managed the Purchased Assets and has
operated the Business in its usual and ordinary course.
(o) SCHEDULE 5.1(o) sets forth all purchase orders or contracts
for the purchase by Seller from third parties of
merchandise, products or services relating to the business
which have not been, nor will be, paid for by Seller prior
to the Closing Date, and for which Purchaser will be
obligated as a condition of the Sale.
(p) SCHEDULE 5.1(p) sets forth all other material contracts or
agreements of the Seller relating to the Business not
otherwise set forth in a Schedule to this Agreement
including, but not limited to: employment and consulting
agreements; distribution and agency agreements; loan or
credit agreements or any agreements of guarantee, indemnity
or warranty; and agreements related to confidentiality or
non-disclosure.
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5.2 Purchaser's representations. Purchaser represents and warrants to
Purchaser as of the date of this Agreement as follows:
(a) Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State
of Colorado and duly qualified or licensed as a foreign
corporation authorized to do business in all jurisdictions
in which the failure to be so qualified would have an
adverse effect upon the conduct of the Business by
Purchaser.
(b) Purchaser has full corporate power and authority to execute
and deliver this Agreement and all related documents and
instruments. Purchaser has taken all corporate action
necessary to authorize the execution, delivery, and
performance of this Agreement and all related documents and
instruments.
(c) This Agreement and all related documents and instruments
constitute valid and binding obligations of Purchaser,
enforceable in accordance with their respective terms and
conditions.
(d) Purchaser has all requisite corporate power and authority
and all licenses, franchises, permits, consents and
authorizations to own and lease its properties and assets
and to carry on the Business as presently conducted by
Seller.
(e) The execution, delivery, and performance of this Agreement
do not violate or constitute a default under: any mortgage,
indenture, promissory note, or like agreement to which
Purchaser is a party, or by which it is bound; the Articles
or Incorporation or by-laws of Purchaser or its affiliates;
any court injunction or decree; any enforceable order of a
governmental agency having jurisdiction over Purchaser; any
bankruptcy, insolvency, reorganization , or similar action
affecting enforcement of creditors rights.
(f) The Purchaser has not agreed to pay or become liable to pay
any broker's, finder's or originator's fees or commission
by reason of services alleged to have been rendered for or
at the instance of the Purchaser in connection with this
Agreement or any transactions contemplated by this
Agreement except for fees payable to FPC Financial
Corporation in connection with this transaction, for which
Seller has no liability. .
(g) No representation or warranty by the Purchaser in the
Purchaser Delivered Documents contains or will contain any
untrue statement of a material fact, or omits or will omit
to state a material fact
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required to be stated therein or necessary to make the
statements contained in the Purchaser Delivered Documents
not misleading.
ARTICLE 6 COVENANTS
6.1 Additional Agreements. From time to time after the Closing Date,
subject to the terms and conditions in this Agreement, each of the Parties, at
its own expense, shall take, or cause to be taken, all actions, do, or cause to
be done all things, execute and deliver, or cause to be executed and delivered,
all such instruments, documents, and filings of whatever type, and obtain all
consents, approvals or authorizations of any governmental or regulatory agency
or any other Person under any permit, license, agreement or other agreement as
another Party may reasonably request in order to consummate and make effective
the transactions contemplated by this Agreement. The Parties shall cooperate
with each other in connection with the foregoing, including using their
respective best efforts to fulfill all conditions of this Agreement. In case at
any time after the Closing Date any further action is necessary or desirable to
carry out the purposes of this Agreement, the Parties shall take all such
necessary action.
6.2 Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter,
terms, conditions or other facts with respect to this Agreement prior to the
Closing without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure required by applicable
law or any listing or trading agreement concerning its publicly-traded
securities in which case the disclosing party will use its best efforts to
advise the other parties prior to making the disclosure and give the other
parties an opportunity to comment.
6.3 Cooperation in Litigation. In the event that, after the Closing, the
Seller or the Purchaser shall require the participation of officers and
employees employed by each other to aid in the defense or settlement of
litigation or claims by third parties, and so long as there exists no conflict
of interest between the Parties, Seller and Purchaser shall use their best
efforts to make such officers and employees available to participate in such
defense; provided, however, that the Party requiring the participation of such
officers or employees shall pay all reasonable out-of-pocket costs, charges and
expenses arising from such participation.
6.4 Transfer of Receipts. Seller and Purchaser agree that, after the
Closing Date, they will hold and will promptly transfer and deliver to the
other, from time to time as and when received by them, any cash, checks with
appropriate endorsements, or other property that they may receive on or after
the Closing Date which properly belongs to the other Party.
6.5 Compliance with Bulk Sales Laws. Seller and Purchaser hereby waive
compliance with the bulk sales law and any other similar laws in any applicable
jurisdiction in respect of the transactions contemplated by this Agreement.
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6.6 Updated Information. Seller and Purchaser shall each promptly disclose
to each other any information contained in its representations and warranties,
or in the Schedules which, because of an event occurring after the date hereof,
is incomplete or is no longer correct after the date hereof until Closing.
6.7 Conduct of Seller Prior to Closing. Seller covenants and agrees that
from the date of this Agreement to Closing to conduct the Business only in the
ordinary and usual course consistent with past practice; and Seller will not
enter into any agreement or make any commitment related to the Business, except
in the ordinary course of business and consistent with past practice.
6.8 Conduct of Purchaser after Closing: Purchaser covenants and agrees to
perform all warranty and maintenance work ("Work") required of Seller under the
terms of warranties or other obligations as set forth in SCHEDULE 5.1(m) of
this Agreement.
ARTICLE 7 INDEMNIFICATION
7.1 Survival. The representations, warranties, covenants and agreements of
the Parties (or any of them) contained in this Agreement, in the Seller
Delivered Documents, and in the Purchaser Delivered Documents shall survive for
three years following the Closing Date.
7.2 Seller's Indemnity. Seller shall indemnify, defend, save and hold
harmless Purchaser, and all of its successors and assigns, and Purchaser's
employees, representatives, officers, directors and agents from and against any
and all Indemnified Damages ("Indemnified Damages") arising out of or resulting
from:
(a) any breach of or inaccuracy in any representation or
warranty made by Seller in this Agreement or in any Seller
Delivered Document or in any Schedule or Exhibit, or in any
certificate or other document furnished by Seller pursuant
to this Agreement or any Seller Delivered Document; or
(b) any breach of any covenant of Seller contained in this
Agreement requiring performance after the Closing Date; or
(c) any claim or claims made against the Purchaser or its
successors or assigns arising out of any Assumed
Liabilities, including, but not limited to, those arising
out of the Seller's ownership, use, sale or operation of
the Acquired Assets, the Seller's conduct of the Business
on or before the Effective Date.
7.3 Purchaser's Indemnity. Purchaser shall indemnify, defend, save and
hold harmless Seller, and its successors and assigns, and employees,
representatives, officers,
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directors and agents, as applicable, from and against any and all Indemnified
Damages arising out of or resulting from:
(a) any breach of or inaccuracy in any representation or
warranty made by the Purchaser in this Agreement or in any
Purchaser Delivered Document or in any Schedule or Exhibit,
or in any certificate or other document furnished by
Purchaser pursuant to this Agreement or any Purchaser
Delivered Document; or
(b) any breach of any covenant of the Purchaser contained in
this Agreement requiring performance after the Closing
Date; or
(c) any claim or claims made against Seller or its successors
or assigns arising out of any Assumed Liability, including,
but not limited to, those arising out of Purchaser's
ownership, use, sale or operation of the Purchased Assets,
or Purchaser's conduct of the Business on or after the
Effective Date.
7.4 Claims for Indemnification.
(a) Whenever any claim for indemnification shall arise under
this Article 7, the Party asserting such claim (the
"Indemnified Party") shall notify the other Party (the
"Indemnifying Party") of the claim stating the amount
claimed to be due and payable or an estimate of the claim
if contingent or unliquidated, the basis of the claim and
the provision or provisions of this Agreement under which
such claim is asserted. Any notice under this Section
7.4(a) shall be accompanied by copies of any documents
relied on by any claimant and furnished to the Indemnified
Party. Within 30 calendar days after receipt of such
notice, the Indemnifying Party shall by written notice
either (i) concede liability in whole as to the amount
claimed in such notice; (ii) deny liability in whole as to
such amount; or (iii) concede liability in part and deny
liability in part. In the event of any claim for
indemnification under this Agreement resulting from or in
connection with legal proceedings by a third party, such
notice shall also specify, if known, the amount or an
estimate of the amount of the liability arising from such
proceedings.
(b) The Indemnified Party shall have the right to control the
defense of any such claim. The Indemnifying Party shall
have the right to participate, at its expense, in the
defense of such claim. The Indemnified Party shall have
sole discretion to determine whether to contest, compromise
or settle any such claim, subject to the Indemnifying
Party's prior approval of such contest, compromise or
settlement, which will not be unreasonably withheld. If the
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Indemnifying Party does not approve of such settlement
within ten (10) days of receipt of notice thereof, it will
defend the claim; provided, however, that it must provide
assurances to the Indemnified Party of its ability to pay
any indemnification claim of the Indemnified Party which
could reasonably arise from such claim, such assurances to
be in a form and amount reasonably satisfactory to the
Indemnified Party. If the Indemnifying Party fails to
provide such assurances, the Indemnified Party will be
entitled to contest, settle or compromise such claim in its
sole discretion. The Indemnifying Party shall cooperate and
make available to the Indemnified Party such assistance and
materials as may be reasonably requested by it, all at the
expense of the Indemnifying Party. Any judgment entered or
settlement agreed upon in the manner provided in this
Section 7.4(b) shall be binding upon the Indemnifying Party
and shall conclusively be deemed to be an obligation with
respect to which the Indemnified Party is entitled to
indemnification under this Article 7. If the Indemnified
Party does not elect to defend any such claim, then the
Indemnifying Party shall be required to defend the same;
provided, however, that the Indemnified Party shall be
entitled to participate in the defense of such claim and to
employ counsel at its own expense to assist in the handling
of such claim; and provided, further, that the employment of
such counsel shall be at the expense of the Indemnifying
Party if the Indemnified Party determines in good faith that
such participation is appropriate in light of defenses not
available to the Indemnifying Party, conflicts of interest
or other similar circumstances.
(c) The Indemnifying Party shall not consent to a settlement
of, or the entry of any judgment arising from, any such
claim or legal proceeding, without the prior written
consent of the Indemnified Party. If the Indemnifying Party
does not assume the defense of any such claim or litigation
resulting from such claim in accordance with the terms of
this Section 7.4, the Indemnified Party may defend against
such claim or litigation in such manner as it may deem
appropriate, including settling such claim or litigation,
after giving notice of the same to the Indemnifying Party,
on such terms as the Indemnified Party may deem
appropriate. If the Indemnifying Party seeks to question
the manner in which the Indemnified Party defended such
claim or litigation or the amount of or nature of any such
settlement, the Indemnifying Party shall have the burden to
prove by a preponderance of the evidence that the
Indemnified Party did not defend such claim in a reasonably
prudent manner.
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7.5 Limitations on Recovery. Should the Closing occur, rights to
indemnification hereunder are subject to the following limitations:
(a) The obligation of indemnity provided herein constitutes the
sole remedy of each Party with respect to any claim arising
under this Agreement.
(b) There shall be no obligation to indemnify for any
Indemnified Damages under Section 7.2 except to the extent
that any aggregate amount of all Indemnified Damages
asserted under Purchaser's Claims exceeds Fifty Thousand
Dollars ($50,000) (the "Minimum Threshold Amount") ,
following which the Purchaser shall be entitled to
indemnification with respect to Purchaser's Claims in
excess of the Minimum Threshold Amount.
(c) The maximum aggregate liability of Seller to Purchaser for
Indemnified Damages under Purchaser's Claims shall be an
amount equal to the Purchase Price.
7.6 Payment. Payments under this Indemnity provision shall be made within
ten (10) calendar days after the date the Indemnified Party makes its claim or,
if the Indemnifying Party disputes the claim, within ten (10) calendar days
after the date of the arbitrators' final decision as set forth in Article 8.
Payment for Indemnified Damages shall be based on amounts paid by the
Indemnified Party to third parties for the indemnified claim, including
reasonable costs of legal representation and other reasonable out of pocket
expenses.
ARTICLE 8 ARBITRATION
8.1 Dispute resolution: In the event of any dispute between Purchaser and
Seller with respect to the matters set forth in this Agreement, the Parties
shall first use their reasonable efforts to resolve such dispute among
themselves. If the Parties are unable to resolve the dispute within thirty (30)
calendar days of the initiation of such procedure, the dispute shall be settled
by arbitration as provided herein, or as otherwise mutually agreed to by the
Parties, which shall be the sole and exclusive procedure for the resolution of
any such dispute, except as set forth in the last sentence hereof. Within ten
(10) calendar days after receipt of written notice from one Party that it is
submitting the matter to arbitration, each Party shall designate in writing one
arbitrator to resolve the dispute who shall, in turn, jointly select a third
arbitrator within twenty (20) calendar days of their designation, with the
third arbitrator to be selected in accordance with the procedure established by
the American Arbitration Association (the "AAA"). The arbitrators so designated
shall each be a lawyer experienced in commercial and business affairs who is
not an employee, consultant, officer or director of any party or any affiliate
of any party and who has not received any compensation, directly or indirectly,
from any party or any affiliate of any party during the two (2) year period
preceding the Closing Date. The arbitration shall be governed by the rules of
the AAA. The arbitrators shall
12
use their best efforts to rule on each disputed issue within thirty (30)
calendar days after the completion of the hearings. The determination of the
arbitrators as to the resolution of any dispute shall be binding and conclusive
upon all Parties. All rulings of the arbitrators shall be in writing and shall
be delivered to the Parties. Each Party shall pay the fees of its respective
designated arbitrator and its own costs and expenses of the arbitration. The
fees of the third arbitrator shall be paid 50% by Purchaser and 50% by Seller.
Any arbitration pursuant to this Article shall be conducted in the State of New
Jersey. Any arbitration award may be entered in and enforced by any court
having jurisdiction thereof and the Parties hereby consent and commit
themselves to the jurisdiction of the courts of the State of Michigan for
purposes of the enforcement of any arbitration award.
8.2 Injunctive relief: The procedures set forth in this Article shall be
the sole and exclusive procedures for the resolution of disputes arising under
this Agreement, provided, however, that a party may seek a preliminary
injunction or other provisional judicial relief if in its judgment such action
is necessary to avoid irreparable damage or to preserve the status quo.
ARTICLE 9 MISCELLANEOUS PROVISIONS:
9.1 Complete Agreement. This Agreement, including the Schedules and
Exhibits and the documents referred to in this Agreement, shall constitute the
entire agreement between the Parties with respect to the subject matter of this
Agreement and shall supersede all previous and contemporaneous negotiations,
agreements and commitments, whether oral or in writing, with respect to such
subject matter. All discussions and negotiations by Purchaser, or any person on
behalf of Purchaser, with any person pertaining to the subject matter of this
Agreement, shall not be deemed to be on behalf of any such person in his
individual capacity, but rather shall be deemed to be solely on behalf of
Purchaser.
9.2 No Waiver. No failure of any Party to exercise any power given it
under this Agreement, or to insist upon strict compliance with any provision of
this Agreement, and no custom or practice of the Parties at variance with the
terms of this Agreement shall constitute a waiver of any Party's right to
demand exact compliance with the terms of this Agreement.
9.3 Discharge, Amendment. This Agreement may not be released, discharged,
abandoned, amended, or modified in any manner, except by an instrument in
writing signed on behalf of each of the Parties by their duly authorized
representatives.
9.4 Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given (a)
if physically delivered, (b) if telephonically transmitted by telecopier or
other similar means, with subsequent oral confirmation, (c) five (5) days after
having been deposited in the United States Mail, as certified mail with return
receipt requested and with postage
13
prepaid, or (d) one (1) business day after having been transmitted to a third
party providing delivery services in the ordinary course of business which
guarantees delivery on the next business day after such transmittal (e.g., via
Federal Express), all of which notices or other communications shall be
addressed to the recipient as follows:
IF TO SELLER: Xxxxxx X. Xxxxx, President and CEO, Perceptron. Inc. 00000
Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000-0000.
IF TO PURCHASER: Xxxxxxx Xxxxxxx, Chief Financial Officer, MISONIX, INC.
0000 Xxx Xxxxxxx, Xxxxxxxxxxx, XX 00000.
9.5 Expenses. The Parties shall pay their own expenses incident to the
preparation of this Agreement and the consummation of the transactions
contemplated therein.
9.6 Governing Law. The interpretation and construction of this Agreement,
the obligations of the Parties, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the domestic laws of the
State of New Jersey without regard to the conflict or choice of laws principles
of that state which might otherwise be applicable
9.7 Assignment. The rights and obligations provided by this Agreement
shall not be assignable by any Party without the prior written consent of the
other Party, except that Purchaser shall be entitled to assign any of its
rights and obligations under this Agreement to any of its affiliates (as
defined in Rule 12b-2 of the Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934,
as amended); provided, however, that Purchaser shall retain liability for all
of its obligations hereunder.
9.8 Counterparts and Signature. This Agreement may be executed in any
number of counterparts, each of which shall be treated as an original but all
of which, collectively, shall constitute a single instrument. This Agreement
shall be binding on any Party hereto once signed by such Party and a signature
by facsimile, with an original hard copy to follow, shall be deemed to be due
execution.
9.9 No Third Party Beneficiaries. The Parties shall have the sole right to
enforce the performance of the provisions of this Agreement and the sole right
to receive any and all amounts payable by the Parties pursuant to this
Agreement, and no other person or entity shall be entitled to, or shall have
any claim, right, title or interest to or in any such amounts by virtue of this
Agreement. This Agreement is personal to the Parties, and is not intended for
the benefit of, and is not intended to be relied upon by, any other person or
entity and no such person or entity (or any other person or entity acting on
its behalf) shall be entitled to the benefit of or to enforce this Agreement.
9.10 Construction and Interpretation.
14
(a) The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
(b) Each definition in this Agreement includes the singular and the
plural, and references to the neuter gender include the masculine and
feminine where appropriate.
(c) Any reference to any federal, state, local or foreign statute or
law shall be deemed to also to refer to all rules and regulations
promulgated under such statute or law, unless the context requires
otherwise. References to any statute or regulation mean such statute or
regulation as amended at the time and include any successor legislation or
regulation.
9.11 Partial Invalidity. Insofar as possible, each provision of this
Agreement shall be interpreted so as to render it valid and enforceable under
applicable law and severable from the remainder of this Agreement. A finding
that any provision is invalid or unenforceable in any jurisdiction shall not
affect the validity or enforceability of any other provision or the validity or
enforceability of such provision under the laws of any other jurisdiction.
9.12 Headings. The headings to the Articles and Sections are for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement.
The Parties have executed this Asset Purchase Agreement as of the date
first above written.
PERCEPTRON, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: VP-CFO
ACOUSTIC MARKET RESEARCH, INC.
d/b/a/SONORA MEDICAL SYSTEMS, INC.
By: /s/ G. Xxxxx Xxxxx
---------------------------------
Name: G. Xxxxx Xxxxx
Title: President--CEO
15
SCHEDULE 1.1(a)
MACHINERY, EQUIPMENT, FIXTURES, TOOLS, COMPUTERS,
AND OTHER TANGIBLE PERSONAL PROPERTY
(1) Complete 3-axis scanning system, including water tank (45x45x45 cm),
stepper motor controller (GPIB interface), precision slide rail and lead
screws, support cart, water valving.
(2) Measurement control computer, including GPIB interface, custom measurement
software (described in separate Schedule)
(3) Tektronics 2440 oscilloscope (200(mu)V resolution, 8 bit, 500 MHz
sampling, GPIB)
(4) Hydrophone calibration tank setup, including water tank (125x65x60 cm),
manual lead screw positioners for hydrophone and source, stepper motor
controlled rotational mount for hydrophone directivity testing, control
computer with calibration software.
(5) HP 3585A Spectrum Analyzer (0-40MHz swept)
(6) ENI Model 350L power amplifier (50dB, frequency range from 250kHz to
105MHz)
(7) HP 8116A Function Generator (burst signal generation up to 50MHz)
(8) Power Meter, Model UPM-DT-1 (used for total power measurement)
(9) Tri power DC supply, (Model E1A-416, Output 0-20V)
(10) Dual power DC supply, (HP 6253A, Output 0-20V)
(11) High voltage DC power supply (Trek, Model 610C, 0-10kV), for xxxxxx
hydrophones
(12) Wavetek Function Generator, (Model 182A)
(13) Panametrics Pulser/Receiver, Model 5050PR
(14) Bilaminar Hydrophones:
Bilaminar Membrane type S/N 804-043, 1-20MHz, NPL calibration on
8/27/93
Bilaminar Membrane type S/N 804-210, 1-20MHz, NPL calibration
on 1/8/99
Bilaminar Membrane type S/N 805-247, 1-50MHz, NPL calibration
on 11/22/99
(There are several additional hydrophones used for practice)
(15) Needle type hydrophones:
Precision Acoustics, 0.2mm diameter
Force Institute, 0.6mm, 1.0 mm diameters
(There are several additional hydrophones used for practice)
(16) Shock wave hydrophone system: Sonic Industries Model 1000
(17) Microscope, (Bausch & Lomb, StereoZoom 4)
(18) Electric Oven (Blue M, 5 cu ft., Temp. Range: 38(degree)C - 260(degree)C)
(19) Degassing equipment (Make: MV products, Chamber size: 5 cu ft.; Vacuum:
0.5mbar)
(20) Personal computer for new measurement setup (Midwest Micro, 233MHz, 32MB
RAM), including GPIB interface, LabView software development suite
(21) Personal computer for report writing (Midwest Micro, 233MHz, 32MB RAM)
(22) HP 7470A and HP 7475A plotters
(23) Laser Printer, (BLP Elite 600)
(24) Small vacuum pump (Xxxx, Model 400-005)
(25) Epoxy dispensing system (EFD, Model 800V)
(26) Weighing Scale (Xxxxxx Scientific)
(27) Xxxx microbalance (Model RM2)
(28) Doppler Phantom (BBS Medical Electronic AB)
(29) Calibration/test sources:
NIST Reference Calibration Source SRM 1885, with matching network Seven
single element ultrasound transducers
(30) Miscellaneous fixturing for transducer positioning, including catheter
probes, surgical ultrasonic scalpels and phacoemulsifiers.
(31) Hydrophone manufacturing equipment, including sputtering masks, alignment
fixtures, pressing fixture (to make ultra-thin PVDF bonds), pressure
gauging system, etc.
(32) Research spark-type lithotripsy system, operable up to 30kV, with scanning
tank. Uses Dornier-style shock plugs
(33) Two water tanks with manual positioning systems of different positional
capability and accuracy, including a calibration tank specifically
designed for but never purchased by Hearing Innovations.
(34) Two filing cabinets containing records for prior measurement work.
(35) One storage cabinet for hydrophone storage
(36) Two plastic racks for equipment storage
(37) All hydrophone inventory, including work in process, raw film stock,
housings, connectors, containers and miscellaneous components.
SCHEDULE 1.1(b)
ACCOUNTS, NOTES RECEIVABLE AND AMOUNTS OWING
FOR WORK IN PROCESS AS OF CLOSING DATE
No work in process at time of closing
SCHEDULE 1.1(c)
PATENTS, TRADEMARKS, TRADE NAMES, COPYRIGHTS
AND OTHER INTELLECTUAL PROPERTY RIGHTS
(1) Assignment of U.S. patent "Shock Wave Hydrophone with Self-Monitoring
Feature, # 5,072,426"
(2) Copyright for Software and report formats used for FDA 510(K) testing and
submissions.
(3) All of Seller's right, title and interest in the name "Sonic
Technologies".
SCHEDULE 1.1(d)
COMPUTER SOFTWARE, PROGRAMS AND DATA BASES
(1) Proprietary measurement software for FDA 510(k) testing of ultrasound
probes. Software has previously been sold to both the FDA and other
ultrasound manufacturers for in-house testing. Provides axial scanning
for peak location, automatic beam search capabilities, cross-axis beam
scanning, raster beam scanning, pressure wave analysis for all regulated
acoustic properties. Also provides data in IEC format as required.
(2) Proprietary report format for FDA reporting, developed in cooperation with
the FDA (by the 510(k) submission process) for diagnostic ultrasound
applications. In addition, measurements have been performed in support of
the following national and international standards:
o U.S. Food and Drug Administrations (FDA) "510(k) Guide for Measuring
and Reporting the Acoustic Output of Diagnostic Ultrasound Medical
Devices"
o AIUM/NEMA UD-2 "Acoustic Output Measurement Standard for Diagnostic
Ultrasound Equipment"
o AIUM/NEMA UD-3 "Standard for Real-Time Display of Thermal and
Mechanical Acoustic Output Indices on Diagnostic Ultrasound
Equipment" (FDA Track III)
o International Electrotechical Commission (IEC) IEC-1157 "Requirements
for the Declaration of the Acoustic Output of Medical Diagnostic
Ultrasonic Equipment"
o International Electrotechical Commission IEC-61847 "Ultrasonics -
Surgical Systems - Measurement and Declaration of the Basic Output
Characteristics"
o International Electrotechical Commission IEC-60601-2-5 "Medical
Electrical Equipment - Part 2-5: Particular Requirements for the
Safety of Ultrasonic Physiotherapy Equipment"
o International Electrotechical Commission IEC-61846 "Ultrasonics -
Pressure Pulse Lithotripters - Characteristics of Fields"
o CENELEC European Standard EN 45502-1 "Active Implantable Medical
Devices - Part 1: General Requirements for Safety, Marking and
Information to be Supplied by the Manufacturer"
(3) Copies of previously completed reports; customer files, including data
files, hardcopy records, and correspondences; lead files; Standards
history files (as available); all pertinent written materials.
SCHEDULE 1.1(e)
EXECUTORY CONTRACTS AND OTHER OPEN PURCHASE ORDERS
(1) Open purchase orders from the following companies, including P.O. number,
order date, type of job, and P.O. Amount:
COMPANY P.O. # DATE TYPE AMOUNT
--------- -------- ------ ------ ---------
Neurosoft, Inc. 2185 3/23/2000 Lab 8,000.00
Sonovision 1800 7/19/2000 Lab 17,820.00
Csiro Telecomm. & Ind Physics 1470 8/14/2000 Hydrophone 7,900.00
Eastek Corporation 1221002 8/24/2000 Hydrophone 5,900.00
Xxxxxxxxxxxx Xxxxx Xxxx. 000000 8/31/2000 Hydrophone 4,950.00
PharmaSonics PO2332 9/8/2000 Hydrophone 7,900.00
SCHEDULE 1.1(i)
ASSIGNABLE PERMITS, LICENSES, APPROVALS, CERTIFICATIONS AND LISTINGS
None
SCHEDULE 1.1(j)
CURRENTLY EFFECTIVE LEASES OF EQUIPMENT AND OTHER PERSONAL PROPERTY
None
SCHEDULE 1.2
EXCLUDED ASSETS
(1) All desks, desk units, chairs, tables, room dividers, partitions,
cabinets, filing cabinets, work benches, laboratory benches, and other
general office equipment, collocated in the laboratory/measurement/
production areas with the included assets.
(2) All accounts receivable relating to purchase orders completed prior to the
Closing. The list below provides a current listing of items, giving
customer, Invoice Number, and amount.
CUSTOMER INVOICE AMOUNT
-------- ------- ------
Cheju National University 099148 132.00
Xxxxxxxxx Corporation 098828 1650.00
Medison America 098822 6600.00
Medizintechnik Xxxxxx 099137 8000.00
Sonora Medical Systems 000439 14025.00
Neurosoft 00431-3 5000.00
Neurosoft 00431-4 5000.00
U-Systems, Inc. 00434 5,900.00
Generex Corporation 00435 6,100.00
SCHEDULE 3.1
ASSUMED LIABILITIES
The following is a list of liabilities for items or services ordered and not
yet received (to be delivered to Purchaser); ordered, received and not yet
paid.
Open Purchase orders:
COMPANY P.O. # AMOUNT DATE ORDERED
--------- -------- -------- --------------
Measurement Specialties 1029 3940.00 8/10/00
Items/Services received but not yet paid:
COMPANY P.O. # AMOUNT DATE RECEIVED
--------- -------- -------- ---------------
Xxxxxxx Xxxxxxxx & Co. 1026 214.88 8/29/00
Chesney Precision 1028 1,168.00 9/19/00
Sonic Consulting 1045 1200.00 9/29/00
SCHEDULE 5.1 (m)
WARRANTY OR GUARANTEE OBLIGATIONS FOR WHICH PURCHASER IS RESPONSIBLE
Although Purchaser assumes no obligation to customers for Warranty support for
sales by Seller prior to the Closing, the Parties acknowledge that after the
sale, Seller will no longer have the capability of performing warranty or other
services on these systems. Consequently, Purchaser agrees, as a condition of
the Sale, to perform all required warranty work on the systems listed in the
Table below, which systems represent all of those on which there remain
Warranty obligations by Seller related to the Business. These obligations
terminate one year after the Date of Sale as listed on the Table. All requests
for warranty repair ("Work") shall be referred to the Purchaser for
disposition, and the Purchaser will invoice Seller for the costs reasonably
incurred in performing this Work. For this purpose "costs" consist of material
costs, and labor and labor related expenses, but not G&A expenses or profit.
All warranty repair estimates that exceed five hundred dollars ($500) shall be
referred to Seller's representative for approval before the Work commences.
Payment for completing the Work shall be made within thirty (30) days of
invoicing.
CUSTOMER PO. NO. DATE
Generex Corporation GSI-9610 10/12/1999
U.S. Naval Academy 80399 10/12/1999
Boston University CR157393 10/12/1999
Applied Physics Laboratory, UW 933205 11/30/1999
Physikalisch-Technische Bundesanstalt 12/21/1999
University of CA, San Diego 10168639-001 1/31/2000
University of Washington P144900 2/16/2000
University of Michigan 3000124472 3/13/2000
Kagoshima University 1112000 5/30/2000
U-Systems, Inc. 200144 9/29/2000
Generex Corporation GSI-9614 9/29/2000
SCHEDULE 5.1(o)
PURCHASE ORDERS AND CONTRACTS FOR WHICH PURCHASER IS OBLIGATED
See Schedule 1.1 (e).
SCHEDULE 5.1(p)
MISCELLANEOUS CONTRACTS FOR WHICH PURCHASER IS OBLIGATED
None
EXHIBIT A
ALLOCATION OF PURCHASED ASSETS
The Purchased assets shall be allocated to the Purchase Price as Follows:
(a) The sum of $20,000 for the tangible assets set forth in SCHEDULE 1.1(a).
(b) The sum of $250,000 for all other Purchased Assets conveyed by this
Agreement.
EXHIBIT B
CERTIFICATE OF SELLER
I, _____________________________, ___________________ of Perceptron, Inc., a
Michigan corporation, do hereby certify that Perceptron, Inc. has taken all
corporate action necessary to approve the transactions contemplated by the
Asset Purchase Agreement between Perceptron, Inc. and Sonora Medical Systems,
Inc. dated September 30, 2000.
(Name) ________________________________
(Title) ________________________________
EXHIBIT C
CERTIFICATE OF PURCHASER
EXHIBIT D
GENERAL XXXX OF SALE
WITH RESPECT TO
CERTAIN ASSETS OF
PERCEPTRON, INC.
This is a General Xxxx of Sale, Conveyance, Assignment and Transfer of
Assets ("Instrument") made, executed and delivered by Perceptron, Inc, a
Michigan corporation ("Seller"), in favor of Acoustic Market Research, Inc.
d/b/a Sonora Medical Systems, Inc., a Colorado corporation, ("Purchaser") with
respect to the conveyance by Seller to Purchaser pursuant to that certain Asset
Purchase Agreement between Buyer and Seller, dated September 30, 2000,
("Agreement") of certain assets of Seller, and by which Seller and Purchaser,
for good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, hereby agree as follows:
1. Seller does hereby sell, convey, assign and transfer unto Purchaser
all right, title and interest, legal and equitable, of Seller in and
to all the assets and properties of Seller defined and listed on
Schedules 1.1(a), 1.1(b), 1.1(c), 1.1(d), 1.1(e), 1.1(i), and 1.1(j)
of the Agreement as Purchased Assets, attached hereto and made a part
hereof ("Purchased Assets") to have and to hold each and all the
Purchased Assets for its own use and behalf in perpetuity.
2. Seller hereby warrants, covenants and agrees that it has good and
marketable title to the Purchased Assets, and, except as provided in
the Agreement, free and clear of any and all Liens whatsoever. EXCEPT
AS TO SELLER'S TITLE AND EXCEPT AS SET FORTH IN THE AGREEMENT, SELLER
MAKES NO OTHER REPRESENTATIONS OR WARRAN TIES OF ANYH KIND, EXPRESS
OR IMPLIED, WITH RESPET TO THE CONDITION OF THE PURCHASED ASSETS, AND
ALL WARRANTIES, EXPRESS OR I MPLIED, OF ANY KIND WHATSOEVER,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTRICULAR PURPOSE ARE EXPRESSLY
EXCLUDED.
3. Seller hereby constitutes and appoints Purchaser, its successors and
assigns, the true and lawful agent and attorney-in-fact of Seller, in
the name and stead of Seller, but on behalf of and for the benefit of
Purchaser, its successors and assigns, to demand and receive from
time to time any and all of the Purchased Assets and to give receipts
and releases for or with respect to the same, and from time to time
to institute and prosecute in the name of Seller, or otherwise, but
on behalf of and for the benefit of Purchaser, its successors or
assigns, any and all proceedings at law or equity, which Purchaser
may deem proper, to collect, assert or enforce any claim, right or
title of any kind in or to the Purchased Assets and to defend or
compromise any or all actions, suits or
proceedings with respect to any of the Purchased Assets and to do all
such acts in relation thereto as Purchaser shall deem necessary or
desirable
4. Seller hereby declares that the appointment made and the powers
granted in this instrument are coupled with an interest and are nor,
and shall not be, revocable by Seller in any manner or for any reason
whatsoever.
5. This Instrument is effective as of 12:01 a.m. EST on October 1, 2000.
6. Article 2, Purchase Price, of the Agreement is hereby incorporated
into this Instrument and made a part thereof.
DULY EXECUTED and delivered by the parties to this instrument, under seal,
on October 2, 2000.
Seller: _______________________
Signed, sealed and delivered
Before the undersigned on
October 2, 2000
Purchaser: _____________________
Signed, sealed and delivered
Before the undersigned on
October 2, 2000
NOTARY
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSUMPTION AND ASSIGNMENT AGREEMENT is made and entered into this
first day of October, 2000, by and between Perceptron, Inc, a Michigan
corporation ("Seller") and Acoustic Market Research, Inc. d/b/a Sonora Medical
Systems, Inc., a Colorado corporation, ("Purchaser")
WITNESSETH
WHEREAS, in accordance with the terms of the Asset Purchase Agreement,
dated September 29, 2000, between Seller and Purchaser, ("Agreement"), Seller is
selling and assigning to Purchaser, and Purchaser is purchasing, accepting
assignment and assuming from Seller, Seller's right, title, interest and
obligations in, to and under certain contracts and other agreements of Seller,
which have been expressly assumed by Buyer under the Agreement ("Contracts");
and
WHEREAS, Seller and Purchaser desire to effect the transfer and
assignment to Purchaser of Seller's right, title and interest in, to and under
the Contracts and to evidence the assumption by Purchaser of all obligations and
duties thereunder,
NOW, THEREFOR, in consideration of the premises and payment of the
purchase price provided for in the Agreement, the receipt and sufficiency of
which is hereby acknowledged, it is agreed as follows:
1. Seller hereby assigns and transfers to Buyer, its successors and
assigns, forever, without reservation, all of Seller's right,
title and interest in, to and under the Contracts, and delegates
to Purchaser all of its duties and responsibilities under the
Contracts performable after the date hereof.
2. Purchaser hereby accepts the foregoing assignment and
acknowledges and agrees to be bound by the provisions contained
in the Contracts, and by such acceptance of such assignment,
Purchaser hereby assumes and agrees that it will promptly keep
and perform each of Seller's obligations under the Contracts
which are to be kept and performed after the date hereof to the
same extent as if Purchaser had been an original party thereto.
3. This Assignment and Assumption Agreement has been executed and
delivered pursuant to the Agreement but shall not be seemed to
modify or supersede the Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Assignment and
Assumption Agreement to be executed in counterparts on the date first above
written.
PERCEPTRON, INC. ACPOUSTIC MARKET RESEARCH, INC.
d/b/a SONORA MEDICAL SYSTEMS, INC.
By: __________________________ By: _____________________________
Its: __________________________ Its: _____________________________
EXHIBIT F.1
SELLER'S OPINION OF COUNSEL
ASSET PURCHASE AGREEMENT
September 30, 2000
I am a legal representative of Perceptron, Inc., the Seller in this transaction
and have acted as counsel to the Company in connection with the proposed sale
of certain assets to Acoustic Market Research, Inc. d/b/a Sonora Medical
Systems, Inc. ("Purchaser") pursuant to an Asset Purchase Agreement
("Agreement"), dated September 30, 2000. For the purposes of this opinion, I
have reviewed all certificates, agreements, instruments and documents as I
deemed necessary in rendering the opinions expressed herein. Except as
otherwise provided herein, terms defined in the Agreement shall have their
respective defined meanings when used herein.
In making such examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted as originals and the conformity to
authentic documents of all documents submitted as certified, conformed and
photostatic copies. As to questions of facts material to such opinions, I have,
when relevant facts were not independently established by me, relied upon
statements made in the documents, records and certificates referred to above.
Based upon the foregoing and subject to the exceptions, qualifications and
limitations herein set forth, I am of the opinion that.
1. Perceptron, Inc. is a corporation duly organized, validly existing and in
good standing under the laws of the State of Michigan, and is duly
qualified or licensed as a foreign corporation authorized to do business
in all states in which it is required to be so qualified in order to
conduct the Business; except for those qualifications or licenses, the
failure of which to obtain would not have a material adverse effect on the
financial position of Purchaser.
2. Perceptron, Inc. has full corporate power and authority to execute and
deliver the Agreement and all documents and instruments referred to
therein and to carry out the terms and conditions thereof. Perceptron has
taken all corporate action necessary, if any, to authorize the execution,
delivery and performance of the Agreement and all related documents and
instruments. The Agreement, the instruments of transfer, assignment and
conveyance contemplated by the Agreement to be delivered by Perceptron in
connection therewith, and each document delivered by Perceptron in
connection therewith, constitute a valid and binding obligation of
Perceptron. Inc. enforceable in accordance with their respective terms and
conditions.
3. The execution, delivery and performance of the Agreement, and the
performance of the acts contemplated to be performed by it under the
Agreement, do not violate or constitute a default under any mortgage,
loan, promissory note, or similar agreement to which Perceptron is a
party, or by which it is bound, the Company's charter or by-laws, any
court injunction or decree or any valid and enforceable order of a
governmental agency having jurisdiction over the Company.
In rendering such opinion, I have limited my opinion to the application of
United States Federal, and applicable State laws and have not verified the
effect of the laws of any other jurisdiction on the subject hereof. This
opinion may not be relied upon by any other parties without my express written
consent.
Very truly yours
Xxxxxxx X. Xxxxx, Esq.
EXHIBIT F.2
PURCHASER'S OPINION OF COUNSEL
ASSET PURCHASE AGREEMENT
September 30, 2000
EXHIBIT G
GOVERNMENT/REGULATORY APPROVALS
None
EXHIBIT H
THIRD PARTY CONSENTS
None.
