Exhibit 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), made and entered into
this 11th day of November, 1999, by and between Partec Ltd., an Israeli company
("Seller"), and B.R.T Biopharmaceuticals, Ltd., an Israeli company ("Buyer");
WITNESSETH:
WHEREAS, Seller is a biopharmaceutical company engaged in the development of
products and technologies for the biopharmaceutical market.
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller,
certain assets of Seller (the "Assets"), and Seller desires to transfer, and
Buyer is willing to assume, certain liabilities of Seller (the "Liabilities"),
all upon the terms and conditions and subject to the limited exceptions set
forth herein;
WHEREAS, Seller expects to terminate its employment or engagement of certain of
its employees and consultants involved with the Projects, and Buyer desires to
hire or retain certain of such employees or consultants, all upon the terms and
conditions set forth herein;
WHEREAS, Buyer is a wholly owned subsidiary of LRK Biopharmaceuticals, Inc.
("LRK") to which Seller intends to sell certain other assets and transfer and
assign certain other liabilities and agreements to which Seller is a party, all
upon the terms and conditions set forth in a separate agreement between Seller
and LRK; and
WHEREAS, in furtherance of the parties' mutual desire for specificity with
respect to the assets and liabilities to be transferred by Seller to Buyer
pursuant to this Agreement, the parties desire to provide for the scheduling
and, where appropriate, segregation of such assets and liabilities on a date
certain to occur prior to Closing (as hereinafter defined) (the "Determination
Date");
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, and agreements of the parties hereinafter set forth, the parties
hereto, intending to be legally bound, do hereby agree as follows:
Section 1
PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale of Assets. Upon the terms and subject to the
condition of this Agreement, Buyer agrees to purchase, accept, and acquire from
Seller, and Seller agrees to sell, transfer, assign, convey, and deliver to
Buyer, at the Closing, all right, title, and interest of Seller in and to all of
the rights and assets, real, personal, and mixed, tangible or intangible, in the
Assets or otherwise relating primarily to the. Assets, as owned or held by
Seller, subject to such express exclusion. Without in any way limiting the
generality of the foregoing, the Assets shall include all right and interest
owned or held by Seller in the following:
a. Fixed Assets. All those physical items owned by Seller as of the
Determination Date, as indicated in Schedule 1.1.a.
b. Contracts. All of Seller's rights under those contracts,
agreements, licenses, commitments, arrangements, permissions and all other
legally binding arrangements, whether oral or written (the "Contracts") listed
in Schedule 1.1.b.
c. Business Records. All business and marketing records, including
accounting and operating records, asset ledgers, inventory records, budgets,
personnel records, payroll records, customer lists, employment and consulting
agreements, supplier lists, files, correspondence and mailing lists, promotional
materials and brochures, and other business records used or developed in
connection with the Assets (the "Business Records").
d. Accounts Receivable. All accounts receivable, including all
license fees and maintenance fees and charges owing or to become owing to Seller
under any of the Contracts, in each case relating to or arising from
the Assets (the "Accounts Receivable"). As of the Determination Date, the
Accounts Receivable consist of the items listed in Schedule 1.1.e.
e. Insurance Policies. All insurance and reinsurance, surety,
bonding, or indemnity policies, binders, or contracts, and the benefits of any
prior insurance coverage to the extent still available, as established or
obtained with respect to the Seller's business (the "Insurance Policies"). As of
the Determination Date, the Insurance Policies consist of the items listed in
Schedule 1.1.f.
f. Claims. All claims Seller may have against any person relating to
or arising from the Assets or the Projects, including rights to recoveries for
damages or defective goods, to refunds, and insurance claims ("Claims").
1.2 Intent of the Parties. Although the Schedules to this Agreement are
intended to be complete, to the extent any rights or assets of Seller primarily
relate to the Projects or are otherwise necessary for the ownership and use of
the Assets and the conduct of the Projects, but are not properly itemized or do
not appear on the applicable Schedules where required, then, unless this
Agreement expressly excludes such rights or assets or otherwise provides
directly for Buyer to provide for or obtain such rights or assets in a different
way, the general language of Section 1.1 shall govern and such rights and assets
shall nonetheless be deemed transferred to Buyer at Closing. It is mutually
acknowledged that the Schedules to Section 1.1 are to be prepared as of the
Determination Date, and consequently the Assets so identified may vary on the
Closing Date because of the ongoing operations of the Projects. Further, because
the Determination Date will occur following the execution of this Agreement, the
omission of such Schedules until such time on or shortly after the Determination
Date as they have been completed and the parties have agreed on their contents
shall not impair the effectiveness of this Agreement.
1.3 Excluded Assets. Seller shall not sell or assign to Buyer, and Buyer
shall not purchase or accept assignment from Seller of, the assets identified in
Schedule 1.3 (the "Excluded Assets").
Section 2
ASSUMPTION OF LIABILITIES
2.1 Enumeration of Assumed Liabilities. At and after the Closing, Buyer
shall assume and agree to pay or perform only the liabilities and obligations of
Seller that arise out of the Assets and/or are expressly identified in this
Section 2.1 (the "Assumed Liabilities") or are represented by any other
covenant, agreement, or indemnity of Buyer in this Agreement or the other
agreements and instruments to be executed and delivered by Buyer in connection
with this Agreement. Subject to the express exclusions set forth in Section 2.2,
the Assumed Liabilities shall consist of the following:
a. Trade Payables. All accrued trade payables of Seller arising out
of the Assets as set forth in Schedule 2.1.a.
b. Accrued Taxes. All of Seller's liability for Israeli tangible or
intangible property taxes.
c. Contracts. All payment and performance obligations arising out of
or relating to the Contracts.
d. Employee Liabilities. Any employee liabilities relating to
present and past employees of the Seller with respect to plans, programs,
policies, commitments, and other benefit entitlement established or existing on
or prior to Closing (whether or not such liabilities are accrued or payable at
Closing, and whether or not such liabilities are contingent in nature),
including, without limitation:
(i) Any liability or obligation for workers' compensation.
(ii) Any current or future liabilities to employees retiring
on, before, or after Closing, and their dependents.
(iii) Any current or future liabilities for benefits that
may have been accrued or earned by any employees associated with the Seller's
business on or before Closing under any pension, provident or management
insurance, or continuing education fund plans relating to service prior to the
Closing Date.
(iv) Any current of future liabilities for claims incurred
prior to Closing and related expenses with respect to any employees associated
with the Seller's business under any welfare or disability plans established or
existing at or prior to Closing, regardless of when filed with Buyer, Seller, or
the claims administrator for any such plan.
(v) Any retrospective premium on pension, savings, thrift,
or profit-sharing plan contribution relating to any employees associated with
Seller's business incurred or accrued prior to the Closing Date, regardless of
when invoiced or recorded.
(vi) Any monetary liability for severance payments that may
arise at any time in favor of any of Seller's employees under any plan, program,
policy, commitment, or other benefit entitlement, or by reason of law.
(vii) Any liability for outstanding leave pay or any other
payments owing to any employee pursuant to any personal or collective agreement
or any extension order.
2.2 Liabilities Not Assumed. Without in any way expanding the specificity
and limitation of Section 2.1, Buyer shall not assume or be responsible for any
of the following liabilities or obligations expressly identified in this Section
2.2 (the "Excluded Liabilities"):
a. Violations of Law. Any liability or obligation resulting from
violations of any applicable laws or regulations by Seller prior to the Closing
Date.
b. Incidents to Excluded Assets. Any liability or obligation
associated with any of the Excluded Assets.
c. Litigation. Any claim or litigation pending against Seller at the
time of the execution of this Agreement.
d. Liabilities Assumed by Buyer's Parent. Any liability or
obligation of Seller assumed by LRK pursuant to the agreement between Seller and
LRK, dated November 10, 1999.
2.3 Intent of the Parties. Although the Schedules to this Agreement are
intended to be complete, to the extent any liabilities of Seller arise out of
the Assets or are otherwise related to the Assets, but are not properly itemized
or do not appear on the applicable Schedules where required, then, unless this
Agreement otherwise specifically provides otherwise, the general language of
Section 2.1 shall govern and such liabilities, known or unknown, contingent or
otherwise, shall nonetheless be deemed assumed by Buyer at Closing. It is
mutually acknowledged that the Schedules to Section 2.1 are to be prepared as of
the Determination Date, and consequently the Assumed Liabilities so identified
may vary on the Closing Date because of the effect of the ongoing operations of
the Projects. Further, because the Determination Date will occur following the
execution of this Agreement, the omission of such Schedules until such time on
or shortly after the Determination Date as they have been completed and the
parties have agreed on their contents shall not impair the effectiveness of this
Agreement.
Section 3
PRICE AND PAYMENT
3.1 Purchase Price. The aggregate purchase price for the Assets (the
"Purchase Price") shall be the value of the Assumed Liabilities, together with
$77,293 plus Value Added Tax ("VAT").
3.2 Method of Payment.
a. On the Closing Date, Buyer shall deliver to Seller an agreement,
substantially in the form attached hereto as Exhibit A, pursuant to which Buyer
assumes the Assumed Liabilities (the "Assignment and Assumption Agreement"); and
b. Within fourteen (14) days of the Closing Date, Buyer shall
transfer to the Seller's bank account held at Bank Leumi Leyisrael Ltd. under
account number 00000000 the amount of $72,340 plus VAT.
Section 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
4.1 Organization. Seller is a company validly existing under the laws of
the State of Israel with the corporate power and authority to conduct its
business (including the Projects) and to own and lease its properties and assets
(including the Assets) and, as to the use and ownership of the Assets
specifically, is duly qualified or licensed to do business in the State of
Israel.
4.2 Power and Authority. Seller has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by it in connection with the transactions contemplated
hereby and thereby, has taken all necessary corporate action to authorize the
execution and delivery of this Agreement and such other agreements and
instruments and the consummation of the transactions contemplated hereby and
thereby. This Agreement is, and the other agreements and instruments to be
executed and delivered by Seller in connection with the transactions
contemplated hereby shall be, the legal, valid, and binding obligations of
Seller, enforceable in accordance with their terms.
4.3 No Conflict. Neither the execution and delivery of this Agreement and
the other agreements and instruments to be executed and delivered in connection
with the transactions contemplated hereby or thereby, nor the consummation of
the transactions contemplated hereby or thereby, will violate or conflict with
(1) any law, regulation, ordinance, zoning requirement, governmental
restriction, order, judgment, or decree applicable to Seller or the Assets, (2)
any provision of the Articles of Association or other governing or
organizational instrument of Seller, or (3) except insofar as Required Contract
Consents, as defined below, are to be procured prior to Closing, any mortgage,
indenture, license, instrument, trust, contract, agreement, or other commitment
or arrangement to which Seller is a party or by which Seller or any of the
Assets is bound.
4.4 Required Government Consents. No approval, authorization,
certification, consent, variance, permission, license, or permit to or from, or
notice, filing, or recording to or with, any governmental authorities is
necessary for the execution and delivery of this Agreement and the other
agreements and instruments to be executed and delivered in connection with the
transactions contemplated hereby or thereby by Seller or the consummation by
Seller of the transactions contemplated hereby or thereby, or the ownership and
use of the Assets (including by Buyer).
4.5 Contract Consents. No approval, authorization, consent, permission, or
waiver to or from, or notice, filing, or recording to or with, any person is
necessary for (1) the execution and delivery of this Agreement and the other
agreements and instruments to be executed and delivered in connection with the
transactions contemplated hereby or thereby by Seller or the consummation by
Seller of the transactions contemplated hereby; (2) the transfer and assignment
to Buyer at Closing of the Contracts, or the Insurance Policies, or (3) the
ownership and use of the Assets (including by Buyer).
4.6 Good and Marketable Title. Buyer at Closing shall obtain good and
marketable title to all of the tangible Assets free and clear of all title
defects, liens, restrictions, claims, charges, security interests, or other
encumbrances of any nature whatsoever, including any mortgages, leases, chattel
mortgages, conditional sales contracts, collateral security arrangements, or
other title or interest retention arrangements.
4.7 Condition of Property. All of the tangible Assets are in good
operating order, condition, and repair, ordinary wear and tear excepted, and are
suitable for use in the ordinary course.
4.8 Contracts. The Contracts listed in Schedule 1.1.b are valid, binding,
and enforceable in accordance with their terms and are in full force and effect.
To the best of Seller's knowledge, there are no existing defaults by Seller
under any such contracts and no act, event, or omission has occurred that,
whether with or without notice, lapse of time, or both, would constitute a
default thereunder.
4.10 Accounts Receivable. All Accounts Receivable are fully collectible
within the customary collection cycle, subject only to bad debts. All Accounts
Receivable call for payment to be made within at least ninety (90) days to the
principal office of the Seller or otherwise in accordance with Israeli law.
4.11 Conduct of Business.
a. Ordinary Course of Business: No Removal or Disposal of Assets.
Seller has operated its business in the ordinary course consistent with past
practices, and has not removed or disposed of any Assets as of September 30,
1999 except in the ordinary course.
b. No Material Adverse Change. Since September 30, 1999, there has
been no material adverse change in the Assets.
c. Absence of Particular Events. Since September 30, 1999, Seller
has not (1) suffered any damage or destruction adversely affecting the Assets in
the amount of $1,000 in any one instance; (2) increased the compensation payable
or to become payable to employees of Seller having annual earnings in excess of
$100,000 per year or declared any bonus; (3) incurred any liability or
obligation relating to the Assets other than in the ordinary course consistent
with past practice; (4) made any change in any method, practice, or principle of
accounting involving the Assets; (5) paid, loaned, or advanced any material
monetary amount or other asset to, or sold, transferred, or leased any asset to,
any employee except for normal compensation involving salary and benefits; or
(6) agreed to take any action described in this Section 4.11.c.
4.12 Litigation. Except as set forth in Schedule 4.12, no claim, action,
suit, proceeding, inquiry, hearing, arbitration, administrative proceeding, or
investigation (collectively, "Litigation") is pending, or, to Seller's best
knowledge, threatened against Seller, its present or former directors, officers,
or employees, or any party to any Contract, affecting, involving, or relating to
any of the Assets. Except as set forth in Schedule 4.12, no Litigation has been
brought within the last three years against Seller affecting, involving, or
relating to any of the Assets. Seller knows of no facts that could reasonably be
expected to serve as the basis for Litigation against itself (or the Buyer upon
acquisition of the Assets),its present or former directors, officers, or
employees, or any party to the, affecting, involving, or relating to the Assets.
4.13 Compliance With Laws. There is no outstanding or, to Seller's best
knowledge, threatened order, writ, injunction, or decree of any court,
governmental agency, or arbitration tribunal against Seller affecting,
involving, or relating to the Assets. Seller is not in violation of any
applicable federal, state, or local law, regulation, ordinance, zoning
requirement, governmental restriction, order, judgment, or decree affecting,
involving, or relating to the Assets except where noncompliance has no material
adverse effect upon the Assets, and Seller has received no notices of any
allegation of any such violation. The foregoing shall be deemed to include laws
and regulations relating to patent, copyright, trademark, trade secret and
unfair competition laws, and to all other applicable laws, including equal
opportunity, wage and hour, and other employment matters, and antitrust and
trade regulation laws.
4.14 Personnel and Compensation
a. List of Personnel. Seller shall have delivered to Buyer prior to
Closing a true and complete list of the names and current compensation levels of
(1) all salaried or annual employees and (2) all consultants involved in its
business, to be set forth in Schedule 4.14.a.
b. Compensation, etc. Except as set forth in Schedules 4.14.a. and
4.14.c., Seller is not subject to, and has no obligation under, any employment,
consulting, or collective bargaining contracts, deferred compensation, pension,
profit-sharing, bonus, stock option, stock appreciation, stock purchase, or
other nonqualified benefit or compensation commitments, benefit plans,
arrangements, or plans, including any welfare plans, fringe benefit
arrangements, of or pertaining to the present or former employees involved in
the Seller's business. Except as set forth in Schedule 2.1.a, Seller has
complied with all of its obligations under the foregoing in all material
respects.
c. Employee Benefit Plans. Schedule 4.14.c identifies all of the
retirement, provident, pension, management insurance, savings and continuing
education fund plans, by plan name and plan year, that Seller has established
for the benefit of persons who are or were involved in the Seller's business
(the "Plans"). Subsequent to the Closing, the Plans and their administration
shall become the sole responsibility of Buyer.
d. Compliance with Laws. To the best of Seller's knowledge, Seller
is in compliance with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, and
occupational safety and health pertaining to the employees involved in the
Seller's business. There is no labor strike, dispute, slowdown, or stoppage
pending or threatened against Seller. Apart from the litigation described in
Schedule 4.12.a, to the best of Seller's knowledge, there are no charges,
investigations, administrative proceedings, or formal complaints of
discrimination pending or, to the knowledge of Seller before any agency or court
against Seller, and, to the knowledge of the Seller, no basis for any such
charge, investigation, administrative proceeding, or complaint exists.
4.15 Insurance Policies. Schedule 1.1.f lists all Insurance Policies
relating to the Seller's business or the Assets in force as of the Determination
Date, naming Seller as an insured or beneficiary or as a loss-payable payee or
for which Seller has paid or is obligated to pay all or part of the premiums.
Seller has not received notice of any pending or threatened termination or
retroactive premium increase with respect thereto; and Seller is in compliance
with all conditions contained therein, the noncompliance with which could result
in termination of insurance coverage or increased premiums for prior or future
periods. There are no pending material claims against such insurance by Seller
as to which insurers have denied liability or are defending under any
reservation of rights, and, to the knowledge of Seller, there exists no material
claim under such insurance that has not been properly filed by Seller.
4.16 Broker's or Finder's Fees. Seller has not authorized any person to act
as broker or finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement in any manner that may or will
impose liability on Buyer.
4.17 Schedules Yet to Be Prepared. The Schedules to be prepared as of the
Determination Date shall be true and complete when submitted for inclusion in
this Agreement and shall set forth all information sought by this Agreement with
respect thereto.
4.18 Disclosure. No representation, warranty, or statement made by Seller
in this Agreement or in any document or certificate furnished or to be furnished
to Buyer pursuant to this Agreement contains or will contain any untrue
statement or omits or will omit to state any fact necessary to make the
statements contained herein or therein not misleading. Seller has disclosed to
Buyer all facts known or reasonably available to Seller that are material to the
Assets and the Assumed Liabilities.
4.19 Truth at Closing. All of the representations, warranties, and
agreements of Seller contained in this Article IV shall be true and correct and
in full force and effect on and as of the Closing Date.
4.20 Materiality Defined. For purposes of this Agreement, each reference to
any material adverse effect upon the Assets, or any other reference to a
material item or circumstance, shall be construed to include any act, omission,
event, or circumstances that would entail loss, liability, damage, or expense to
Buyer (with respect to the rights and benefits expected by Buyer to be obtained
under this Agreement) of $50,000 in any single instance, whether under one or
more representations, warranties, covenants, or agreements contained herein, or
$200,000 in the aggregate, taken as a whole under all representations,
warranties, covenants, and agreements contained herein.
4.21 Disclaimer. Except as expressly set forth in this Agreement or in any
document, certificate, agreement, or other instrument furnished or to be
furnished to Buyer pursuant to this Agreement, SELLER MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE ASSETS, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
5.1 Organization. Buyer is a corporation validly existing and in good
standing under the laws of the State of Delaware with the corporate power and
authority to conduct its business and to own and lease its properties and
assets. Buyer is duly qualified or licensed to do business and is in good
standing as a foreign corporation in each state in which the failure to be so
qualified or licensed would have a material adverse effect on its financial
condition or operations.
5.2 Power and Authority. Buyer has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by it in connection with the transactions contemplated
hereby and thereby, and Buyer has taken all necessary corporate action to
authorize the execution and delivery of this Agreement and such other agreements
and instruments and the consummation of the transactions contemplated hereby and
thereby. This Agreement is, and, when such other agreements and instruments are
executed and delivered, the other agreements and instruments to be executed and
delivered by Buyer in connection with the transactions contemplated hereby and
thereby shall be, the legal, valid, and binding obligation of Buyer, enforceable
in accordance with their terms.
5.3 Broker's or Finder's Fees. Buyer has not authorized any person to act
as broker, finder, or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
5.4 No Conflict. Neither the execution and delivery by Buyer of this
Agreement and of the other agreements and instruments to be executed and
delivered by Buyer in connection with the transactions contemplated hereby or
thereby, nor the consummation by Buyer of the transactions contemplated hereby
or thereby will violate or conflict with (1) any law, regulation, ordinance,
governmental restriction, order, judgement, or decree applicable to Buyer, or
(2) any provision of any charter, bylaw, or other governing or organizational
instrument of Buyer.
Section 6
CONDUCT OF THE PROJECTS PRIOR TO CLOSING
6.1 Course of Business. Seller shall conduct the Projects diligently and
substantially in the same manner as heretofore conducted, and Seller shall not
institute any new methods of accounting or operation or engage in any
transaction or activity, enter into any agreement, or make any commitment,
except in the ordinary course of such business and consistent with past
practice.
6.2 Organization. Seller shall use its best efforts to preserve the Assets
intact and to preserve for Buyer its relationship with licensors, consultants,
suppliers, and others having regular business relations with it.
6.3 Prohibited Actions. In no event, without the prior written consent of
Buyer, shall Seller:
a. Liens. Permit any of the Assets to be subjected to any mortgage,
pledge, lien, or encumbrance, except for Permitted Liens.
b. Disposition of Assets. Waive any claims or rights of substantial
value respecting the Assets, or sell, transfer, or otherwise dispose of any of
the Assets, except in the ordinary course of business and consistent with past
practice.
c. Increases in Compensation. Increase the compensation of officers,
employees, or consultants, except in the ordinary course of business.
6.4 Insurance; Property. Seller shall maintain the Insurance Policies in
effect and shall at all times continue to insure all property constituting the
Assets against all ordinary and insurable casualty risks.
6.5 No Default. Seller shall not perform any act or omit to perform any
act, or permit any act or omission, that will cause a breach or default of any
covenant, agreement, warranty, or representation in this Agreement.
Section 7
COVENANTS OF SELLER AND BUYER PRIOR TO CLOSING
7.1 Access. From the date of this Agreement to the Closing Date, Seller
shall (1) provide Buyer with such information as Buyer may from time to time
reasonably request with respect to the transactions contemplated by its
Agreement; (2) provide Buyer and its officers, counsel, and other authorized
representatives access during regular business hours and upon reasonable notice
to the books, records, and offices of Seller, as Buyer may from time to time
reasonably request; and (3) permit Buyer to make such inspections thereof as
Buyer may reasonably request. Any investigation shall be conducted in such a
manner as not to interfere unreasonably with the operation of the business of
Seller.
7.2 Updating of Information. From the date of this Agreement to the
Closing Date, Seller shall deliver revised or supplementary schedules to this
Agreement, containing accurate information as of the Closing Date, in order to
enable Buyer to confirm the accuracy of Seller's representations and warranties
and otherwise to give full effect to the provisions of this Agreement. Such
revised or supplementary schedules shall not modify or be deemed part of this
Agreement unless agreed by Buyer in writing with reference to the specific
schedules to be so treated. Provided that the Schedules prepared as of the
Determination Date are true and correct when submitted for inclusion, the
foregoing obligation to furnish updated information shall apply to such
Schedules only insofar as material events or changes occur such as to make the
contents of such schedules unreliable or misleading.
7.3 Third-Party Certificates. Seller shall use its best efforts to procure
for the benefit of Buyer consent, assignment, and/or estoppel certificates in
such form, from such third parties, and with respect to such Assets to be
assigned to Buyer at Closing as Buyer may specify on or before Closing.
Section 8
CONDITIONS TO SELLER'S OBLIGATIONS
Each of the obligations of Seller to be performed hereunder shall be
subject to the satisfaction (or waiver by Seller) at or prior to the Closing
Date of each of the following conditions:
8.1 Representations and Warranties True at Closing Date. Buyer's
representations and warranties contained in this Agreement shall be true on and
as of the Closing Date with the same force and effect as though made on and as
of such date and Buyer shall have complied with the covenants and agreements set
forth herein to be performed by it on or before the Closing Date.
8.2 Litigation. No Litigation shall be threatened or pending against Buyer
or Seller before any court or governmental agency that, in the reasonable
opinion of counsel for Seller, could result in the restraint or prohibition of
any such party, or the obtaining of damages or other relief from such party, in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
8.3 Documents Satisfactory in Form and Substance. All agreements,
certificates, and other documents delivered by Buyer to Seller hereunder shall
be in form and substance satisfactory to counsel for Seller, in the exercise of
such counsel's reasonable judgment.
Section 9
CONDITIONS TO BUYER'S OBLIGATIONS
Each of the obligations of Buyer to be performed hereunder shall be subject
to the satisfaction (or the waiver by Buyer) at or prior to the Closing Date of
each of the following conditions:
9.1 Representations and Warranties True at Closing Date. Seller's
representations and warranties contained in this Agreement shall be true on and
as of the Closing Date with the same force and effect as though made on and as
of such date and Seller shall have complied with the covenants and agreements
set forth herein to be performed by it on or before the Closing Date.
9.2 Performance. Seller shall have performed and complied with all
agreements, obligations, and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing.
9.3 Investigations. Neither any investigation of Seller by Buyer, nor the
Schedules hereto, nor any other document delivered to Buyer as contemplated by
this Agreement, shall have revealed any facts or circumstances that, in the good
faith judgment of Buyer, reflect in a material adverse way on the Assets or the
Assumed Liabilities.
9.4 Consents. All Required Government Consents and Required Contract
Consents, to the extent required, shall have been obtained.
9.5 No Litigation. No Litigation shall be threatened or pending against
Buyer or Seller before any court or governmental agency that, in the reasonable
opinion of counsel for Seller, could result in the restraint or prohibition of
any such party, or the obtaining of damages or other relief from such party, in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
9.6 No Material Adverse Change. From the date of this Agreement until the
Closing Date, Seller shall not have suffered any material adverse change
(whether or not such change is referred to or described in any supplement to the
Schedules) to the Assets or the Assumed Liabilities.
Section 10
CLOSING
10.1 Closing. Unless this Agreement is first terminated as provided in
Article XV, the closing of the purchase and sale of the Assets and the transfer
and assumption of the Assumed Liabilities (the "Closing") shall take place at
the offices of Seller at 9.00 o'clock (1) on the first date on or after
November _____, 1999, that falls one (1) business day after all conditions to
Closing have been satisfied or duly waived, or (2) on such other time, date, and
place as the parties may agree in writing (the "Closing Date").
10.2 Actions at Closing. At Closing, Buyer and Seller shall take the
following actions, in addition to such other actions as may otherwise be
required under this Agreement:
a. Conveyance Instruments. Seller shall deliver to Buyer such
warranty deeds, bills of sale, assignments, and other instruments of conveyance
and transfer as Buyer may reasonably request to effect the assignment to Buyer
of the Assets.
b. Payment. Buyer shall transfer the amount of $185,772 to the
Seller's bank account as detailed in Section 3.2(b) and shall deliver to
Seller an assumption agreement pursuant to which Buyer assumes and agrees to pay
and perform the Assumed Liabilities.
c. Board and Shareholder Resolutions. Each party shall furnish to
the other certified copies of appropriate resolutions of the board of directors
and shareholders (if required) of each party required to implement the
transactions contemplated by this Agreement.
d. Transfer of Plans. The Seller shall transfer the Plans maintained
by the Seller for the benefit of its employees to the Buyer and shall all such
things as may be necessary to procure such transfer.
10.3 Further Assurances. At and after the Closing, without further
consideration, Seller shall take all such other action and shall procure or
execute, acknowledge, and deliver all such further certificates, conveyance
instruments, consents, and other documents as Buyer or its counsel may
reasonably request (1) to vest in Buyer, and perfect and protect Buyer's right,
title, and interest in, and enjoyment of, the Assets or (2) to ensure more
effectively the compliance of Seller with its agreements, covenants, warranties,
and representatives under this Agreement.
Section 11
COVENANTS OF SELLER AND BUYER FOLLOWING CLOSING
11.1 Tax Matters.
a. Seller's Right and Responsibility for Preclosing Tax Matters.
Seller shall have the right and responsibility to direct the handling of all tax
matters affecting or relating to the conduct of the Projects prior to the
Closing Date, including the prosecution of all administrative and judicial
remedies, the settlement of all issues, and the execution of agreements,
consents, or waivers, extending the statute of limitations.
b. Buyer's Cooperation. Buyer shall provide Seller such assistance
as it may reasonably request in connection with matters relating to taxes,
including information with respect to Seller's preparation of any returns of
taxes, any audit or other examination by any taxing authority, any judicial or
administrative proceeding relating to Seller's liability for taxes, or any
claims arising hereunder respecting the Projects. Buyer shall retain and provide
Seller with records or information which may be relevant to any such return,
audit, examination, proceeding, or determination, and Buyer shall retain all
such books and records for so long as necessary in keeping with applicable
statutes of limitations.
11.2 Transfer Taxes. All sales, transfer, and similar taxes and fees
(including all recording fees, if any) incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by Buyer and
Buyer shall file all necessary documentation with respect to such taxes.
11.3 No-Compete. For a period of five (5) years after the Closing Date,
Seller shall not engage in the business of acquiring, developing, marketing,
distributing, licensing, any project similar to, competitive with, or
substitutable for, the Projects, anywhere in the world, except as a customer or
authorized distributor of Buyer or otherwise with Buyer's consent (which may be
withheld in Buyer's sole discretion). Seller acknowledges and agrees that the
current market for the Projects extends throughout the entire world and it is
therefore reasonable to prohibit Seller from competing with Buyer anywhere in
such territory. Seller shall not engage in any such activity, directly or
indirectly, on its own behalf or in the service of or on behalf of others.
Section 12
CONFIDENTIALITY
12.1 Confidentiality Obligation of Buyer Prior to Closing. Until Closing
(and, if this Agreement is terminated for any reason, forever thereafter), Buyer
shall, and shall use its best efforts to cause its personnel and agents to, hold
in strict confidence, not disclose to any person without the prior written
consent of Seller, and not use in any manner except in connection with the
transactions contemplated hereby, any confidential business or technical
information obtained from Seller in connection with the transactions
contemplated hereby concerning the Projects or the Assets. This obligation shall
cease to apply to Buyer upon the occurrence of Closing. In the event that this
Agreement terminates for any reason, Buyer shall return to Seller or destroy all
materials in its possession containing any such confidential information,
including all copies, extracts, adaptations, and transcriptions thereof.
12.2 Confidentiality Obligation of Seller Following Closing. Following the
occurrence of Closing, Seller shall, and shall use its best efforts to cause its
personnel and agents to, hold in strict confidence, not disclose to any person
without the prior written consent of Buyer, and not use in any manner
whatsoever, any confidential business or technical information remaining in its
possession concerning the Projects or the Assets. Promptly following Closing,
Seller shall surrender to Buyer or destroy all materials remaining in its
possession containing any such confidential information, including all copies,
extracts, adaptations, and transcriptions thereof.
12.3 Permitted Disclosures. Notwithstanding Sections 12.1 and 12.2, either
party may disclose confidential information (1) where necessary to any
regulatory authorities or governmental agencies pursuant to legal process or (2)
if required by court order or decree.
12.4 Scope of Confidential Information. For purposes of this Agreement,
information shall not be deemed confidential (1) if such information is
available in full from public sources; (2) if such information is received from
a third party not under an obligation to keep such information confidential; or
(3) if the recipient can conclusively demonstrate that such information was
independently developed by the recipient.
Section 13
TERMINATION PRIOR TO CLOSING
13.1 Termination of Agreement. This Agreement may be terminated at any time
prior to the Closing by:
a. Mutual Consent. By the mutual consent of Buyer and Seller;
b. Deadline. By Buyer or Seller, in writing, without liability, if
the Closing shall not have occurred on or before November 30, 1999; or
c. Material Breach. By Buyer or Seller in writing, without
liability, if the other party shall (1) fail to perform in any material respect
its agreements contained herein required to be performed by in on or prior to
the Closing Date or (2) materially breach any of its representations,
warranties, agreements, or covenants contained herein, provided that such
failure or breach is not cured within ten (10) days after such party has been
notified of the other party's intent to terminate this Agreement pursuant
hereto.
13.2 Termination of Obligations. Termination of this Agreement pursuant to
this Article XIII shall terminate all obligations of the parties hereunder,
except for the obligations set forth in Article XII.
Section 14
ARBITRATION
14.1 Appointment of Arbitrator. The parties shall endeavour in good faith
to resolve amicably any dispute concerning this Agreement. In the event that any
such dispute is not amicably resolved, it shall be resolved by binding
arbitration before a single arbitrator. In the absence of agreement by the
parties hereto to the appointment of the arbitrator, either party hereto may
apply to the Chairman of the Jerusalem Bar Association with a request to make
such appointment. The appointment made by the said Chairman shall be binding on
the parties hereto. The arbitrator shall be bound by substantive applicable law
and shall state in writing the reasons for his award/decision. In connection
with any arbitration hereunder, the attorneys (or attorneys in any law firms
with which those attorneys are associated) who have represented the parties in
connection with the negotiation and/or drafting of this Agreement shall be
precluded from serving as an arbitrator, even if designated by the parties; and
shall not be precluded from (a) submitting expert or other testimony; or (b)
representing any of those same parties in the arbitration or any related
proceedings.
14.2 Language and Location of Arbitration. Any arbitration hereunder shall
be conducted in English, and the arbitrator shall sit in Jerusalem unless
otherwise agreed by the parties. Nothing in the preceding sentence shall
preclude the taking of evidence in a place other than Jerusalem (or such other
place as
is agreed) if the arbitration panel deems that appropriate.
14.3 Cooperation. In the event that any party to this Agreement is not a
formal participant in an arbitration proceeding hereunder, such party shall
cooperate with any reasonable request, from the arbitrator or from any
participant in such arbitration proceeding, for the producing of evidence. The
arbitrator will be entitled to request the submission of expert testimony.
14.4 Recourse to Court. Nothing in Article XIV shall preclude any party
from making an appropriate application to a court of competent jurisdiction for
injunctive or other equitable relief ancillary to the arbitration proceeding.
14.5 Confidentiality of Arbitration. Unless the participants in an
arbitration proceeding hereunder and the party producing evidence otherwise
agree in writing, the arbitrator and the participants in an arbitration
proceeding hereunder shall take all reasonable steps to ensure the
confidentiality of all evidence produced in connection with any such arbitration
proceeding. As used in this clause, "evidence" includes documents and testimony
(whether written or oral), and "producing evidence" includes giving, providing,
or otherwise furnishing evidence.
Section 15
MISCELLANEOUS
15.1 Entire Agreement. This Agreement (including the Schedules), and the
other certificates, agreements, and other instruments to be executed and
delivered by the parties in connection with the transactions contemplated
hereby; constitute the sole understanding of the parties with respect to the
subject matter hereof. No amendment, modification, or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto.
15.2 Parties Bound by Agreement; Successors and Assigns. The terms,
conditions, and obligations of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and the respective successors and assigns
thereof. Without the prior written consent of the other party, Buyer may assign
its rights, duties, or obligations hereunder or any part thereof to any other
person or entity, which shall thereupon become Buyer, provided that at the time
of such assignment Buyer unconditionally and irrevocably guarantees the payment
and performance of any duties or obligations so assigned.
15.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
15.4 Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
15.5 Modification and Waiver. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party that is entitled to
the benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provision hereof (whether
or not similar).
15.6 Expenses. Seller and Buyer shall each pay all costs and expenses
incurred by it or on its behalf in connection with this Agreement and the
transactions contemplated hereby, including fees and expenses of its own
financial consultants, accounts, and counsel.
15.7 Notices. Any notice, request, instruction, or other document to be
given hereunder by any party hereto to any other party hereto shall be in
writing and delivered personally or sent by registered or certified mail,
postage prepaid, if to Seller to:
Partec, Ltd.
000 Xxxxx Xxxx
Xxxxxxxxx 00000 Israel
Attention: Xxxxxx Xxxxxx
if to Buyer to:
B. R. T. Biopharmaceuticals, Ltd.
000 Xxxxx Xxxx
Xxxxxxxxx 00000 Israel
Attention: General Counsel
or at such other address for a party as shall be specified by like notice. Any
notice that is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party (or its agent for notices hereunder). Any notice that is
addressed and mailed in the manner herein provided shall be conclusively
presumed to have been duly given to the party to which it is addressed at the
close of business, local time of the recipient, on the fourth business day after
the day it is so placed in the mail.
15.8 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Israel without giving effect to the
principles of conflicts of law thereof.
15.9 Public Announcements. Seller and Buyer shall consult with each other
before issuing any press releases or otherwise making any public statements with
respect to this Agreement and the transactions contemplated hereby. Neither
Seller nor Buyer shall issue any such press release or make any public statement
without the agreement of the other party, except as such party's counsel advises
in writing may be required by law.
15.10 Third-Party Beneficiaries. With the exception of (1) the parties to
this Agreement and (2) the Buyer Group and the Seller Group with respect to the
matters inuring to their benefit under Article XIII, there shall exist no right
of any person to claim a beneficial interest in this Agreement or any rights
occurring by virtue of this Agreement.
15.11 "Including." Words of inclusion shall not be construed as terms of
limitation herein, so that references to "included" matters shall be regarded as
nonexclusive, noncharacterizing illustrations.
15.12 References. Whenever reference is made in this Agreement to any
Article, Section, or Schedule, such reference shall be deemed to apply to the
specified Article or Section of this Agreement or the specified Schedule to this
Agreement.
15.13 Survival of Agreements. All Covenants, agreements, representations,
and warranties made herein shall survive the execution and delivery of this
Agreement and the Closing.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf on the date indicated.
B.R.T. Biopharmaceuticals, Ltd.
/s/ Xxx Xxxxxxxxxxxx
---------------------------
By: Xxx Xxxxxxxxxxxx
Title: Director
Partec Ltd.
/s/ Xxxxxx Xxxxxx
----------------------------
By: Xxxxxx Xxxxxx
Title: CEO
The schedules and exhibits to this agreement have not been included because they
have been otherwise disclosed or because they are not material to an investment
decision. Such schedules and exhibits will be furnished to the Commission
supplementally upon request.
