EXECUTION VERSION
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") among Circe Biomedical,
Inc., a Delaware corporation (the "Seller"), Xxxxxx Technologies, Inc., a
Delaware corporation (the "Buyer") and Xxxxxx Systems, Inc., a Nevada
corporation (the "Parent"), is entered into as of April 7, 2004 (the "Effective
Date"). The Seller, the Buyer and the Parent together may be referred to herein
as the "Parties" and each of them may be referred to herein as a "Party."
RECITALS
WHEREAS, the Seller wishes to sell certain of its assets described herein
to Buyer and Buyer wishes to purchase such assets from the Seller;
NOW THEREFORE, in consideration of the foregoing and of the following
covenants, the sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. Sale of Assets
1.1. Purchase and Sale of Assets. The Seller hereby agrees to sell,
transfer and deliver to Buyer at Closing (as defined below), and the Buyer
agrees to purchase and pay for, all of Seller's right, title and interest,
subject to the Third Party Rights (as defined below), in and to the (a)
Investigational New Drug Application number 5654 for HepatAssist; (b)
Investigational New Drug Application number 6215 for PancreAssist; (c)
orphan drug and fast track designations relating to the HepatAssist
program; (d) the patents, patent applications and inventions described by
the unfiled potential patent claims listed on Schedule 1.1(a) hereto (the
"Patents Rights"); (e) all rights, claims, credits, judgments, choses in
action, rights of set-off or rights for past, present or future
infringement against third parties relating to the Patents Rights; (f) the
agreements listed on Schedule 1.1(b) hereto (the "Assumed Contracts"); (g)
Seller's standard operating procedures generic to cell system technology
other than those relating to block co-polymer technology (the "SOPs"); (h)
the prototype devices and representative custom or modified equipment
listed in Schedule 1.1(c) hereto; and (i) all records, data, results,
patient files, historical samples, and clinical trial protocols relating
to the foregoing, including without limitation those items listed in
Schedule 1.1(d).
All of the foregoing are referred to herein as the "Acquired Assets."
1.2. Consideration. The Buyer shall pay the Seller a total of $450,000 for
the Acquired Assets. The foregoing purchase price shall be paid as
follows: The Buyer (a) shall pay to the Seller on the Effective Date by
wire transfer of immediately available funds in accordance with the wire
instructions set forth in Schedule 1.2 hereto (the "Wire Instructions")
the sum of Fifty Thousand Dollars ($50,000) (the "Up-Front Cash Purchase
Price"); (b) shall pay to the Seller on the Closing Date (as defined
below) the sum of One Hundred Fifty Thousand Dollars ($150,000) (the
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"Closing Cash Purchase Price") and shall assume on and after the Closing
Date the Assumed Liabilities (as defined below); and (c) on the Deferred
Payment Date, shall pay to the Seller the sum of Two Hundred Fifty
Thousand Dollars ($250,000) (the "Deferred Cash Purchase Price" and, once
paid, together with the Closing Cash Purchase Price and the Up-Front Cash
Purchase Price, the "Purchase Price"). The "Deferred Payment Date" is the
earlier to occur of (i) the date on which the Parent and any Controlled
Subsidiary have consummated one or more debt or equity financings in which
the gross proceeds received by such entities since the date of this
Agreement in the aggregate equal or exceed Four Million Dollars
($4,000,000), or (ii) the second anniversary of the Effective Date. For
purposes of the preceding sentence, a "Controlled Subsidiary" shall mean
any entity of which the Parent directly or indirectly owns more than 50%
of the voting securities. Some or all of the Purchase Price may, at the
Seller's direction, be paid by the Buyer directly to the Stockholders (as
defined below) as the Seller may designate in writing prior to the payment
date. The Up-Front Cash Purchase Price shall be non-refundable, even if
the Closing (as defined below) does not occur for any reason.
1.3. Assumption of Liabilities. On and after the Closing, the Buyer shall
assume and discharge when due all of the following liabilities:
(a) All liabilities and obligations arising on or after the Closing
Date under the Assumed Contracts; and
(b) All liabilities and obligations arising on or after the Closing
Date relating to the Acquired Assets, including without limitation
all liabilities and obligations for the operation, prosecution,
maintenance, upkeep, renewal, retention, shipment, transfer,
delivery, storage or disposal of the Acquired Assets.
Notwithstanding anything herein to the contrary, the decision
whether to maintain the Acquired Assets after the Closing Date will
be in the sole discretion of the Buyer, and nothing herein shall
require the Seller to use, maintain or defend any of the Acquired
Assets.
All of the foregoing are referred to as the "Assumed Liabilities." Other
than the Assumed Liabilities, the Buyer will not assume or have any
responsibility with respect to any other obligation or liability of the
Seller, including any liability arising from the acquisition by the Seller
of the Acquired Assets or the Seller's operations before or after the
Closing.
1.4. Closing. On the Effective Date, the Seller shall provide to the Buyer
copies of the Seller's SOPs, clinical data and other documentation
relating to the Acquired Assets as set forth on Exhibit 1.4 (the
"Diligence Material") to permit the Buyer to conduct its due diligence
review with respect thereto. The closing (the "Closing") shall occur at a
place mutually acceptable to the Buyer and the Seller on April 19, 2004,
or such other date that is mutually acceptable to the Seller and the Buyer
(the "Closing Date"). Notwithstanding the prior sentence, in the event
that the Seller fails to provide any material portion of the Diligence
Material to the Buyer on the Effective Date, the Closing Date shall be
extended by the number of days that elapse between the Effective Date and
the date on which the Seller provides such material to the Buyer.
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1.5. Seller's Deliveries at Closing. On the Closing Date the Seller shall
execute and deliver or cause to be executed and delivered to the Buyer (a)
the Xxxx of Sale in the form set forth in Exhibit 1.5(a) hereto, (b) an
Assignment and Assumption Agreement in the form set forth in Exhibit
1.5(b) hereto, and (c) an Assignment of Patents in the form set forth in
Exhibit 1.5(c) hereto, and such other instruments of conveyance and
assignment as the parties and their respective counsel shall deem
reasonably necessary to vest in Buyer the right, title and interest in and
to the Acquired Assets set forth herein. In addition to the foregoing
conveyance documents, the Seller has previously delivered to the Buyer on
the Effective Date the ICN Amendment (as defined in Section 3.1.4). (The
Xxxx of Sale, the Assignment and Assumption Agreement, the Assignment of
Patents, and the ICN Amendment as executed and delivered by the Seller are
herein collectively referred to as the "Seller Transaction Documents.")
All tangible assets included in the Acquired Assets shall be delivered by
Seller, and title and risk of loss shall pass, to Buyer on the Closing
Date where such assets are then located. The Seller will identify to the
Buyer any location at which tangible Acquired Assets are located on the
Closing Date and the Seller shall provide Buyer with reasonable assistance
in arranging for the shipment of tangible Acquired Assets to one or more
locations specified by the Buyer.
1.6. Buyer's Deliveries at Closing. On the Closing Date, (a) the Buyer
shall pay to the Seller the Closing Cash Purchase Price by wire transfer
of immediately available funds in accordance with the Wire Instructions or
such other, later Wire Instructions of which the Seller may notify the
Buyer as provided for herein and (b) the Buyer shall execute and deliver
or cause to be executed and delivered to the Seller (i) the Xxxx of Sale
in the form set forth in Exhibit 1.5(a) hereto, (ii) an Assignment and
Assumption Agreement in the form set forth in Exhibit 1.5(b), and (iii) an
Assignment of Patents in the form set forth in Exhibit 1.5(c) hereto (The
Xxxx of Sale, the Assignment of Patents and the Assignment and Assumption
Agreement as executed and delivered by the Buyer are herein collectively
referred to as the "Buyer Transaction Documents.")
1.7. Obligations on the Deferred Payment Date. On the Deferred Payment
Date, the Buyer shall pay the Deferred Cash Purchase Price by wire
transfer of immediately available funds in accordance with the Wire
Instructions or such other, later wire instructions of which Seller may
notify Buyer as provided for herein. The obligation of the Buyer to pay
the Deferred Cash Purchase Price shall survive until such obligations are
satisfied.
2. Representations and Warranties.
2.1. Representation and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer as follows:
2.1.1. Organization and Authorization. (i) The Seller is duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization, with all requisite corporate power
and authority to enter into this Agreement and the transaction
contemplated hereby, (ii) the execution, delivery and performance of
this Agreement and each of the Seller Transaction Documents has been
authorized by all necessary corporate action of the Seller, and
(iii) this Agreement and each of the Seller Transaction Documents is
a valid, binding obligation of the Seller, enforceable in accordance
with its terms except as may be limited by applicable federal or
state bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights generally.
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2.1.2. Ownership of Assets. The Seller owns the Acquired Assets,
free and clear of any and all mortgages, liens, pledges and security
interests, subject to the rights of third parties specified in
Schedule 2.1.2 hereto (the "Third Party Rights"). All security
interests in the Acquired Assets shall, as of the Closing Date, have
been released and discharged.
2.1.3. Brokers and Finders. The Seller has not, on its own behalf or
on behalf of the Buyer, employed any broker or finder or incurred
any liability for brokerage fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement.
2.1.4. Noncontravention. Neither the execution and delivery of this
Agreement and the Seller Transaction Documents, nor the consummation
of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule to which Seller is subject
or, to the knowledge of the Seller, any injunction, judgment, order,
decree, ruling, charge or other restriction of any government,
governmental agency, or court to which Seller is subject, or any
provision of the Seller's certificate of incorporation or By-laws,
or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right
to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other
arrangement to which Seller is a party or by which it is bound or to
which any of the Acquired Assets is subject (or result in the
imposition of any security interest upon any of the Acquired
Assets), in each case except as set forth in Schedule 2.1.4 hereto.
2.1.5. Legal Compliance. The Seller has complied in all material
respects with all laws (including rules, regulations and codes) and,
to the Seller's knowledge, with all plans, injunctions, judgments,
orders, decrees, rulings and charges thereunder in each case
applicable to the Acquired Assets or to the Seller's business to the
extent involving the Acquired Assets, and, except as set forth on
Schedule 2.1.5 hereto, to the Seller's knowledge, no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand
or notice has been threatened, filed or commenced against the Seller
relating to or involving the Acquired Assets.
2.1.6. ICN Amendment. The ICN Amendment, as of the date thereof, is
a valid and binding agreement, enforceable against the Seller and,
to the Seller's knowledge, all other parties thereto in accordance
with its terms and subject to the conditions thereof (assuming the
truth and accuracy of all representations and warranties made
therein other than those made by the Seller). Other than as set
forth in the ICN Amendment and this Agreement, the Buyer shall not
acquire from the Seller any obligations or liabilities to ICN
Pharmaceuticals, Inc., the Seller, or any of the Stockholders (as
defined below) regarding any agreement, instrument or transaction
entered into by such parties, including without limitation the
Assignment Agreement, dated as of November 15, 2002, that certain
Merger Agreement, dated March 11, 2002, the Stock Purchase
Agreement, dated November 15, 2002, or the Release Agreement, dated
November 15, 2002.
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2.1.7. No Litigation. Except as set forth on Schedule 2.1.7, to the
Seller's knowledge, no action or proceeding before a court or any
other governmental agency or body is pending or threatened that
could be reasonably likely to materially and adversely affect the
Acquired Assets or the use of the Acquired Assets in a manner
consistent with the Seller's use thereof prior to the Closing.
2.1.8. Patent Assets. The Seller has not received any written or
oral notice or claim of infringement with respect to any of the
Patent Assets and, to the Seller's knowledge, the Patent Assets do
not infringe on the patent rights of a third party.
2.2. Representations and Warranties of Buyer. The Buyer hereby represents
and warrants to the Seller as follows:
2.2.1. Organization and Authorization. (i) The Buyer is duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization, with all requisite corporate power
and authority to enter into this Agreement and the transaction
contemplated hereby; (ii) the execution, delivery and performance of
this Agreement and each of the Buyer Transaction Documents has been
authorized by all necessary corporate action of Buyer; and (iii)
this Agreement and each of the Buyer Transaction Documents is a
valid, binding obligation of Buyer, enforceable in accordance with
its terms except as may be limited by applicable federal or state
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally.
2.2.2. Brokers and Finders. The Buyer has not, on its own behalf or
on behalf of the Seller, employed any broker or finder or incurred
any liability for brokerage fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement.
2.2.3. Noncontravention. Neither the execution and delivery of this
Agreement and the Buyer Transaction Documents, nor the consummation
of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule to which Buyer is subject
or, to the knowledge of the Buyer, any injunction, judgment, order,
decree, ruling, charge or other restriction of any government,
governmental agency, or court to which Buyer is subject, or any
provision of the Buyer's certificate of incorporation or By-laws, or
(ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right
to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other
arrangement to which Buyer is a party or by which it is bound or to
which any of the Acquired Assets is subject (or result in the
imposition of any security interest upon any of the Acquired
Assets).
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2.2.4. Legal Compliance. The Buyer has complied in all material
respects with all laws (including rules, regulations and codes) and,
to the Buyer's knowledge, with all injunctions, judgments, orders,
decrees and rulings thereunder in each case applicable to the
Acquired Assets or to the Buyer's business to the extent involving
the Acquired Assets, and, to the Buyer's knowledge no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand
or notice has been threatened, filed or commenced against the Buyer
relating to or involving the Acquired Assets, and Buyer is not aware
of any factual basis for any assertion against it of any action,
suit, proceeding, hearing, investigation, charge, complaint, claim,
demand or notice relating to or involving the Acquired Assets.
2.3. Representations and Warranties of Parent.
2.3.1. Organization and Authorization. (i) The Parent is duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization, with all requisite corporate power
and authority to enter into this Agreement and the transaction
contemplated hereby; (ii) the execution, delivery and performance of
this Agreement has been authorized by all necessary corporate action
of he Parent; and (iii) this Agreement is a valid, binding
obligation of the Parent, enforceable in accordance with its terms
except as may be limited by applicable federal or state bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally.
2.3.2. Noncontravention. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule
to which the Parent is subject or, to the knowledge of the Parent,
any injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency, or court to
which Buyer is subject, or any provision of the Parent's certificate
of incorporation or By-laws, or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Parent
is a party or by which it is bound or to which any of the Acquired
Assets is subject (or result in the imposition of any security
interest upon any of the Acquired Assets).
2.4. Disclaimer. Except as expressly set forth in Section 2.1, the Patent
Assets are being sold "as is and where is" and the Seller makes no, and
hereby disclaims any, representation or warranty to the Buyer with respect
to the Patent Assets or the transactions contemplated hereby, including
without limitation any warranty of merchantability, current status,
fitness for a particular purpose or non-infringement.
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3. Conditions to Closing
3.1. Seller's Closing Condition. The Seller's obligation to consummate the
transactions contemplated hereby is subject to the satisfaction of the
following conditions as of the Closing Date:
3.1.1. No Litigation. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or
threatened to stay, restrain or prohibit the consummation of the
transactions contemplated hereby or to impose any remedy, condition
or restriction unacceptable to the Seller in its sole discretion.
3.1.2. Representations and Warranties; Performance of Obligations.
All representations and warranties of the Buyer contained in this
Agreement shall be true and correct in all material respects as of
the Closing with the same force and effect as though made at and as
of the Closing and all of the terms, covenants and conditions of
this Agreement to be complied with, performed and satisfied by the
Buyer at or before the Closing shall have been complied with,
performed and satisfied in all material respects.
3.1.3. Proceedings Satisfactory. All actions, proceedings,
instruments and documents required to carry out this Agreement or
incidental hereto shall be reasonably satisfactory to the Seller and
its counsel.
3.1.4. ICN Assignment Agreement. Amendment No. 1 (in the form set
forth in Exhibit 3.1.4 to that certain "Assignment Agreement"
entered into as of November 15, 2002 among ICN Pharmaceuticals,
Inc., the Seller, the persons who have executed counterpart
signature pages thereof (individually and collectively, the
"Stockholders") and Xxxxxx X. Xxxxx and Xxxx Xxxxxx, each solely in
his capacity as representative of the Stockholders, shall have been
executed and delivered by all parties thereto. (The executed
Amendment No. 1 to the Assignment Agreement is herein referred to as
the "ICN Amendment.")
3.2. Buyer's Conditions Precedent. The Buyer's obligations hereunder are
conditioned upon the following:
3.2.1. No Litigation. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or
threatened to stay, restrain or prohibit the consummation of the
transactions contemplated hereby or to impose any remedy, condition
or restriction unacceptable to the Buyer in its sole discretion.
3.2.2. Representations and Warranties; Performance of Obligations.
All representations and warranties of the Seller contained in this
Agreement shall be true and correct in all material respects as of
the Closing Date with the same force and effect as though made at
and as of the Closing Date and all of the terms, covenants and
conditions of this Agreement to be complied with, performed and
satisfied by the Seller at or before the Closing Date shall have
been complied with, performed and satisfied in all material
respects.
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3.2.3. Proceedings Satisfactory. All actions, proceedings,
instruments and documents required to carry out this Agreement or
incidental hereto shall be reasonably satisfactory to the Buyer and
its counsel.
3.2.4. Due Diligence. The Buyer shall be reasonably satisfied with
its due diligence review of the SOPs, clinical data and other
documentation relating to the Acquired Assets as provided by the
Seller on the Effective Date; provided, however, that if the Buyer
fails to notify the Seller prior to April 18, 2004 that the Buyer is
not satisfied with such due diligence review, this condition shall
be deemed to be satisfied.
3.2.5. ICN Amendment. The Buyer shall have been provided a copy of
the executed ICN Amendment on or prior to the Effective Date.
4. Confidentiality.
4.1. Each party may disclose or may have disclosed (the "Disclosing
Party") to another party (the "Receiving Party") certain information that
the Disclosing Party considers to be confidential and/or proprietary,
including, but not limited to, personally identifiable information and
data entered, technical processes and formulas, product designs, customer
lists, product and business plans, revenues, projections, marketing and
other data, the terms and provisions of this Agreement, sales, cost,
accounting and other technical, business and financial information, as
well as information that the Disclosing Party marks as confidential
(collectively, "Confidential Information"). Notwithstanding the foregoing,
Confidential Information does not include information (i) already known by
the Receiving Party without an obligation of confidentiality, (ii)
publicly known or which becomes publicly known through no omission or
unauthorized act of the Receiving Party, (iii) rightfully received from a
third party without any obligation of confidentiality, or (iv)
independently developed by the Receiving Party without use of the
Disclosing Party's Confidential Information.
4.2. The Receiving Party shall make use of the Confidential Information
only for the purposes of this Agreement and shall protect the Disclosing
Party's Confidential Information by using the same degree of care, but not
less than a reasonable degree of care, to prevent the unauthorized access,
use, dissemination, or publication of the Confidential Information as the
Receiving Party uses to protect its own Confidential Information of a like
nature. The Receiving Party shall disclose Confidential Information only
(i) to those of its employees, contractors, representatives and
consultants with a need to know such Confidential Information who have
first agreed with the Receiving Party, either as a condition of employment
or engagement, or in order to obtain the Confidential Information, to be
bound by terms and conditions substantially similar to those contained in
this Section 4, (ii) as required by court order, law or regulation or as
requested by any regulatory agency or governmental body having
jurisdiction over the Receiving Party, provided that prior to such
disclosure the Receiving Party shall provide prompt written notice to the
Disclosing Party sufficient to permit the Disclosing Party the opportunity
to oppose the disclosure and the Receiving Party shall take all reasonable
steps available to maintain the Confidential Information in confidence, or
(iii) to make appropriate disclosure regarding the tax treatment and tax
structure of the transactions contemplated hereby.
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4.3. All Confidential Information shall remain the property of the
Disclosing Party, and such Confidential Information and all copies thereof
(if any), shall be promptly returned to the Disclosing Party upon request
or upon termination of this Agreement or, at the Disclosing Party's sole
option, destroyed, in which case the Disclosing Party shall be notified
promptly in writing when its Confidential Information has been destroyed.
The furnishing of any Confidential Information between the parties shall
not constitute the granting of any right or license to use such
Confidential Information.
4.4. The obligations of the parties set forth in this Section 4 shall
remain in effect for three years after the date of this Agreement.
4.5. Notwithstanding any other provision in this Section 4 to the
contrary, the Buyer shall be permitted after the Closing to use and
disclose any Confidential Information received from the Seller and
included in the Acquired Assets to the extent the Buyer in its sole
discretion determines that it is necessary or appropriate to use or
disclose that Confidential Information in order to carry out any of the
Buyer's commercial activities through the use of any of the Acquired
Assets. Each Party agrees that, subject to the other Party's compliance
with the terms of this Section 4, such Party shall not commence any action
against the other Party alleging misappropriation or illegal use of any
trade secrets, know-how or proprietary information of such Party based on
any activities of the other Party that occurred either (i) prior to the
Effective Date or (ii) between the Effective Date and the Closing Date.
The immediately preceding sentence of this Section 4.5 is intended to be a
complete release by each Party of the other Party of any claims relating
to any misappropriation or illegal use of any trade secrets, know-how or
proprietary information, whether such claims were known or unknown by the
releasing Party as of the Effective Date.
5. Failure to Pay the Deferred Cash Purchase Price. If the Buyer fails to pay to
the Seller the Deferred Cash Purchase Price on or prior to the second
anniversary of the Closing Date, then in addition to any other remedies
available to the Seller at law or in equity, the Seller shall have the right to
require the Buyer to reconvey the Acquired Assets to the Seller without the
refund or return by the Seller of any portion of the Deferred Cash Purchase
Price. Upon exercise of the foregoing right by the Seller, the Buyer shall
execute and deliver to the Seller such instruments of conveyance and assignment
and other documents, and shall take all other actions, as the Seller and its
counsel may deem reasonably necessary to vest in Seller the right, title and
interest in and to the Acquired Assets. The Buyer and the Seller agree that the
Seller would be damaged irreparably in the event that the provisions of this
Section 5 are not performed by the Buyer in accordance with its specific terms.
Accordingly, the Buyer and the Seller agree that, without posting bond or other
undertaking, the Seller will be entitled to an injunction or injunctions to
prevent breaches or violations of the provisions of this Section 5 and to
enforce specifically the terms of this Section 5 in any action instituted in any
court of the United States or any state hereof having jurisdiction over the
Parties and the matter in addition to any other remedy which it may be entitled,
at law or in equity. The Buyer further agrees that, in the event of any action
for specific performance in respect of such breach or violation, it will not
assert the defense that a remedy at law would be adequate.
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6. Notices. Any notice or communication required or permitted to be delivered to
any party under this Agreement shall be in writing and shall be deemed properly
delivered, given and received when delivered (by hand, by registered mail, by
courier or express delivery service or by fax) to the address or fax number set
forth beneath the name of such party below (or to such other address or fax
number as such party shall have specified in a written notice given to the other
parties hereto):
If to the Seller: Circe Biomedical, Inc.
c/o Xxxxxxxxx Xxxx
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
With a copy to: Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
If to Parent to: Xxxxxx Systems, Inc.
000 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx X-0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, MD, Phd
Fax: (000) 000-0000
With a copy to: Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
If to Buyer to: Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx X-0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, MD, Phd
Fax: (000) 000-0000
With a copy to: Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
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7. Access, Information, Documents, Consultation. From the Closing Date through
the date that the Buyer has paid in full the Deferred Cash Purchase Price, upon
reasonable advance notice, during normal business hours and in a manner so as
not to interfere with the business operations of the Parent and its Controlled
Subsidiaries, the Parent shall make available, and shall cause its Controlled
Subsidiaries to make available, to the Seller and its designees, at the offices
of the Parent, all financial books, accounts, records, agreements and other
documents of the Parent and its Controlled Subsidiaries which the Seller or such
designees may reasonably request and shall permit the Seller and its designees
to discuss the business, operations, assets, properties and financial condition
of the Parent and its Controlled Subsidiaries with any officer or independent
auditor of the Parent of its Controlled Subsidiaries, in each case only to the
extent reasonably necessary to permit the Seller and its designees to ascertain
whether Buyer has complied with its obligation to pay the Deferred Cash Purchase
Price. Notwithstanding anything to the contrary in this Section 7, the Parent
and its Controlled Subsidiaries shall not be obligated to provide material,
non-public information to the Seller or its designees unless, at such time, the
Seller and its designees agree not to execute trades in the public securities of
the Parent until such time as the Seller and its designees determine, in their
sole discretion, that such information in no longer material and/or non-public.
8. Termination Survival of Representations, Warranties and Covenants; Etc. This
Agreement shall terminate automatically if the Closing does not occur on or
before April 19, 2004 or such later Closing Date as the Buyer and the Seller may
mutually agree to. No termination of this Agreement shall relieve any Party from
liability for any breach of this Agreement committed prior to termination. All
representations and warranties contained in this Agreement shall survive for a
period of twelve (12) months following the date of the Closing. In no event
shall the liability of the Seller for breaches of representations, warranties
and covenants hereunder exceed an aggregate amount equal to 50% of the Purchase
Price actually received by the Seller (or the Stockholders at the Seller's
direction). Any claim for any breach or violation of any representation,
warranty or covenant herein or otherwise relating hereto (other than any claim
under Section 4 or any claim regarding the payment of the Deferred Cash Purchase
Price) must be made, if at all, on or prior to the date which is twelve (12)
months after the Closing Date or it shall be thereafter barred.
9. Miscellaneous.
9.1. Governing Law; Jurisdiction. This Agreement was executed in, and the
transactions contemplated by and the provisions of this Agreement shall be
governed by and construed in accordance with the laws of The Commonwealth
of Massachusetts without giving effect to the conflict of laws provisions
thereof; and both parties consent to the jurisdiction of the state and
federal courts sitting in Massachusetts.
9.2. Exclusivity. During the period from the Effective Date through the
tenth business day following the Effective Date, the Seller will not seek
or negotiate with any potential buyer of the Acquired Assets other than
the Buyer.
9.3. Expenses. Each party to this Agreement shall be responsible for its
own expenses incurred in connection with this Agreement and the
transactions contemplated hereby and Buyer shall be responsible for (a)
all filing and recordation fees relating to the transfer of the Acquired
Assets hereunder; and (b) all fees, costs and expenses relating to the
shipment, transfer or delivery of all tangible assets included in the
Acquired Assets from their respective locations on the Closing Date to
such location or locations as Buyer may determine.
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9.4. Entire Agreement; Third Party Beneficiaries; Assignment; Etc. This
Agreement, including all exhibits and schedules attached hereto,
constitutes and contains the entire agreement of the parties and
supersedes any and all prior negotiations, correspondence, understandings
and agreements between the parties respecting the subject matter hereof.
This Agreement is not intended to confer upon any person other than the
Parties to this Agreement any rights or remedies, provided, however, that
the Stockholders are intended third party beneficiaries of the penultimate
sentence of Section 1.2 and are entitled to enforce the provisions thereof
against the Buyer. Neither the Parent nor the Buyer may assign its rights
or obligations under this Agreement without the prior written consent of
the Seller (not to be unreasonably withheld) and the Seller may not assign
its rights or obligations under this Agreement without the prior consent
of the Buyer (not to be unreasonably withheld); provided, however, that
the Seller may assign, distribute or otherwise transfer its rights
relating to the Deferred Cash Purchase Price without the consent of the
Buyer; and provided, further that any person or entity that acquires the
Buyer or all or substantially all of the Acquired Assets after the Closing
Date must agree in writing to assume the obligation to pay the Deferred
Cash Purchase Price and to be bound by the provisions of Section 5 as if
such person or entity were substituted for the Buyer therein (but no such
assignment and assumption shall relieve the Buyer of such obligation
without the Seller's written consent). In addition, the Buyer shall be
permitted to assign and transfer the Acquired Assets to the Parent or to a
wholly-owned subsidiary of the Buyer, provided, however, that such
assignee shall agree with the Seller, in writing, to assume the
obligations of the Buyer hereunder on a joint and several basis and the
Buyer shall not thereby be relieved of its obligations hereunder.
9.5. No Liability of Officers and Directors. The parties hereto
acknowledge that the individuals executing this Agreement on behalf of the
Seller, the Buyer and the Parent do so on behalf of such entities and not
in their individual capacities. As such no officer, director, employee or
agent of the Seller, the Buyer or the Parent shall have any liability
hereunder.
9.6. Counterparts. This Agreement may be executed in two or more
counterparts and shall be effective when each party has executed at least
one of the counterparts even though all parties have not executed the same
counterpart.
9.7. Guaranty. The Parent hereby agrees to unconditionally guarantee the
obligations and liabilities of the Buyer under this Agreement. The Parent
hereby acknowledges and agrees that (a) the Buyer and the Seller may amend
or modify this Agreement without the requirement of providing notice of
such amendment or modification to the Parent or of obtaining the Parent's
consent thereto and (b) the Seller shall be entitled to interact and deal
with the Buyer on all matters relating to this Agreement (and any
modifications and amendments hereto) without regard to the guaranty made
by the Parent hereunder, and that in each such case, the obligations and
liabilities of the Parent under this guaranty shall not be released or
otherwise affected or impaired as a result thereof.
[the remainder of this page has been intentionally left blank]
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IN WITNESS WHEREOF, this Agreement has been executed under seal as of the date
first written above.
SELLER: CIRCE BIOMEDICAL, INC.
By:_/s/ Xxxxxxxxx Chen_____________________________
Name: Xxxxxxxxx Xxxx
Title: President and Chief Executive Officer
BUYER: XXXXXX SYSTEMS, INC.
By:_/s/ Xxxxx Rozga________________________________
Name: Xxxxx Xxxxx
Title: President
PARENT: XXXXXX TECHNOLOGIES, INC.
By:__/s/ Xxxxx Rozga_______________________________
Name: Xxxxx Xxxxx
Title: President
[Asset Purchase Agreement Signature Page]
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EXHIBITS AND SCHEDULES TO ASSET PURCHASE AGREEMENT
The following is a list of the exhibits and schedules that are attached to the
Asset Purchase Agreement, which will be furnished supplementally to the
Commission upon request.
Exhibit 1.4 - Diligence Material
Exhibit 1.5 (a) - Xxxx of Sale
Exhibit 1.5 (b) - Assignment and Assumption Agreement
Exhibit 1.5 (c) - Assignment of Patents
Exhibit 3.1.4 - ICN Assignment Agreement
Schedule 1.1 (a) - Patents, Patent Applications and Inventions Described in
Unfiled Potential Patent Claims
Schedule 1.1 (b) - Assumed Contract
Schedule 1.1 (c) - Certain Devices and Equipment
Schedule 1.1 (d) - Certain Records, Data, etc.
Schedule 1.2 - Wire Instructions
Schedule 2.1.2 - Third Party Rights
Schedule 2.1.4 - Non-Contravention
Schedule 2.1.5 - Legal Compliance
Schedule 2.1.7 - Certain Actions and Proceedings
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