EXHIBIT "D"
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (hereinafter referred to as the "Agreement")
is entered into as of ________________________, 1996 between Microtech Medical
Systems, Inc., ("MMSI"), also referred to as the "Seller," and Xxxxx X. Xxxxxxx
or a related affiliate, also referred to as the "Purchaser."
RECITALS
Whereas, the Board of Directors of MMSI intends to direct the Company into
new business ventures, in areas other than medical laboratory test products with
its inherent high level of regulation, competition, product liability risks, and
manufacturing complexity.
And Whereas, MMSI completed a secondary stock offering in January, 1988 in
order to seek to acquire or participate in business ventures which could result
in a substantial change in this Company's business and operations.
And Whereas, the laboratory test kit products have only a small niche
appeal to select microbiology laboratories, and has found only limited
acceptance of a narrow spectrum of products related to antibiotic susceptibility
testing of fastidious and anaerobic bacteria.
Therefore, the Board of MMSI, in an effort to redirect and concentrate its
efforts on acquisitions and related activities and thereby enhance the valuation
of the Company, is desirous of selling its operations which manufacture the test
products.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
1.1 Asset Purchase: Seller shall sell, assign, transfer and deliver to
Purchaser, and Purchaser shall purchase from Seller, by appropriate assignment
and xxxx of sale one hundred percent (100%) interest in the whole interest of
Seller's right, title and interest in and to any and all authorizations,
licenses, contracts and assets directly or indirectly related to its medical
laboratory products ("Operations"), including without limitation all licenses,
contracts, inventories, operating assets, personal property, real property, and
any other asset related to the operations, as of the commencement date of this
Agreement. Seller makes no representations or warranties concerning the
Purchased Assets, as defined herein.
1.2 Purchase Price: In exchange for the sale of the Purchased Assets
described in Section 1.1 above, and in consideration for all liabilities,
including accounts payable and leases, to be assumed by Purchaser relating to
the manufacturing operations, Purchaser shall agree to pay Seller the sum
certain of Two Hundred Fifty-One Thousand Dollars ($251,000), see 1.3. Purchaser
hereby represents, covenants and agrees that Seller shall not in any way be
liable for any contracts, obligations or liabilities of the operations of any
nature whatsoever (whether accrued, absolute or contingent, whether disclosed or
undisclosed, whether known or unknown, whether due or to become due, whether
related to the Purchased Assets and the associated manufacturing operations or
otherwise, and regardless of when asserted) not specifically provided for in
this Agreement, which unassumed liabilities shall be the sole responsibility of
Purchaser.
1.2.1 Assumption of Manufacturing Operations Responsibilities:
Purchaser hereby assumes and agrees to fully perform in timely manner
any and all of Seller's duties and obligations in the manufacturing
operations, referenced herein from and after the date of this
Agreement, as if it were the original purchaser therein.
1.3 Method of Purchase:
1.3.1 Down Payment: The non-refundable down payment shall be One
Thousand Dollars ($1,000), which amount shall be paid to Seller upon
the date this Agreement is executed by the parties hereto.
1.3.2 Balance of Purchase Price: The balance of the purchase
price shall be paid to Seller as follows:
(a) Payment: Two Hundred Fifty Thousand Dollars ($250,000) on or
before June 1, 2001. In the event that the $250,000 payment is not
made on the required date, the Purchaser shall, within ten (10)
business days of such default, provide Seller with a convertible
financing received by the Purchaser from one or more lenders.
(b) Promissory Note: At closing, Purchaser shall sign a
Promissory Note in the amount of Two Hundred Fifty Thousand Dollars
($250,000) due to Seller on or before June 1, 2001, to bear interest
at Colorado National Bank Prime Lending Rate on date of sale plus one
percent (1%) interest payable monthly and due on the fifth of each
month, with a final balloon payment of $250,000 to be made on the due
date.
(c) Collateral: Security for the note is to be:
1. The Three Million Share Option granted to Xx. Xxxxxxx by
the Board of Directors of MMSI in October, 1993, said option to
be pledged as security at closing and held by the Board. Upon
exercise of the option, the issued shares shall be pledged and
held by the Board, along with a signed proxy giving the Directors
the right to vote the shares at any shareholder meeting.
2. Southland Life Insurance policy on life of Xxxxx X.
Xxxxxxx.
3. Stock in Valley of Sun of approximately sixteen thousand
six hundred (16,600) shares.
4. Promissory note of Carolina Multicommunications
Corporation in the amount of Two Hundred Thirty-Five Thousand
Dollars ($235,000.00).
1.3.3 Closing: The closing of the sale of the Purchased Assets
shall be simultaneous with the signing by Purchaser of the Two Hundred
Fifty Thousand Dollar ($250,000) promissory note, as required by
Section 1.3.2(b) hereof, following shareholder approval.
ARTICLE II
2.1 Notices: All notes, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given and
effective (i) upon receipt if delivered in person, by cable or telegram, (ii)
one business day after depositing prepaid with a national overnight express
delivery service (e.g., Federal Express or Airborne) or (iii) three business
days after deposit in the United States Mail (registered or certified mail,
postage prepaid, return receipt requested):
If to Seller:
Microtech Medical Systems, Inc.
000 X. Xxxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
If the Purchaser:
Xxxxx X. Xxxxxxx
00000 X. Xxxxx Xxxxxx
Xxxxxx, XX
or such other address as specified by the parties in writing from time to
time.
2.2 Press Release: Unless otherwise required by law, none of the parties
hereto shall make any public announcement nor issue any press release regarding
the transactions set forth herein without the prior approval of the other
parties, which approval shall not be unreasonably withheld. Following the
closing, appropriate press releases and SEC filings may be prepared and issued
by the new Board of Directors. Purchaser hereby consents to Seller disclosing
the terms and/or a copy of this Agreement to shareholders and underwriters of
Seller.
2.3 Amendments: This Agreement may be amended or modified only by a written
instrument executed by the parties hereto.
2.4 Expenses: Except as otherwise expressly herein provided, each party to
this Agreement shall pay its own expenses (including, without limitation, the
fees and expense of its agents, representatives, counsel and accountants)
incidental to the negotiation, preparation, execution and performance of this
Agreement.
2.5 Counterparts: This Agreement may be executed in any number of
counterparts by FAX, with hard copy sent first class mail, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
2.6 Parties in Interest - Assignment: This Agreement shall inure to the
benefit of and be binding upon Purchaser, Seller and their respective successors
and assigns. Nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights or remedies under, or by reason of, this
Agreement. The rights and responsibilities of Seller and Purchaser hereunder may
be assigned to any party without the other party's prior written consent.
2.7 Applicable Law: The rights and obligations of the parties shall be
construed under and governed by the laws of the State of Colorado. Venue and
jurisdiction for judicial enforcement of this Agreement shall be Arapahoe
County, Colorado.
2.8 Waiver: No provision in this Agreement shall be deemed waived by course
of conduct, unless such waiver is in writing signed by all parties and stating
specifically that it was intended to modify this Agreement.
2.9 Captions - Interpretation: Section headings contained herein are
descriptive only, and shall have no legal effect. Each party has reviewed and
discussed this Agreement with counsel, and any question of construction shall
not be resolved by any rule of interpretation providing for interpretation
against the drafting party.
2.10 Severability: In the event that any term or provision of this
Agreement is determined to be or would be void, unenforceable, or contrary to
law, such term or provision is voided; however, the remainder of this Agreement
shall continue in full force and effect, provided that such continuation would
not diminish the benefits of this Agreement for any party.
2.11 Arbitration:
(a) Should a dispute arise under this Agreement which cannot be
resolved informally between the parties hereto, either Purchaser or Seller
may request that such dispute be submitted to arbitration for resolution.
Arbitration under this section shall take place at a location mutually
agreeable to Purchaser and Seller.
(b) Purchaser shall select one arbitrator, and Seller shall select
another arbitrator, within fifteen (15) days of a request for arbitration
hereunder, and the arbitrators so chosen shall select a third arbitrator
within fifteen (15) days of the later arbitrator's selection. Each such
arbitrator shall be an individual or firm unaffiliated with any of the
parties and with expertise in the manufacturing operations. If Purchaser or
Seller fails to designate a third arbitrator, then such arbitrator shall be
designated by the American Arbitration Association upon request of
Purchaser or Seller.
(c) The decision of a majority of the arbitrators shall be final,
conclusive and binding on the parties hereto and may be submitted to a
court of appropriate jurisdiction for enforcement thereof.
2.12 Attorney's Fees: If any action, suit or proceeding is commenced to
establish, maintain, or enforce any right or remedy under this Agreement, the
party not prevailing therein shall pay, in addition to any damages or other
award, all reasonable attorney's fees and litigation expenses incurred therein
by the prevailing party.
2.13 Entire Agreement: This Agreement constitutes the entire Agreement
between the parties governing the matters addressed herein. No prior agreement
or representation, whether oral or written, shall have any force or effect
thereon.
2.14 Commencement Date: The commencement date of this Agreement is
__________________________________________.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first-above written.
SELLER:
MICROTECH MEDICAL SYSTEMS, INC.
By:________________________________
PURCHASER:
_____________________________________
XXXXX X. XXXXXXX
AMENDMENT
TO
ASSET PURCHASE AGREEMENT DATED JUNE 27,1996
Section 1.3 of Article 1 of the Asset Purchase Agreement between
Microtech Medial Systems, Inc. ("MMSI"), now known as Eclipse
Corporation, also referred to as "Seller," and Xxxxx X. Xxxxxxx
or a related affiliate, also referred to as "Purchaser," is
hereby amended as follows:
Section 1.3 Method of Purchase:
1.3.1 Down Payment: The non-refundable down
payment shall be One Thousand Dollars ($1,000), which
amount shall be paid to Seller upon the date this
Agreement is executed by the parties hereto.
1.3.2 Balance of Purchase Price: The balance of the purchase
price is to be paid as follows:
(a) Payment: Two Hundred Fifty-Thousand Dollars ($250,000)
on or before June 1, 2001. In the event that the
$250,000 payment is not made on the required date, the
Purchaser shall, within ten (10) business days of such
default, provide Seller with a convertible financing
received by the Purchaser from one or more lenders.
1 . Fifty Thousand Dollars ($50,000) in insurance
premiums described in the MMSI Settlement
Agreement (paragraph 2h) shall be applied to the
purchase price as of the commencement date of the
Agreement.
2. Two Hundred Thousand Dollars ($200,000) Promissory
Note set forth hereinbelow.
(b) Promisso[y Note: At closing, Purchaser shall sign a
Promissory Note in the amount of Two Hundred Thousand
Dollars ($200,000) due to Seller on or before June 1,
2001, to bear interest at Colorado National Bank prime
Lending Rate on date of sale, plus one percent (1%),
interest payable monthly and due on the fifth of each
month, with a final balloon payment of $200,000 to be
made on the due date.
(c) Collateral: Security for the note is to be:
1 . The Three Million Share Option granted to Xx.
Xxxxxxx by the Board of Directors of MMSI in
October, 1993, said option to be pledged as
security at closing and held by the Board. Upon
exercise of the option, the issued shares shall be
pledged and held by the Board, along with a signed
proxy giving the Directors the right to vote the
shares at any shareholder meeting.
2. Stock in Valley of Sun of approximately sixteen
thousand six hundred (16,600) shares.
3. Promissory note of Carolina Multicommunications
Corporation the amount of Two Hundred Thirty-Five
Thousand Dollars ($235,000).
1.3.3 Closing: The closing of the sale of the Purchased
Assets shall be simultaneous with the signing by Purchaser
of the Two Hundred Thousand Dollar ($200,000) promissory
note, as required by Section 1.3.2 (c) hereof, following
Shareholder approval.
IN WITNESS WHEREOF, the parties have duly executed this Amendment
to the Asset Purchase Agreement Dated June 27, 1996
on the 31st day of December, 1996.
SELLER: PURCHASER:
ECLIPSE CORPORATION
(formerly MMSI)
------------------------
XXXXX X. XXXXXXX By:___________________________
Its: Secretary