EXHIBIT 10.30
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
BIOMERICA, INC.
AND SANGUI BIO TECH, INC
Dated as of September 12, 2002
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of September 15, 2002 (this
"Agreement"), is made and entered into by Biomerica Inc., a Delaware corporation
("Buyer" or "BMRA"), on the one hand, and Sangui Bio Tech, Inc., a Delaware
company ("Seller" or "Sangui"), on the other hand, with reference to the
following facts:
RECITALS
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A. Whereas Seller is the owner and titleholder to certain
technology which includes the necessary know-how and
expertise as listed in Schedule A to manufacture certain
immunodiagnostic test kits using antibodies provided by third
parties (hereafter "Intellectual Assets"); and
B. Whereas, Buyer wishes to purchase these Intellectual Assets
along with the ancillary tangible assets listed in Schedules B
and C (together, the "Assets"):
NOW, THEREFORE, in consideration of the above premises, and the
representations, warranties, covenants, conditions and promises hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, Buyer and Seller hereby agree as follows:
ARTICLE 1
DEFINITIONS
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1.1 DEFINED TERMS. As used herein, the terms below shall have the
following meanings. Any of such terms, unless the context otherwise requires,
may be used in the singular or plural, depending upon the reference.
AFFILIATE shall mean, with respect to any Person: (i) any director,
officer, employee or partner of such Person and any member of the family
(including spouse and siblings) of such Person or of any director, officer or
partner of such Person; and (ii) any other Person which directly or indirectly
controls, is controlled by or is under common control with such Person. As used
in this definition, "control" (and the correlatives, "controlled by" and "under
common control with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by Contract
or otherwise); provided, however, that in any event, any Person which owns,
directly or indirectly, fifty percent (50%) or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation (other than securities having such power only by reason of the
happening of a contingency) or fifty percent (50%) or more of the partnership or
other ownership interests of any non-corporate
Person (other than as a limited partner of such other Person) shall be deemed to
control such corporation or other Person.
AGREEMENT shall mean this Asset Purchase Agreement, together with its
exhibits and schedules.
CLAIM shall mean any claim, legal or equitable cause of action, suit,
litigation, proceeding (including a regulatory or administrative proceeding),
grievance, complaint, demand, charge, investigation, audit, arbitration,
mediation or other process for settling disputes or disagreements, including,
without limitation, any of the foregoing processes or procedures in which
injunctive or equitable relief is sought.
CLOSING shall have the meaning set forth in Section 8.1.
CONTRACT shall mean any contract or agreement related to the Assets.
DISCLOSURE SCHEDULES shall mean the disclosure schedules of Seller,
executed and delivered by Seller concurrently herewith, and as may be amended in
accordance with Section 6.6 below.
GROSS REVENUE shall mean the sum of all worldwide xxxxxxxx of the Buyer
or its Affiliates to purchasers of the products, less any credits, third-party
royalties, commissions, the cost of returned goods, discounts, or shipping
charges.
JUDGMENT shall mean any judgment, writ, order, injunction or decree of
or by any court, judge, justice or magistrate, including any bankruptcy court or
judge, and any order of or by any governmental authority.
KNOWLEDGE shall mean (i) when modifying or qualifying a representation,
warranty or other statement furnished by a party under this Agreement, that the
fact, situation or circumstance described therein is either actually known
and/or, with the exercise of reasonable inquiry or investigation under the
circumstances, should have been known by any manager, member, officer, director
or employee of such party; or (ii) when modifying or qualifying a
representation, warranty or other statement furnished by a party under this
Agreement as to the nonexistence of a fact, situation or circumstance described
therein, that no manager, member, officer, director or employee is either
actually aware of and/or, with the exercise of reasonable inquiry under the
circumstances, should have been aware of such fact, situation or circumstance.
LAW shall mean the common law and any federal, state or local statute,
ordinance, code or other law, rule, regulation, order, standard, requirement or
procedure enacted, adopted, promulgated, applied or followed by any governmental
authority.
LIABILITY shall mean any loss, loss of tax benefits or deductions,
assessment, fine, penalty, deficiency, interest, payment, expense, cost, debt,
indebtedness, liability, lien, claim, contract, judgment, damages of every kind
and nature or other obligation (whether due or
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payable, absolute or contingent, liquidated or un-liquidated, secured or
unsecured). As to Seller, Liability and/or Liabilities shall be strictly limited
to matters arising prior to the Closing.
LIENS shall mean any security agreement, financing statement (whether
or not filed), security interest, pledge, conditional sale or other title
retention agreement, license, lease, consignment or bailment given for security
purposes, lien, charge, option, encumbrance, constructive or other trust, Claim,
charge, attachment, exception to or defect in title or other ownership interest,
royalty obligations, restrictions on transferability, reservation of rights or
restrictive covenants of any kind, whether direct, indirect, accrued or
contingent.
PERSON shall mean any individual, trustee, corporation, general or
limited partnership, limited liability company or partnership, joint venture,
joint stock company, bank, firm, governmental authority, trust, association,
organization or unincorporated entity of any kind.
PRODUCTS shall mean those assays, test kits and related components
listed in Schedule A.
PURCHASED ASSETS shall mean those Assets listed in Schedules A, B and
C.
TANGIBLE PROPERTY shall mean the inventory and assets specified on
Schedules B and C, FOB the place(s) of storage designated by Seller, "as
is/where is" with no representations, warranties, or guarantees of any kind or
nature, except that tangible property shall be in saleable or usable condition.
All costs and risks of shipping and handling shall be the sole responsibility of
Buyer. All risk shall transfer to Buyer upon Closing.
1.2 CONSTRUCTION OF TERMS. The term "or" shall not be exclusive. The
terms "herein," "hereof," "hereto" "hereunder" and other terms similar to such
terms shall refer to this Agreement as a whole and not merely to the specific
article, section, paragraph or clause where such terms may appear. The term
"including" shall mean "including, but not limited to."
ARTICLE 2
PURCHASE AND SALE
-----------------
2.1 SALE OF ASSETS. Upon the terms and subject to the conditions of
this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and
deliver to Buyer, and Buyer shall acquire from Seller, good and marketable title
to the Purchased Assets, free and clear of any Liens, Judgments and Liabilities.
Without limiting any other provision of this Agreement, at or prior to
the Closing or if subsequently determined, after the Closing, Buyer and Seller
shall prepare, and Seller shall execute, deliver and record, if applicable, such
reasonable assignments, conveyances or documents of transfer as Buyer deems
appropriate to fully transfer, consummate and effectuate the assignment of any
Intellectual Assets associated with the Purchased Assets.
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2.2 CONSIDERATION. Upon the terms and subject to the conditions
contained herein, as full and complete consideration for the sale, transfer,
assignment, conveyance and delivery of the Purchased Assets, Buyer shall pay to
Seller cash payments as described below:
Twenty Thousand United States Dollars on December 1, 0000
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars on December 1, 2003.
Twenty Thousand United States Dollars on December 1, 2004.
2.3 Buyer shall use commercially reasonable efforts to market and sell
the Products listed in Appendix A. In the unlikely event that sales of the
Products listed in Appendix A for the year October 1, 2002-September 30, 2003
fall below $160,000, then the payment due on December 1, 2003 will be reduced by
the same percentage as the percentage of sales reduction. In the event that
sales of the Products for the year October 1, 2003-September 1, 2004 fall below
$160,000, then the payment due on December 1, 2004 will be reduced by the same
percentage as the percentage of sales reduction.
2.4 LIABILITIES OF SELLER. Buyer is not assuming any Liabilities of
Seller, including any Liabilities associated with any of the Purchased Assets,
by virtue of this Agreement or otherwise, and Seller shall be totally and
exclusively responsible for and shall timely pay, satisfy or provide for such
Liabilities.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
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OF SELLER
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Seller hereby represents, warrants and covenants to Buyer that, to the
Seller's knowledge, except as otherwise set forth in the Disclosure Schedules
attached hereto, the following representations and warranties are, as of the
date hereof, and will be, as of the Closing Date, true and correct.
3.1 ORGANIZATION; QUALIFICATION. Seller is a corporation duly
organized, validly existing and validly subsisting under the laws of the State
of Delaware, has the power and authority to own all of its assets, including the
Purchased Assets, and to carry on its business as it is now being conducted and
is duly qualified to do business, is validly subsisting in each jurisdiction in
which the ownership of its property or the conduct of its business requires such
qualification, and possesses all licenses, franchises, rights and privileges
related to the conduct of its business.
3.2 AUTHORITY OF SELLER. Seller has the full power and authority to
enter into this Agreement and any related documents to which Seller is a party
and to carry out its obligations hereunder and thereunder. The execution,
delivery and performance of this Agreement and any related documents by Seller
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by Seller's Board of Directors, and no other
proceedings on the part of Seller is necessary to authorize this Agreement or
the related documents or the transactions contemplated hereby and thereby. This
Agreement has, and any
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related documents will have been duly and validly executed and delivered by
Seller and constitute the valid and binding agreements of Seller, enforceable
against Seller in accordance with their terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
3.3 NO VIOLATION. The execution, delivery and performance of this
Agreement and any related document and the consummation of the transactions
contemplated hereby and thereby will not constitute, nor with notice or lapse of
time or both would constitute: (i) a violation of Seller's Certificate of
Organization (as amended or restated to date), or corporate resolutions or
actions of Seller's managers; (ii) a breach of or default under any Contract or
Judgment to which Seller is a party or is subject or to which any of the
Purchased Assets is subject or bound; (iii) an event which would permit any
Person to terminate any such Contract or to accelerate the maturity of any
indebtedness or other obligation of Seller; or (iv) the creation or imposition
of any Lien Assets.
3.4 TITLE TO PURCHASED ASSETS. Except as otherwise set forth herein:
(a) LIST OF PURCHASED ASSETS. The items described on Schedules
A, B, and constitute an accurate, correct and complete list and description of
all of the Purchased Assets, correctly and adequately identifies all of the
Purchased Assets and includes written copies or other evidences of licenses,
registrations, filings or applications for registration or filing of
Intellectual Assets associated with the Purchased Assets.
(b) GOOD TITLE. Except as set forth on Schedule 3.4(b), (i)
Seller has good, valid, marketable and indefensible title to, and is the
exclusive legal and equitable owner of, or exclusive licensee of, all of the
Purchased Assets, including all Intellectual Assets included therein, free and
clear of any and all Liens, Judgments and other Liabilities, (ii) there are no
Contracts or understandings that are reasonably likely to have an adverse effect
upon Seller's title to or other rights respecting the Purchased Assets, and
(iii) no proprietary rights in any of the Purchased Assets have been
transferred, whether by sale, assignment or license, or have been lost by
Seller.
(c) PROTECTION OF OWNERSHIP INTEREST. All of the Intellectual
Assets included within the Purchased Assets have been protected, and have not
been used, divulged, or appropriated for the benefit of any other Person or to
the detriment of Seller. Seller has taken all reasonable security measures to
protect the secrecy, confidentiality and value of the Intellectual Assets that
will he sold and transferred in accordance with this Agreement. Seller has not
taken any action, or, failed to take any action which directly or indirectly
caused the proprietary information associated with the Purchased Assets to enter
the public domain or in any way affect its value or Seller's absolute and
unconditional ownership thereof
(d) NO LIMITATIONS ON PURCHASED ASSETS. Except as set forth in
Schedule 3.4(c), all rights to any Tangible Property or Intellectual Assets
which constitute any portion of the Purchased Assets have been validly acquired
or created, and are owned, by Seller, free and
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clear of any Liens, Judgments or other adverse claims by any predecessor of
Seller, or creditor of Seller, and no such property rights remain in any such
Person or entity. Seller is under no obligation to pay any other Person, any
royalties or other fixed or contingent amounts based upon the sale, license,
distribution or other use or exploitation of any of the Purchased Assets and,
upon the consummation of the transactions set forth herein, Buyer shall .not be
subject to any limitations, obligations, contingencies, royalties or
restrictions with regard to the sale, license, distribution or other transfer or
exploitation of the Purchased Assets.
3.5 INTELLECTUAL ASSETS. Except as otherwise set forth herein:
(a) Schedule A sets forth an accurate, correct and complete
list of the Seller's Intellectual Assets that are being transferred to Buyer
through this Asset Purchase Agreement.
(b) Except as set forth in Schedule 3.5(b) (i) Seller has
good, valid, marketable and indivisible title to and is the exclusive legal and
equitable owner of, all of the Intellectual Assets, free and clear of any Liens,
Judgments or other Liabilities; (ii) Seller is the owner of and has the
exclusive rights to any applications or registrations relating to, or public or
private filings made with respect to, any of the Intellectual Assets; (iii) no
action, suit, proceeding or investigation concerning such Intellectual Assets is
pending or, to Seller's Knowledge, threatened; (iv) neither such Intellectual
Assets nor Seller's use of such Intellectual Assets interferes with, infringes
upon, conflicts with or otherwise violates the rights of any Person or, are
being interfered with or infringed upon by any Person, and none is subject to
any outstanding Judgment, stipulation or charge; (v) Seller has not agreed to
indemnify any Person for or against any infringement of or by such Intellectual
Assets; (vi) to Seller's Knowledge, there have not been any patent, invention or
application therefore or similar property or development which would bar the use
of or infringe upon any such Intellectual Assets or render obsolete or adversely
affect the products or services relating to such Intellectual Assets. Except as
set forth in Schedule 3.5(b), Seller is not subject to any Judgment of any
governmental authority or any arbitrator, nor is Seller a party to any Contract,
which restricts or impairs its use of any of the Intellectual Assets.. Seller
has not received notice of any violation of trade secret rights, copyrights or
other proprietary rights with respect to any of the Intellectual Assets and, to
Seller's knowledge, there is no basis therefore,
(c) To the knowledge, information and belief of Seller, the
transactions contemplated by this Agreement will not affect the validity or
enforceability of, or create a Lien or claim upon, any right, title or interest
of Seller in or to the Intellectual Assets. No approval or consent is required
to be obtained, and no notice is required to be given, with respect to the
Intellectual Assets in connection with this Agreement or the consummation of the
transactions contemplated hereunder.
3.6 MANUFACTURING AND TECHNOLOGY RIGHTS. Seller has not granted rights
to manufacture, publish, produce, assemble, license or sell the Intellectual
Assets or any other rights
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related to the Purchased Assets to any other Person and is not bound by any
Contract which affects Seller's exclusive right to engage in such activities.
3.7 LITIGATION. There are no Claims pending before any governmental
authority, arbitrator or other dispute resolution body nor, to Seller's
Knowledge, is there any threat of or basis for any such Claim: (i) which
questions the validity of this Agreement or the related documents or the right
of Seller to enter into this Agreement or the related documents; (ii) challenges
the ownership or use, in any respect, of any of the Purchased Assets; (iii)
challenges the rights of Seller under, or the validity of, any of the
Intellectual Assets; or (iv) otherwise affects the Purchased Assets in any
manner. There is no Claim being made by Seller which is currently pending or
which is intended to be initiated involving any of the Purchased Assets.
3.8 TAXES. There are no Tax Liens or Judgments against or affecting any
of the Purchased Assets and there is no basis for any such Lien or Judgment.
3.9 COMPLIANCE WITH LAWS. To the best of the Seller's knowledge,
information and belief, Seller is in compliance, in all material respects, with
all Laws applicable to its operations, businesses, Purchased Assets and
activities, including, without limitation, Laws relating to the use, storage, or
disposal of any hazardous materials, environmental Laws, Laws relating to the
use or occupancy of any real property, antitrust Laws arid other Laws governing
competitive practices, Tax Laws and the Employee Retirement Income Security Act
of 1974, as amended, except to the extent that non-compliance would have an
inconsequential effect upon any of the Purchased Assets.
3.10 INVESTMENT BANKERS, FIND OR BROKERS. Neither Seller nor any
Affiliate of Seller will have an obligation to pay any broker, finder,
investment banker, financial advisor or similar fee or expense in connection
with the transactions described in this Agreement and the related documents by
reason of any action taken by or on behalf of Seller.
3.11 MATERIAL MISSTATEMENTS OR OMISSIONS. No representation or warranty
furnished by Seller or the Members in this Agreement, the Disclosure Schedules,
and in any certificate, agreement or document furnished by Seller pursuant to
this Agreement, contains or will contain any untrue statement of a material fact
or omits or will omit to state any material fact necessary to make the
statements or facts contained herein or therein not misleading in view of the
circumstances under which they are made.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer represents, warrants and covenants to Seller as follows, which
representations and warranties are, as of the date hereof, and will be, as of
the Closing Date, true and correct:
4.1 ORGANIZATION: QUALIFICATION. Buyer is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Delaware,
has the corporate power
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and authority to own its properties and assets and to carry on its business as
now conducted, and possesses all licenses, franchises, rights and privileges
related to the conduct of its business.
4.2 CORPORATE AUTHORITY OF BUYER. Buyer has the requisite corporate
power and authority to enter into this Agreement and any related documents to
which Buyer is a party and to carry out its obligations hereunder and there
under. The execution, delivery and performance of this Agreement and the related
documents and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action
on the part of Buyer. This Agreement has, and any related documents will have,
been duly and validly executed and delivered by Buyer, and are the valid and
binding agreements of Buyer, enforceable against Buyer in accordance with their
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
4.3 INVESTMENT BANKERS, FINDERS OR BROKERS. Buyer will not have an
obligation to pay any broker, finder, investment banker, financial advisor or
similar fee or expense in connection with the transactions described in this
Agreement and the related documents by reason of any action taken by or on
behalf of Buyer.
4.4 MATERIAL MISSTATEMENTS OR OMISSIONS. No representation or warranty
furnished by Buyer in this Agreement and in any certificate, agreement or
document furnished by Buyer pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or omits or will omit to state any
material fact necessary to make the statements or facts contained herein or
therein not misleading in view of the circumstances under which they are made.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
------------------------------------------
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Buyer set forth in Article 4 of this Agreement shall survive
for a period of one (1) year after the Closing Date. Regardless of any
investigation which may have been made by or on behalf of Buyer, the
representations and warranties of Seller set forth in Article 3 of this
Agreement, and in any other certificate or document furnished by Seller pursuant
to this Agreement shall survive the Closing for a period of one (1) year after
the Closing Date.
5.2 BUYER'S RIGHT OF OFFSET. Anything in this Agreement to the contrary
notwithstanding, with respect to any amount Buyer is obligated to pay because of
a breach of Seller of any provision of
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the Article 3, Buyer may withhold and set off against any amount not yet paid,
but no greater than the amount scheduled in Article 2. Anything in this
Agreement to the contrary notwithstanding, in no event shall Seller be liable to
Buyer for any amount in excess of the amount Buyer is obligated to pay Seller
pursuant to Article 2, and Buyer's remedy for any claim against Seller pursuant
to this Agreement shall be limited to Buyer's right of offset as provided in
this Section 5.2.
ARTICLE 6
ADDITIONAL COVENANTS AND AGREEMENTS
-----------------------------------
Seller and Buyer further covenant and agree as follows:
6.1 PUBLIC ANNOUNCEMENTS. Neither Seller or Buyer shall issue or
release any public announcement, press release, statement or acknowledgment of
the existence of, or reveal publicly the terms, conditions or status of, the
transactions provided for herein (including any communication to business
partners or governmental authorities) without the prior written consent of the
other party as to the content and timing of release of and the media in which
such statement or announcement is to be made; provided, however, that in the
case of announcements, statements, acknowledgments or revelations which any
party is required by Law to make, issue or release, the making, issuing or
releasing of any such announcement, statement, acknowledgment or revelation by
the party so required to do so by Law shall not constitute a breach of this
Agreement if such party shall have given, to the extent reasonably possible, not
less than two (2) calendar days prior notice to the other party, and shall have
attempted, to the extent reasonably possible, to clear such announcement,
statement, acknowledgment or revelation with the other parties. Each party
hereto agrees that it will not unreasonably withhold any such consent or
clearance,
6.2 BEST EFFORTS: FURTHER ASSURANCES. Buyer and Seller shall each use
its best efforts in good faith to perform, comply with and otherwise satisfy all
of the conditions and covenants to be satisfied by such party under this
Agreement prior to the Closing of the transactions contemplated hereunder. Each
of the parties hereto shall perform any and all acts and shall execute and
deliver any and all additional documents as are or may become reasonably
necessary to carry out the provisions of this Agreement that are consistent with
the intent of the parties hereto.
6.3 POST-CLOSING ASSIGNMENTS AND ASSURANCES. If at any time after the
Closing legal counsel for Buyer shall deem it necessary, advisable or
appropriate to take further or additional steps for the purpose of assigning,
assuming, transferring, conveying, perfecting and/or confirming or reducing to
possession any of the Purchased Assets or for the purpose of fully consummating
the transactions contemplated hereunder or any transactions incident thereto,
Seller shall execute, acknowledge and deliver any such reasonable assignments,
assumptions, conveyances, certificates or other documents or instruments of
transfer consistent with the intent and purposes of this Agreement.
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6.4 EXPENSES. Except as otherwise provided in this Agreement, Buyer and
Seller shall pay their own costs and expenses (including all legal and
accounting fees) arising from the negotiation, execution and performance of this
Agreement and any related documents, whether or not the transactions
contemplated hereunder or there under are consummated.
6.5 NON-DISCLOSURE BY SELLER. Seller acknowledges and agrees that, once
the sale of the Purchased Assets to Buyer has been consummated hereunder, all
Purchased Assets, all Intellectual Assets included therein, and all other
information or data related to the Purchased Assets shall be confidential and
proprietary exclusively to Buyer (the "Confidential Information"). Seller
further acknowledges and agrees that preserving the proprietary character of the
Confidential Information is critical to the successful operations and value of
Buyer. In view of the foregoing, Seller covenants arid agrees that: (i) all
Confidential Information, as of the Closing Date, will be owned exclusively by
Buyer and that Seller shall not reserve, retain or have any right, title or
interest in or to any such Confidential Information; and (ii) Seller shall hold
all such Confidential Information in strictest confidence indefinitely and shall
not disclose, divulge, exploit or use, in any manner whatsoever, any of the
Confidential Information for its own benefit or the benefit of any Person other
than Buyer.
6.6 AMENDMENT TO DISCLOSURE SCHEDULES. During any period prior to
Closing, Seller will update and amend the Disclosure Schedules delivered
concurrently with the execution and delivery of this Agreement so that the
Disclosure Schedules, as amended, are accurate as of the Closing Date. Seller
will make all updates and amendments to the Disclosure Schedules as soon as
reasonably practicable after discovery of the additional information.
Notwithstanding the foregoing, Buyer, in its sole discretion, may refuse to
accept any updates or amendments to the Disclosure Schedules that impact the
Purchased Assets.
6.7 ASSISTANCE FROM BUYER TO SELLER ON SELLER'S EXISTING ACCOUNT
RECEIVABLES. Buyer will assist Seller in certain outstanding account receivables
from the current distributors and customers pertaining to the 5 products listed
on SCHEDULE A INTELLECTUAL PROPERTY and by-products or components thereof. In
the event that the distributor(s) and/or customer(s) refuse to pay the invoices
owed to the Buyer, Seller will notify the non-conforming distributor(s) or
customer(s) that the invoice(s) owed to the Buyer must be paid prior to shipment
of a new order received by the Buyer. This assistance is limited only to the
customers who have ordered the products or by-products as listed on Schedule A,
from the Buyer.
ARTICLE 7
CONDITIONS TO CLOSING
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7.1 CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer to
consummate the transactions provided for hereby are subject, in the reasonable
discretion of Buyer, to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, any of which may be waived by Buyer:
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(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Seller contained in this Agreement shall be true and correct
at and as of the date of this Agreement and at and as of the Closing Date,
except as and to the extent that the facts and conditions upon which such
representations and warranties are based are expressly required or permitted to
be changed by the terms hereof, and the Seller will have performed and satisfied
all agreements and covenants required hereby to be performed by it prior to or
on the Closing Date.
(b) CONSENTS. All consents necessary to the consummation of
the transactions contemplated hereby shall have been obtained.
(c) CLOSING DOCUMENTS. Seller shall have tendered for delivery
the documents and other items to be delivered by Seller pursuant to Section
8.2(a) of this Agreement in the form and substance reasonably satisfactory to
the Buyer.
(d) MATERIAL ADVERSE EFFECT. There shall not have occurred any
event, fact or circumstance that causes, results in or constitutes a material
adverse effect upon all or any portion of the Purchased Assets.
(e) ASSIGNMENTS. Seller shall have executed and, if necessary,
recorded any assignments, conveyances, or documents of transfer as Buyer deems
appropriate to fully consummate and effectuate the assignment of any
Intellectual Assets in connection with the Purchased Assets to Buyer.
(f) DUE DILIGENCE REVIEW. Buyer had the opportunity to conduct
a due diligence review of the Seller and the Purchased Assets, and in the sole
discretion of the Buyer, Buyer is satisfied that it should proceed with the
transactions contemplated hereby.
(g)
7.2 CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller to
consummate the transactions provided for hereby are subject, in the reasonable
discretion of Seller, to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, any of which may be waived by Seller:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Buyer contained in this Agreement shall be true and correct at
and as of the date of this Agreement and at and as of the Closing Date, except
as and to the extent that the facts and conditions upon which such
representations and warranties are based are expressly required or permitted to
be changed by the terms hereof, and the Buyer shall have performed and satisfied
all agreements and covenants required hereby to be performed by it prior to or
on the Closing Date.
(c) CLOSING DOCUMENTS. Buyer shall have tendered for delivery
the documents and other items to be delivered by Buyer pursuant to Section
8.2(b) of this Agreement in the form and substance reasonably satisfactory to
the Seller.
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ARTICLE 8
CLOSING
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8.1 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on September 30, 2002 (the "Closing
Date") via facsimile, unless the parties hereto otherwise agree.
8.2 DELIVERIES AT CLOSING. On the Closing Date:
(a) DELIVERIES BY SELLER TO BUYER. The Seller shall execute,
where applicable, and deliver to Buyer:
(i) A Xxxx of Sale, in the form attached hereto as
Exhibit A, conveying the Purchased Assets;
(ii) CERTIFIED RESOLUTIONS. Resolutions adopted by
the managers of the Seller, duly certified by a manager of the Seller,
authorizing the sale of the Purchased Assets to Buyer as contemplated hereunder
and approving the execution, delivery and performance of this Agreement arid any
related documents to which Seller is a party and the consummation of the
transactions contemplated hereby and thereby, have been delivered to Buyer.
(iii) CERTIFICATE OF INCUMBENCY. Seller shall have
delivered to Buyer a certificate of incumbency certifying to the authority of
individuals who have executed this Agreement arid any documents related thereto
on behalf of Seller.
INTELLECTUAL ASSETS. All Intellectual Assets including but not limited to design
control records, manufacturing documents, quality control documents, technical
support records, historical files, standard operating procedures, customer
lists, vendor lists, copies of FDA submissions, computer files, notebooks,
processes reduced to writing, spread sheets, formulas, and the like and any and
all other documentation that will assist the Buyer in producing, selling and
marketing Products. The conveyance of the intellectual assets will be made by
the employees of Sangui Biotech, Inc. at 0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxx Xxx, Xxxxxxxxxx.
(iv) OTHER DOCUMENTS. All other documents reasonably
necessary to vest in Buyer the Purchased Assets pursuant to the terms hereof as
Buyer may reasonably request.
(v) TANGIBLE ASSETS. Seller shall deliver to Buyer as
soon as practicable after the Closing, but in no event after more than three (3)
business days, all the Tangible Assets listed on Schedule B and such
Intellectual Assets that were too bulky or cumbersome to deliver at the Closing,
to the offices of the Buyer or the Buyer's Agents, 0000 Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx or such other location, within reasonable proximity,
designated at the Closing
12
by the Buyer. Risk of loss or damage to the Purchased Assets shall pass to the
Buyer at the Closing but Seller shall use reasonable care in transporting the
Assets, acting with such case as though the Assets were still the property of
the Seller, to effect delivery of the Purchased Assets to the Buyer. Buyer will
either provide pick up services at the expense of the buyer to move the Tangible
Assets listed on Schedule B or will furnish the pickup with both the employees
of the Seller and the Buyer.
(b) DELIVERIES BY BUYER TO SELLER. The Buyer shall execute,
where applicable, and deliver to Seller:
(i) This Agreement,; and
(ii) Such other documents and items as the Seller may
reasonably request.
ARTICLE 9
MISCELLANEOUS PROVISIONS
------------------------
9.1 NOTICES. Any and all notices, requests, consents, demands or other
communications required or permitted to be given under this Agreement (the
"Notice") shall be in writing and shall be deemed to have been duly given (i)
when delivered, if sent by United States registered or certified mail (return
receipt requested), (ii) when delivered, if delivered personally by commercial
courier, (iii) on the second following business day, if sent by United States
Express Mail or overnight courier or (iv) upon the date reflected on a facsimile
confirmation from the transmitting facsimile machine, if sent by facsimile
transmission and delivery of the facsimile transmission is confirmed
telephonically within one (1) business day, whether or not such Notice was
received or rejected, and in each case to the parties at the following addresses
or facsimile numbers (or at such other addresses or facsimile numbers as shall
be specified by like notice) with applicable postage or delivery charges
prepaid:
If to Buyer:
Biomerica, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attn.: Xxxxxxx Xxxxxxxxx
If to Seller:
Sangui Bio Tech, Inc.
c/o Sangui BioTech AG
Xxxxxx Xxxxxxxxxx Xxxxxxx 00
D-58455 Xxxxxx
Germany
13
Attn.: Xxxxxxxxx Xxxxxxxx Xxxxxxxx
9.2 HEADINGS. The headings of the sections of this Agreement are
inserted for convenience of reference only and are not intended to affect the
meaning or interpretation of this Agreement.
9.3 ENTIRE AGREEMENT. This Agreement, together with the exhibits,
constitutes the final written integrated expression of all of the agreements
between Buyer and Seller respecting the matters addressed herein. This Agreement
and the exhibits attached hereto supersede all prior or contemporaneous, written
or oral, memoranda, arrangements, Contracts or understandings between or among
the parties hereto relating to the subject matter hereof. Any representations,
promises, warranties or statements made by any party which differ in any way
from the terms of this Agreement, the Disclosure Schedules and the exhibits
attached hereto shall be given no force or effect. The parties specifically
represent, each to the other, that there are no additional or supplemental
agreements or Contracts between them related in any way to the matters herein
contained unless specifically included or referred to herein.
9.4 WAIVER. Either Buyer or Seller may, by written notice to the other,
(i) waive any of the conditions to its obligations hereunder or extend the time
for the performance of any of the obligations or actions of the other; (ii)
waive any inaccuracies in the representations of the other contained in this
Agreement, the Disclosure Schedules (as may be amended), or in any documents
delivered pursuant to this Agreement; (iii) waive compliance with any of the
covenants of the other contained in this Agreement; and (iv) waive or modify
performance of any of the obligations or the other. Neither consummation of the
transactions contemplated hereunder nor any action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action or
waiver of compliance with any representation, warranty, condition or agreement
contained herein. Waiver of the breach of any one or more provisions of this
Agreement shall not be deemed or construed to be a waiver of other breaches or
subsequent breaches of the same provisions.
9.5 SEVERABILITY. In the event that any provision in this Agreement
shall be found by a court or arbitrator of competent jurisdiction to be invalid,
illegal or unenforceable, such provision shall be construed and enforced as if
it had been narrowly drawn so as not to be invalid, illegal or unenforceable,
and the validity, legality, and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby.
9.6 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of the Seller and its successors and assigns. Without limiting the generality of
the foregoing, the Seller may assign or otherwise transfer its rights to receive
the payments from Buyer under Article 2 to any other party, including without
limitation, its sole owner, Sangui Biotech International, Inc. and its
affiliates, Sangui Biotech AG and GlukoMeditech AG.; provided, however, that
Buyer's obligations to make the payments to Seller as provided in Article 2 may
not be assigned without the consent of the Seller.
14
9.7 GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed, interpreted and enforced in accordance
with, and governed by, the laws of the State of California, without regard to
principles relating to conflicts of law, Any and all service of process shall be
effective against any party if given personally or by registered or certified
mail, return receipt requested, or by any other means of mail that requires a
signed receipt, postage prepaid, mailed to such party as herein provided.
9.8 CONSTRUCTION. This Agreement has been drafted with the joint
participation of each of the parties hereto and shall be construed to be neither
against nor in favor of any party hereto, but rather in accordance with the fair
meaning hereof.
9.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered the same agreement.
9.10 AMENDMENTS. No amendment, modification or addition to this
Agreement, in any minor or material respect, shall be valid unless expressly set
forth in a dated, written instrument which has been signed by Seller and Buyer.
9.11 ATTORNEYS' FEES. In the event of any dispute with respect to the
subject matter of or construction of this Agreement (including an arbitration or
mediation), the prevailing party shall be entitled to recover its reasonable
attorneys' fees and court, arbitration or mediation costs incurred in resolving
or settling the dispute, in addition to any and all other damages or relief
which a court, arbitrator or mediator may deem proper.
9.12 NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
BUYER: BIOMERICA INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Title: President
SELLER: SANGUI BIO TECH, INC.
By: /s/ signature
-----------------------------
Title:
SCHEDULE A - INTELLECTUAL PROPERTY
----------------------------------
All and any know-how involved in the development, manufacture, quality control,
sale and support of the products listed below, including, but not limited to
design control records, manufacturing documents, quality control documents,
technical support records, historical files, customer lists, vendor lists, and
any and all other documentation that will assist Buyer in producing selling and
marketing such products:
Parathyroid Hormone (PTH) XXXX Assay
Parathyroid Hormone (PTH) ELISA Assay
Adrenocortocotropic Hormone (ACTH) ELISA Assay
Calcitonin ELISA Assay
Erythropoictin (EPO) ELISA Assay
16
SCHEDULE B - TANGIBLE ASSETS
----------------------------
Conference table and chairs (Xxxxx)
AST Computer (Best Buy)
Compaq Computer (Staples)
HP LaserJet 3100S (Staples)
HP eVetra (PC Connection)
Microplate Reader & Software (Bio-Tek)
Pump & Accessories (Xxxx-Xxxxxx)
Microplate MultiWash (Labsystems)
Commercial Refrigerator, 2-door, Beverage-Air (Ace Fixture)
IsoData Gamma Counter, 20/10 (CaDxServ)
Mettier Analytical Balance (Genie Corp)
Centrifuge (VWR)
Microplate Washer (Bio-Tek)
Column for Bead Processing (Millipore)
Walk-in Refrigerator (Norm's Refrigeration)
Pump Dispenser & Pumphead (Xxxx-Xxxxxx)
Scale, High Capacity (XxXxxxxx-Xxxx)
Vacuum Pressure Pump (Xxxx Xxxxxx)
PH Meter (VWR)
Vacuum Pump (XXXX)
Water Bath (Blue M)
Miscellaneous refrigerators, freezers, shelving, etc. at the principal location
of the Seller.
17
SCHEDULE C - INVENTORY
----------------------
The inventory was counted as of June 30, 2002, the fiscal year end of
Sangui BioTech Inc. Xxxxxx & Xxxxx Certified Accountants, LLP, Irvine, CA,
auditors to Sangui BioTech Inc. conducted their testing on the inventory counts
submitted to them using the generally accepted accounting principles as one of
their audit exercises and process. The attached Sub-Schedule C is a bona fide
copy of the inventory submitted the CPA firm, with the deletion of all items NOT
listed to Schedule A of this agreement.
Subsequent to June 30, 2002, Sangui BioTech Inc. used some of the
inventory for shipments to meet orders, take some of the raw material to make
intermediate components, purchased some raw material to continue to make the
intermediate components such as the calibrators. The significant changes in
inventory mostly pertain to the manufacturing of calibrators for Parathyroid
Hormone (PTH) ELISA Assay, Adrenocortocotropic Hormone (ACTH) ELISA Assay,
Calcitonin ELISA Assay and Parathyroid Hormone (PTH) XXXX listed in Schedule A
of this agreement, because there were insufficient quantities to meet expected
orders from the customers and distributors. Biomerica agrees to accept the
inventory as submitted by the employees of Sangui BioTech Inc. provided the
inventory received agrees reasonably well with the quantities shown in
Sub-Schedule C, with due considerations to the usages and new purchases as
described above.
EXHIBIT A
XXXX OF SALE
Sangui Bio Tech Inc., a Delaware corporation (the "Assignor"), for good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, does hereby sell, assign, transfer, and convey unto BIOMERICA,
INC., a Delaware corporation (the "Assignee"), its successors and assigns, all
rights (whether at common law or otherwise), title and interest in and to the
Purchased Assets, all as described in that certain Asset Purchase Agreement
dated September 15, 2002 by and between the Assignor and the Assignee (the
"Purchased Assets"), to have and to hold the Purchased Assets forever.
The Assignor, subject to the terms of the Asset Purchase Agreement
relating to the sale of the Assets, does hereby warrant, covenant, and agree
that it
(a) Has good and marketable tide to the Assets hereby sold,
assigned, transferred, conveyed, and delivered;
(b) Will warrant and defend the sale of the Assets against all and
every person or persons whomsoever claiming to or making
claim against arty or all of the same; and
(c) Will take all reasonable steps necessary to put Assignee, its
successor or assigns, in actual possession and operating
control of the Assets.
IN WITNESS WHEREOF, the Assignor has caused the same to be signed this
30th day of September, 2002.
Sangui Bio Tech, Inc.
A Delaware Corporation company
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------
Name:
Its:
CERTIFICATE OF INCUMBENCY
Each of the undersigned, Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx, hereby
certifies that he is the incumbent President and Secretary, respectively, of
Sangui Bio Tech, Inc., a Delaware corporation (the "Corporation") and that, as
such, he is authorized to execute on behalf of the Corporation the Asset
Purchase Agreement by and between the Corporation and Biomerica Inc., a Delaware
corporation, dated as of September 15, 2002, as well as any other documents
required to be executed as contemplated by the Asset Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
behalf of Corporation as of September 12, 2002.
SANGUI BIO TECH, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxxx, President
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
*****
OFFICER'S CERTIFICATE
The undersigned, Xxxxxxxx Xxxxxxxx, does hereby certify that he is the
President of Sangui Bio Tech, Inc., a Delaware corporation (the "Corporation"),
and that the following resolutions were duly adopted by the Board of Directors
of the Corporation (the "Board") by unanimous written consent of the Board
executed to be effective as of September 11, 2002:
WHEREAS, Sangui BioTech International, Inc., a Colorado corporation
("Patent"), owns all the outstanding equity interests in the Corporation;
WHEREAS, Messrs. Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx are the President
and Secretary, respectively, of the Corporation;
WHEREAS, the Corporation and Parent have been in negotiations with
Biomerica Inc., a Delaware corporation ("Buyer"), to enter into an Asset
Purchase Agreement (the "Agreement") pursuant to which the Corporation will sell
all its assets (collectively, the "Assets") to Buyer in exchange for $60,000
cash to the Corporation (the "Purchase Price");
WHEREAS, pursuant to the Agreement, Buyer shall pay the Purchase Price
by paying $20,000 to the Corporation on each of December 1, 2002, December 1,
2003 and December 1, 2004;
WHEREAS, the Board has reviewed a draft of the Agreement as well as a
Xxxx Of Sale and additional documents (collectively, the "Ancillary Documents")
to be executed upon consummation of the transactions contemplated by the
Agreement (the "Closing");
WHEREAS, the Board believes that it is in the Corporation's best
interests for the Corporation to effect the transactions contemplated by the
Agreement and the Ancillary Documents;
RESOLVED, that the Board approves the Corporation's sale of the Assets
to Buyer;
FURTHER RESOLVED, that the Corporation enter into the Agreement and the
Ancillary Documents pursuant to which the Corporation will agree to sell the
Assets to Buyer; and
FURTHER RESOLVED, that each of Messrs. Barnikol and/or Onishi be, and
each of them hereby is, authorized and directed to do and perform, or cause, to
be done and performed, all such acts, deeds and things, and to make, amend,
execute and deliver, or cause to be made, amended, executed and delivered, the
Agreement and the Ancillary Documents and all such other agreements,
undertakings, documents, instruments or certificates in the name and on behalf
of the Corporation or otherwise as each such officer may deem necessary or
appropriate to effectuate or carry out fully the purpose and intent of the
foregoing resolutions arid any of the transactions contemplated thereby.
1
IN WITNESS WHEREOF, I have hereunto signed my name as of September ___,
2002.
SANGUI BIO TECH, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxxx Xxxxxxxx, President
*****
CONSENT OF DIRECTORS
OF
SANGUI BIO TECH, INC.
Pursuant to Section 141 of Title 8 of the General Corporation Law of
Delaware, the undersigned, being all the members of the Board Of Directors (the
"Board") of Sangui Bio Tech, Inc., a Delaware corporation (the "Corporation'),
hereby consent to, vote in favor of; and adopt the following resolutions by
unanimous written consent without a meeting:
WHEREAS, Sangui BioTech International, Inc., a Colorado corporation
("Parent"), owns all the outstanding equity interests lathe Corporation;
WHEREAS, Messrs. Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx are the President
and Secretary, respectively, of the Corporation;
WHEREAS, the Corporation and Parent have been in negotiations with
Biomerica Inc., a Delaware corporation ("Buyer"), to enter into an Asset
Purchase Agreement (the "Agreement") pursuant to which the Corporation will sell
all its assets (collectively, the "Assets") to Buyer in exchange for $60,000
cash to the Corporation (the "Purchase Price");
WHEREAS, pursuant to the Agreement, Buyer shall pay the Purchase Price
by paying $20,000 to the Corporation on each of December 1, 2002, December 1,
2003 and December 1, 2004;
WHEREAS, the Board has reviewed a draft of the Agreement as well as a
Xxxx Of Sale and additional documents (collectively, the "Ancillary Documents")
to be executed upon consummation of the transactions contemplated by the
Agreement (the "Closing");
WHEREAS, the Board believes that it is in the Corporation's best
interests for the Corporation to effect the transactions contemplated by the
Agreement and the Ancillary Documents;
RESOLVED, that the Board approves the Corporation's sale of the Assets
to Buyer
FURTHER RESOLVED, that the Corporation enter into the Agreement and the
Ancillary Documents pursuant to which the Corporation will agree to sell the
Assets to Buyer; and
FURTHER RESOLVED, that each of Messrs. Barnikol and/or Onishi be, and
each of them hereby is, authorized and directed to do and perform, or cause to
be done and performed, all such acts, deeds and things, and to make, amend,
execute and deliver, or cause to be made, amended, executed and delivered, the
Agreement and the Ancillary Documents and all such other agreements,
undertakings, documents, instruments or certificates in the name and on behalf
of the Corporation or otherwise as each such
1
officer may deem necessary or appropriate to effectuate or carry out fully the
purpose and intent of the foregoing resolutions and any of the transactions
contemplated thereby
This Consent Of Directors may be executed in one or more counterparts,
all of which taken together shall constitute a single instrument. This Consent
Of Directors is executed to be effective as of September 11, 2002.
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
/s/ Xxxxxxx Xxxx
-----------------------------------
Xxxxxxx Xxxx
*****
2
CONSENT OF DIRECTORS
OF
SANGUI BIOTECH INTERNATIONAL, INC.
Pursuant to Section 0-000-000 of the Colorado Business Corporation Act,
the undersigned, being all the members of the Board Of Directors (the "Board")
of Sangui BioTech International, Inc., a Colorado corporation (the
"Corporation"), hereby consent to, vote in favor of, and adopt the following
resolutions by unanimous written consent without a meeting:
WHEREAS, the Corporation owns all the outstanding equity interests in
Sangui BioTech, Inc., a Delaware corporation ("Seller");
WHEREAS, (1) Messrs. Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx are the
President and Secretary, respectively, of Seller, and (2) the undersigned
members of the Board also are the only directors of Seller;
WHEREAS, the Corporation and Seller have been in negotiations with
Biomerica a Delaware corporation ("Buyer"), to enter into an Asset Purchase
Agreement (the "Agreement") pursuant to which Seller will sell all its assets
(collectively, the "Assets") to Buyer in exchange for $60,000 cash to Seller
(the "Purchase Price");
WHEREAS, pursuant to the Agreement, Buyer shall pay the Purchase Price
by paying $20,000 to Seller on each of December 1, 2002, December 1, 2003 and
December 1, 2004;
WHEREAS, the Board has reviewed a draft of the Agreement as well as a
Xxxx Of Sale and additional documents (collectively, the "Ancillary Documents")
to be executed upon consummation of the transactions contemplated by the
Agreement (the "Closing");
WHEREAS, the Board believes that it is in the Corporation's and
Seller's best interests for Seller to effect the transactions contemplated by
the Agreement and the Ancillary Documents;
RESOLVED, that the Board approves Seller's sale of the Assets to Buyer;
FURTHER RESOLVED, that Seller enter into the Agreement and the
Ancillary Documents pursuant to which Seller will agree to sell the Assets to
Buyer;
FURTHER RESOLVED, that, as the sole shareholder of Seller, the
Corporation confirms the election of each of the undersigned members of the
Board as the members of the Board Of Directors of Seller, and
FURTHER RESOLVED, that each of Messrs. Barnikol and/or Onishi be, and
each of them hereby is, authorized and directed to do and perform, or cause to
be done and performed, all such acts, deeds and things, and to make, amend,
execute and deliver, or cause to be made, amended, executed and delivered, the
Agreement and the Ancillary
1
Documents and all such other agreements, undertakings, documents, instruments or
certificates in the name and on behalf of Seller or otherwise as each such
officer may deem necessary or appropriate to effectuate or carry out fully the
purpose and intent of the foregoing resolutions and any of the transactions
contemplated thereby.
This Consent Of Directors may be executed in one or more counterparts,
all of which taken together shall constitute a single instrument. This Consent
Of Directors is executed to be effective as of September 11, 2002.
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
/s/ Xxxxxxx Xxxx
-----------------------------------
Xxxxxxx Xxxx
*****
2
