CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
CONFIDENTIAL
TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED
AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
ASSET
PURCHASE AGREEMENT
This
Asset Purchase Agreement is entered into as of August 3, 2006, between Inyx,
Inc., a Nevada corporation or its nominee ("Buyer"),
and
Advanced Medical Optics, Inc., a Delaware corporation, on behalf of itself
and
its subsidiaries (collectively, "Seller").
R
E C I T A L S
WHEREAS,
Seller owns certain assets more particularly described in this Agreement, used
by it in the Seller’s business (the “Business”)
of
selling the eye care products listed in Schedule 1 to this Agreement (the
“Products”);
and
WHEREAS,
Seller desires to sell, and Buyer desires to buy, those assets and Buyer is
willing to assume certain specific obligations and liabilities, for the
consideration and on the terms and conditions described herein.
A
G R E E M E N T
In
consideration of the mutual promises contained herein and intending to be
legally bound, the parties agree as follows:
ARTICLE
1
PURCHASE AND
SALE OF ASSETS
|
1.1
|
Transfer
of Assets. Subject
to the terms and conditions of this Agreement, on the Closing Date
(as
defined herein), Seller will sell to Buyer, and Buyer will purchase
from
Seller, all of Seller's right, title and interest in and to all of
the
following assets, which are used in or are related to the Business
(the
"Assets"). The Assets include only the
following:
|
|
1.1.1
|
Inventory. All
inventory of the Products at all locations world wide, including
inventory
at third party logistics sites (including finished goods, work-in-process
and raw materials and returned Product; collectively, the "Inventory"),
a
list of which as of July 25, 2006 is set forth in
Schedule 1.1.1;
|
|
1.1.2
|
Intellectual
Property.
Seller’s
interest in the following assets listed in Schedule 1.1.2, as well
as the
good will associated therewith, in each case as used solely in the
Business (collectively, the “Intellectual Property”): patents, trademarks
and trade names, trademark and trade name registrations, service
marks and
service xxxx registrations, copyrights and copyright registrations,
the
applications therefor and the licenses with respect thereto, and
the
manufacturing formulae, specifications, processes, artwork, proprietary
molds and similar proprietary equipment but specifically excluding
all
“Advanced Medical Optics” and “AMO” marks, including any and all
trademarks or service marks, trade names, slogans or other like property
which includes the name “Advanced Medical Optics” or “AMO”, or any
derivative thereof and Seller's logo or any derivative
thereof;
|
|
1.1.3
|
Sales,
Marketing and Promotion Materials.
All
of Seller's historical and current sales data material and information,
customer lists, wholesaler lists, distribution lists, supplier lists,
mailing lists, catalogues, brochures, sales literature, promotional
marketing material, advertising material and other selling material
pertaining to the Products, including without limitation all market
research, competitive intelligence and promotional material, in each
case
solely related to the Business;
|
|
1.1.4
|
Books
and Records.
All
books and records and all files, documents, papers and agreements
(including, but not limited to, those contained in computerized storage
media) pertaining to the Assets, the Assumed Liabilities or otherwise
to
the Business (other than Seller’s corporate books and records), subject to
Seller retaining copies of the same, if and as it so
chooses;
|
|
1.1.5
|
Assigned
Contracts.
All
rights of Seller under all contracts, guarantees and warranties from
third
parties pertaining exclusively to the Products and listed on Schedule
1.1.5, subject to the approval of the other parties to such contracts
(the
"Assigned Contracts"); and
|
|
1.1.6
|
Product
Registrations.
All
Product Registrations (and applications therefor) exclusively related
to
the Business and listed on Schedule 1.1.6 if and to the extent
transferable. “Product Registrations” means all licenses, permits,
certificates and other authorizations and approvals required to market
any
Product as conducted as of the date of this Agreement under the applicable
laws of any governmental authority (supranational, national, federal,
state, local, municipal, judicial, legislative, executive or regulatory)
in the countries in which Products are sold.
|
The
Assets shall include all Inventory that is acquired by Seller between July
25,
2006 and the Closing Date, and shall exclude any Inventory that is disposed
of,
sold or consumed between July 25, 2006 and the Closing Date in the ordinary
course of business. Buyer shall arrange for transfer of all tangible assets,
at
Buyer’s own expense, within sixty (60) days of execution of this Agreement, and
shall bear all third party costs incurred by Seller in connection with Seller’s
assistance provided pursuant to Article 6 of this Agreement.
ARTICLE
2
CLOSING/PURCHASE
PRICE/
ASSUMPTION
OF LIABILITIES
|
2.1
|
The
Closing.
The
Closing will take place at the offices of the Seller, at 10:00 a.m.
Pacific Time on August 31, 2006, or such later date as the parties
shall
mutually agree to in writing (the “Closing Date”).
|
|
2.2
|
Purchase
Price.
Subject
to the terms and conditions of this Agreement, Buyer agrees to acquire
the
Assets from Seller, and to pay U.S.$3,750,000 in cash (the "Purchase
Price") as follows:
|
|
2.2.1
|
A
cash payment of US$750,000 upon execution hereof (the “Initial Payment”);
and
|
|
2.2.2
|
A
closing payment in the amount of US$3,000,000 (the “Closing Payment”) on
the Closing Date
|
|
2.3
|
Payments
to Seller.
Buyer
shall pay the Initial Payment and the Closing Payment by wire transfer
in
immediately available funds to an account designated by Seller on
the
execution hereof. The Initial Payment shall be retained by Seller
as a
non-refundable deposit unless the Seller was in material breach of
a
representation or warranty set forth in Article 4 of this Agreement
on the
date hereof, as determined by the dispute resolution process set
forth in
Section 9.9 of this Agreement.
|
|
2.4
|
Instruments
of Conveyance and Transfer.
On
the Closing Date, Seller shall execute and deliver or cause to be
delivered to Buyer (a) the Xxxx of Sale in the form attached as
Exhibit B, (b) the Assignment and Assumption Agreement in the form
attached as Exhibit A, and (c) such other documents as may be reasonably
requested by Buyer in order to carry out the transactions contemplated
by
this Agreement.
|
|
2.5
|
Assumption
of Certain Liabilities.
On
the Closing Date, Buyer shall execute and deliver to Seller the Assignment
and Assumption Agreement, pursuant to which, Buyer shall assume and
agree
to pay, perform and discharge when due, the liabilities and obligations
of
Seller arising out of the Business as follows: (the “Assumed
Liabilities”):
|
|
2.5.1
|
Contracts. Liabilities
or obligations of Seller which arise after the Closing Date under
the
terms of the Assigned Contracts;
and
|
|
2.5.2
|
Liabilities
Post-Closing.
All liabilities or obligations for Losses (as defined below) related
to
the Assets that are not Retained Liabilities (as defined
below).
|
|
2.6
|
Conditions
of Closing. The
respective obligations of the Buyer and the Seller to consummate
the
transactions contemplated by this Agreement are subject to the condition
that no government order or law makes illegal or enjoins or prevents
the
consummation of the transactions contemplated by this Agreement.
In
addition, the obligation of the Buyer to consummate the transactions
contemplated by this Agreement is subject to the conditions that
(a) the
Seller shall have performed in all material respects its agreements
and
obligation contained in this Agreement required to be performed by
it at
or before the Closing Date, and (b) the representations and warranties
of
the Seller set forth in Article 4 of this Agreement shall have been
true
and correct in all material respects when made and shall be true
and
correct in all material respects as of the Closing Date, as if made
on the
Closing Date, except for changes contemplated or permitted by this
Agreement and those representations and warranties that address matters
as
of a particular date, which need be true in all material respects
only as
of such date. The obligation of the Seller to consummate the transactions
contemplated by this Agreement is subject to the conditions that
(x) the
Seller shall have performed in all material respects its agreements
and
obligations contained in this Agreement required to be performed
by it at
or before the Closing Date and (y) the representations and warranties
of
the Seller set forth in Article 5 of this Agreement shall have been
true
and correct in all material respects as of the Closing Date, as if
made on
the Closing Date, except for changes contemplated or permitted by
this
Agreement and those representations and warranties that address matters
as
of a particular date, which need be true in all material respects
only as
of such date. At the Closing Date, the parties shall exchange
certificates, signed by a senior officer of each entity, certifying
as to
the fulfillment of the foregoing
conditions.
|
ARTICLE
3
TRADEMARK
LICENSE
|
3.1
|
License.
Subject
to the terms and conditions of this Agreement, Buyer licenses to
Seller as
of the Closing Date the non-exclusive, worldwide, perpetual,
sublicensable, fully paid-up, royalty-free right to use the LENS
PLUS
trademark on saline solutions and the HYDROCARE
trademark on solutions and tablets for disinfecting, cleaning, wetting,
storing and/or rinsing contact lenses. Collectively, LENS PLUS and
HYDROCARE
shall be referred to as the “Licensed Marks”, and all of the
aforementioned goods shall be referred to as the “Licensed
Products”.
|
|
3.2
|
Product
Quality of Licensed Products.
Seller
agrees that after the Closing Date the quality of all Licensed Products
in
connection with the Licensed Marks shall conform to applicable minimum
standards. Buyer agrees that the current quality of all Licensed
Products
is exceptional, and shall place no requirements on Seller unless
the
quality of the Licensed Products falls substantially below the present
quality.
|
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
represents, warrants and agrees as follows:
|
4.1
|
Organization,
Corporate Power and Authority.
Seller
is duly organized and validly existing under the laws of the State
of
Delaware.
|
|
4.2
|
Authorization
of Agreements.
The
execution, delivery and performance by Seller of this Agreement have
been
duly authorized by all necessary corporate action by Seller. This
Agreement has been duly executed and delivered by Seller and constitutes
the legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its
terms.
|
|
4.3
|
Effect
of Agreement.
The
execution, delivery and performance by Seller of this Agreement will
not
violate the charter documents or bylaws of Seller or any material
indenture, material agreement or other material instrument to which
Seller
is a party, or by which Seller or the Assets are bound, or conflict
with,
result in a breach of or constitute (with due notice or lapse of
time or
both) a default under, any such indenture, agreement or other
instrument.
|
|
4.4
|
Condition
of Property.
Except
as set forth in Schedule 4.4, Seller has good and marketable title
to all
of the Assets, except for liens for taxes not yet due and imperfections
in
title, if any, not material in
amount.
|
|
4.5
|
No
Brokers or Finders.
No
agent, broker, finder, or investment or commercial banker, or other
Person
or firm engaged by or acting on behalf of Seller or any of its affiliates
in connection with the negotiation, execution or performance of this
Agreement, is or will be entitled to any brokerage or finder's or
similar
fee or other commission as a result of this
Agreement.
|
|
4.6
|
Intellectual
Property.
Except
as set forth in Schedule 4.4, to the best of the Seller’s knowledge,
Seller is the beneficial owner of or has a valid and subsisting license
to
use the Intellectual Property, free and clear of all encumbrances,
and is
not a party to or bound by any contract or other obligation whatsoever
that limits or impairs its ability to sell, transfer, assign or convey
the
Intellectual Property. The Seller is not aware of any third party
claim
regarding the validity or enforceability of any of the Intellectual
Property. The Seller is not aware of any third party claim that the
sale
of the Products has infringed the intellectual property rights of
any
other person
|
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
represents, warrants and agrees as follows:
|
5.1
|
Organization,
Corporate Power and Authority.
Buyer
is duly organized and validly existing under the laws of the State
of
Nevada.
|
|
5.2
|
Authorization
of Agreement.
The
execution, delivery and performance by Buyer of this Agreement have
been
duly authorized by all necessary corporate action by Buyer. This
Agreement
has been duly executed and delivered by Buyer and constitutes the
legal,
valid and binding obligation of Buyer, enforceable against Buyer
in
accordance with its terms.
|
|
5.3
|
Effect
of Agreement.
The
execution, delivery and performance by Buyer of this Agreement, will
not
violate the charter documents or bylaws of Buyer or any material
indenture, material agreement or other material instrument to which
Buyer
is a party, or by which Buyer or its properties or assets are bound,
or
conflict with, result in a breach of or constitute (with due notice
or
lapse of time or both) a default under, any such indenture, agreement
or
other instrument.
|
|
5.4
|
No
Brokers or Finders.
No
agent, broker, finder or investment or commer-cial banker, or other
Person
or firm engaged by or acting on behalf of Buyer or its affiliates
in
connection with the negotiation, execution or performance of this
Agreement is or will be entitled to any broker's or finder's or similar
fees or other commissions as a result of this
Agreement.
|
|
5.5
|
Transfer
of Intellectual Property.
Buyer agrees to take all necessary actions, at Buyer’s sole expense, to
transfer the legal ownership of the Intellectual Property from Seller
to
Buyer. Seller agrees to provide reasonable assistance to Buyer to
effect
such transfers.
|
|
5.6
|
Condition
of the Business.
Buyer
is purchasing the Assets based solely on the results of its inspections
and investigations and the representations or warranties of Seller
expressly set forth in this Agreement. In light of these inspections
and
investigations and the representations and warranties made to Buyer
by
Seller in Article 4 hereof, Buyer is relinquishing any right to any
claim
based on any representations and warranties other than those specifically
set forth in Article 4 hereof. Any claims Buyer may have for breach
of
representation or warranty shall be based solely on the representations
and warranties of Seller set forth in Article 4 hereof. ALL WARRANTIES
OF
HABITABILITY, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE,
AND
ALL OTHER WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE (OR
SIMILAR
FOREIGN LAWS), ARE HEREBY WAIVED BY PURCHASER.
|
ARTICLE
6
INDEMNIFICATION
|
6.1
|
Obligations
of Buyer.
Buyer
agrees to indemnify, defend and hold harmless Seller and its directors,
officers, employees, affiliates, agents and assigns from and against
any
and all Losses, directly or indirectly, as a result of, or based
upon or
arising from:
|
|
6.1.1
|
Any
breach of any representation, warranty or covenant of Buyer made
in this
Agreement; and
|
6.1.2 The
Assumed Liabilities.
|
6.2
|
Obligations
of Seller.
Seller
agrees to indemnify, defend and hold harmless Buyer and its directors,
officers, employees, affiliates, agents and assigns from and against
all
Losses directly or indirectly, as a result of, or based upon or arising
from:
|
|
6.2.1
|
Any
breach of any representation, warranty or covenant of Seller made
in this
Agreement;
|
|
6.2.2
|
Any
Losses related to returns of product sold by Seller and bearing Seller’s
label, and any Losses related to the Business or the Assets that
are
caused by any reckless or malicious act or omission of Seller prior
to the
Closing Date (collectively, the “Retained
Liabilities”).
|
|
6.3
|
Procedures.
The
parties agree that the person seeking indemnification (the “Indemnitee”)
shall only be entitled to such indemnification if:
|
|
6.3.1
|
The
Indemnitee had, at its own expense, promptly given the person from
whom
indemnification is sought (the “Indemnitor”) written notice of such claims
upon their filing or creation; and
|
|
6.3.2
|
The
Indemnitor had been granted the right to take control of the settlement
and defense of such claims with counsel reasonably acceptable to
the
Indemnitee in exchange for the Indemnitor’s written agreement to accept
the defense and all liability for the claim without reservation.
|
The
Indemnitee shall at all times reasonably cooperate in the settlement and defense
of all claims and shall make available all records, materials and other relevant
matter reasonably requested by the Indemnitor in connection with such claims.
No
party shall have the right to settle any claims in a manner that materially
diminishes the rights or interests of the other without that party’s prior
written consent, which shall not be unreasonably withheld or delayed. The
Indemnitor shall not be liable for any settlement made without its prior written
consent. * * *.
CONFIDENTIAL
TREATMENT
10
|
6.4
|
Limits.
*
*
*.
|
|
6.5
|
Definition
of Loss. "Loss"
means any claims, actions, causes of action, judgments, awards, losses,
costs, and damages, and all debt, liabilities and obligations, whether
accrued or fixed, known or unknown, absolute or contingent, matured
or
unmatured or determined or determinable. NOTWITHSTANDING ANYTHING
TO THE
CONTRARY CONTAINED HEREIN, NO PARTY TO THIS AGREEMENT SHALL BE LIABLE
TO
OR OTHERWISE RESPONSIBLE TO ANY OTHER PARTY HERETO OR ANY AFFILIATE
OF ANY
OTHER PARTY HERETO FOR CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES
OR
FOR DIMINUTION IN VALUE OR LOST PROFITS THAT ARISE OUT OF OR RELATE
TO
THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF OR ANY LIABILITY
RETAINED OR ASSUMED HEREUNDER.
|
ARTICLE
7
TRANSITION
ARRANGEMENTS
|
7.1
|
Transition
Arrangements. *
*
*
|
|
7.2
|
Analytical
and Stability Testing.
*
*
*
|
|
7.3
|
Technology
Transfer. *
*
*
|
ARTICLE
8
RIGHT
OF FIRST REFUSAL
|
8.1
|
Right
of First Refusal.
*
* *
|
ARTICLE
9
GENERAL
|
9.1
|
Amendments; Waivers.
This
Agreement and any schedule or exhibit attached hereto may be amended
only
by agreement in writing of all parties. No waiver of any provision
nor
consent to any exception to the terms of this Agreement shall be
effective
unless in writing and signed by the party to be bound and then only
to the
specific purpose, extent and instance so
provided.
|
CONFIDENTIAL
TREATMENT
11
|
9.2
|
Governing
Law.
Notwithstanding its place of execution or performance, this Agreement
shall be governed by and construed in accordance with the laws of
the
State of California, irrespective of its laws regarding choice or
conflict
of laws.
|
|
9.3
|
No
Assignment.
Neither
this Agreement nor any rights or obliga-tions under it are assignable,
provided that either party may assign the Agreement or any rights
or
obligations hereunder to a parent company or wholly-owned subsidiary
without any consent or approval of the other
party.
|
|
9.4
|
Headings.
The
descriptive headings of the Articles, Sections and subsections of
this
Agreement are for convenience only and do not constitute a part of
this
Agreement.
|
|
9.5
|
Counterparts.
This
Agreement and any amendment hereto or any other agreement (or docu-ment)
delivered pursuant hereto may be executed in one or more counterparts
and
by different parties in separate counterparts. All of such counterparts
shall constitute one and the same agreement (or other document) and
shall
become effective (unless otherwise provided therein) when one or
more
counterparts have been signed by each party and delivered to the
other
party.
|
|
9.6
|
Publicity
and Reports.
Seller
and Buyer shall coordinate all publicity relating to the transactions
contemplated by this Agreement and no party shall issue any press
release,
publicity statement or other public notice relating to this Agreement,
or
the transactions contemplated by this Agreement, without obtaining
the
prior consent of the other party. The parties agree to issue a mutually
agreed press release announcing the transaction hereunder upon execution
of this agreement to satisfy public filing requirements of
Buyer.
|
|
9.7
|
Integration.
This
Agreement is both a final expression of the parties’ agreement and a
complete and exclusive statement with respect to all of its terms.
The
Exhibits and Schedules referred to in this Agreement are incorporated
herein and made a part of this Agreement by this reference. This
Agreement
supersedes all prior and contemporaneous agreements and communications,
whether oral, written or otherwise, concerning any and all matters
contained herein.
|
|
9.8
|
Notices.
Any
notice to be given under this Agreement must be in writing and delivered
either in person, by any method of mail (postage prepaid) requiring
return
receipt, or by overnight courier, to the party to be notified at
its
address(es) given below, or at any address such party has previously
designated by prior written notice to the other. Notice shall be
presumptively deemed to be sufficiently given for all purposes upon
the
earlier of: (a) the date of actual receipt; (b) if mailed, three
calendar
days after the date of postmark; or (c) if delivered by overnight
courier,
the next business day the overnight courier regularly makes deliveries.
|
CONFIDENTIAL
TREATMENT
12
If
to
Buyer, notices must be addressed to:
Inyx,
Inc.
000
Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Dr. Xxxx Xxxxxxx
If
to
Seller, notices must be addressed to:
Advanced
Medical Optics, Inc..
0000
X.
Xx. Xxxxxx
Xxxxx
Xxx, XX 00000.
Attention:
General Counsel
|
9.9
|
Dispute
Resolution.
Unless resolved by the parties within 60 days, any controversy or
claim
(whether such claim sounds in contract, tort, or otherwise) arising
out of
or relating to this Agreement, or the breach thereof, shall be settled
by
final and binding arbitration before an arbitrator at JAMS/Endispute,
located in Orange County, California, and such arbitration shall
be
conducted pursuant to then current rules for arbitration of commercial
disputes at JAMS/Endispute. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
In no
event shall the arbitrator have any right or power to award punitive
or
exemplary damages
|
|
9.10
|
Non-Competition.
Seller shall not anywhere in the world launch a new product with
the same
specifications as any of the Products acquired by Buyer for a * *
* from
the Closing Date; provided, however, that it shall not be deemed
to be a
violation of this Section 9.10 for the Seller or any of its subsidiaries
to invest in, own an interest in, or acquire all or a majority of
the
stock or assets of, or merge into or be acquired by any party which
is not
engaged primarily in the sale of products having the same specifications
as the Products.
|
|
9.11
|
Non-Solicitation. For
a period of * * * and after the Closing Date, the Buyer shall not,
and
shall cause its subsidiaries not to, directly or indirectly, induce
or
attempt to induce any officers, employees, representatives or agents
of
the Seller or its subsidiaries to leave the employ of the Seller
for
employment with the Buyer or its subsidiaries. Similarly, for a
period of
two years from and after the Closing Date, the Seller shall not,
and shall
cause its subsidiaries not to, directly indirectly, induce or attempt
to
induce any officers, employees, representatives or agents of the
Buyer or
its subsidiaries to leave the employ of the Buyer for employment
with the
Seller or its subsidiaries. Nothing in this Section 9.11 shall
restrict or
preclude the Buyer or the Seller or any of their subsidiaries from making
generalized searches for employees by the use of advertisements
in the
media (including trade media) or by engaging search firms to engage
in
searches that are not targeted or focused on the employees employed
by the
other party.
|
CONFIDENTIAL
TREATMENT
13
|
9.12
|
Tax
Matters.
Buyer agrees to prepare or cause to be prepared the final purchase
price
allocation among the Assets and to prepare Internal Revenue Service
Form
8594 to be provided to Seller by the end of March
2007.
|
CONFIDENTIAL
TREATMENT
14
IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be executed by its duly
authorized officers as of the day and year first above written.
BUYER
INYX,
INC.
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President
SELLER
ADVANCED
MEDICAL OPTICS, INC.
By:
/s/ Xxxxx X.
Xxxxx
Name:
Xxxxx
X.
Xxxxx
Title: Chairman, President and CEO
Title: Chairman, President and CEO
