EXHIBIT 10.54
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "AGREEMENT ")dated as of October
12, 2005, is by and between CooperVision International Holding Company, LP.
("XXXXXX"), a United Kingdom limited partnership, and Advanced Refractive
Technologies Inc. ("ART" ), a Delaware corporation.
RECITALS
WHEREAS, ART has entered into a Settlement Agreement with Xxxxxxx
Medizintechnik GmbH ("Xxxxxxx") in connection with the termination of ART as
Xxxxxxx'x exclusive worldwide distributor; and
WHEREAS, Xxxxxx has entered into an agreement to be Xxxxxxx as
Xxxxxxx'x exclusive worldwide distributor; and
WHEREAS, ART retains in inventory certain equipment and supplies
purchased from Xxxxxxx as set forth on EXHIBIT A (the "Assets"); and
WHEREAS, ART desires to sell to Xxxxxx, and Xxxxxx desires to purchase
from ART, the Assets.
NOW, THEREFORE, in consideration of the foregoing, and the
representations and warranties set forth below, the parties hereto agree as
follows:
1. SALE OF THE ASSETS.
(a) In consideration of the payment by Xxxxxx to ART the amount of $
395,732 ART hereby sells, conveys, transfers, grants, assigns and delivers to
Xxxxxx, free and clear of all Encumbrances, all right, title and interest in the
Assets.
(b) On even date herewith, ART will deliver, at ART's expense, all of
the Assets in ART's physical possession to Xxxxxx at 00000 Xxxx Xxxxxxx, #000,
Xxxx Xxxxxx, Xxxxxxxxxx 00000.
2. REPRESENTATIONS OF ART.
(a) ART has all necessary corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated herein to be consummated by ART. This Agreement
has been duly authorized, executed and delivered by ART and is a legal, valid
and binding obligation of ART, enforceable against ART in accordance with its
terms
(b) ART has legal, marketable and valid title to all of the Assets.
None of the Assets is subject to any security interest, pledge, lien, charge,
adverse claim of ownership or use, restriction on transfer or other encumbrance
of any kind or character. All of the Assets are in the good working condition
and repair. As of the date hereof, each Asset is in the location set forth
SE149279 7.6 on Exhibit A, Any Assets currently in the physical possession of a
third party are and will be returnable to Xxxxxx, at Xxxxxx'x request and
without any payment, penalty or right of set off, upon no more than fifteen (15)
days notice to such third party.
3. FURTHER ASSURANCES.
(a) In accordance with the foregoing, ART hereby constitutes and
appoints Xxxxxx as ART's true and lawful attorney, with full power of
substitution, in ART's name and stead, but on behalf and for the benefit of
Xxxxxx to demand and receive any and all of the Assets in accordance with the
foregoing, and to give receipts and releases for and in respect of the same, and
any part thereof, and from time to time to institute and prosecute in ART's
name, or otherwise, for the benefit of Xxxxxx, any and all proceedings at law,
in equity or otherwise, which Xxxxxx, and their respective successors and
assigns, may deem proper for the collection or reduction to possession of any of
the Assets or for the collection" and enforcement of any claim or right of any
kind hereby sold, conveyed, transferred and assigned, or intended so to be, and
to do all acts and things in relation to the Assets which Xxxxxx shall deemed
desirable, ART hereby declaring that the foregoing powers are coupled with an
interest and are and shall be irrevocable by ART or by its dissolution or in any
manner or for any reason whatsoever.
(b) At any time and from time to time after the date hereof, at the
request of Xxxxxx, and without further consideration, ART shall execute and
deliver such other documents, certificates and instruments of sale, transfer,
conveyance, assignment and confirmation, and take such other action, as Xxxxxx
may reasonably request and as may be necessary or desirable in order to more
effectively transfer, convey and assign to Xxxxxx all of the Assets. This
Agreement shall serve as the xxxx of sale of the Assets.
4. [EPILIFT] TRADEMARK. To the extent that ART's [EpiLift] trademark
(the "Trademark") appears on the Assets or on sales and marketing materials
prepared prior to the date hereof, ART hereby grants a royalty-free license to
Xxxxxx to use the Trademark on such property until such removal can be affected
or until such property is used and exhausted, but in no event more than 180 days
after the Closing.
5. RELEASE. ART, acting on its own behalf and on behalf of its
directors and officers, hereby unconditionally releases and discharges Xxxxxx,
and its officers, directors, agents, successors and representatives, from any
and all claims, liabilities, demands, obligations, costs, expenses, actions and
causes of action, of every nature, character and description, known and unknown,
fixed or contingent, other than as to Xxxxxx'x specific obligations under this
Agreement, which ART (or any person claiming through or on behalf of the ART)
now owns or holds, or has at any time heretofore owned or held, against Xxxxxx.
6. WAIVER OF UNKNOWN CLAIMS. The parties hereby waive and relinquish
all rights and benefits, if any, afforded by Section 1542 of the Civil Code of
the State of California. The parties understand that the facts in respect of
which the release made in this instrument is given may hereafter turn out to be
other than or different from the facts in that connection now known or believed
to be true; and the parties hereby accept and assume the risk of the facts
turning out to be different and agree that this release shall be and remain in
all respects effective and not subject to termination or rescission by virtue of
any such difference in facts.
Section 1542 of the Civil Code of the State of California reads as
follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
7. ADVICE; REPRESENTATION. ART acknowledges that it has obtained such
advice, including advice from legal counsel, as he has deemed necessary and
appropriate under the circumstances. ART is aware that under this Agreement it
forgoes certain legal rights, and is willing to forego those rights in exchange
for the settlement consideration described herein.
8. AMENDMENT. This Agreement may be amended, modified or supplemented
only by a written instrument executed by Xxxxxx and ART.
9. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
any choice or conflict of law provision or rule that would cause the application
of the domestic substantive laws of any other jurisdiction
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Xxxxxx and ART have executed this Subscription
Agreement as of the day and year first above written.
ADVANCED REFRACTIVE
TECHNOLOGIES INC.
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X Xxxxxx
Title: President, CEO
COOPERVISION INTERNATIONAL
HOLDING COMPANY, LP
a United Kingdom limited partnership
By: /s/ C Xxxxxxx
-----------------
Name: C Xxxxxxx
Title: Director
SIGNATURE PAGE TO
CVI-ART PURCHASE AGREEMENT
EXHIBIT A
NAME SERIAL NUMBER LOCATION UNIT PRICE PER UNIT TOTAL
Xxxx Xxxxx 00-0000-000 Xxx Xxxx Xxxxxxxxxx, XX I $ 16,800
Xxx Xxxxxxx 00-0000-000 Xxxxxx, Xxxxx 1 $ 16,800
Xxx Xxxxxxxx 00-0000-000 New Orleans, LA 1 $ 16,800
Xxx Xxxx 00-0000-000 Chicago, IL I $816,800
Xxxxx St. Pierre 00-0000-000 Virginia 1 $516,800
Xxxx Xxxx 00-0000-000 Xx. Xxxxxx, XX I $516,800
Xx Xxxx - Xx Xxxxxxxx 00-0000-000 Xxxxxx, Xxxxxxx 1 $516,800
TLC Laser Eye Center 00-0000-000 Xxxxxxxxx, XX 1 $ 16,800
TLC of Tulsa 00-0000-000 Tulsa, OK 1 $ 16,800
Xx Xxxx 00-0000-000 Mass. Eye and Ear Infirmary, Boston, MA 1 $ 16,800
Xx. Xxxxx 00-0000-000 Assil Eye Institute, Santa Monica, CA I $ 16,800
Xx. Xxxx 00-0000-000 Cullen Eye Institute, Houston, TX 1 $ 16,800
Xx.Xxxxxxxxxxx 00-0000-000 Mid Michigan Physicians Group 1 $516,800
Xx. Xxxxxx 00-0000-000 Xxxx Eye Institute, Cleveland, Ohio 1 $16,800
Xx. Xxxxx X'Xxxxx 00-0000-000 Xxxxxx Institute, Baltimore, MD 1 $516,800
In House - Combo unit 00-0000-000 ART, San Clemente, CA 1 $516,800
In House - 00-0000-000 ART, San Clemente, CA 1 $ 16,800
In House - 00-0000-000 ART, San Clemente, CA 1 $ 16,800
Xxxxx Eye 00-0000-000 Philadelphia, Pa 1 $ 16,800
In House Combo Unit TBD ART, San Clemente, CA 1 N/C
Xxxxxx Xxxxxx Eye TBD Florida 1 $516,800
SUBTOTAL. UNITS $336,000
Epi Heads - 1.2 ART, San Clemente, CA $2,428 $ 29,130
Suction Rings - 31 ART, San Clemente, CA $342 $510,602
Metal bands - 21 ART, San Clemente, CA N/C
Tubing -24 boxes ART, San Clemente, CA N/C
Other accessories xxx XXX, Xxx Xxxxxxxx, XX N/C
TOTAL $375,732
