ASSET PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") effective as of January 31, 2001 by
and between Applied Biometrics, Inc., a Minnesota corporation (the "Seller"),
and Transonic Systems, Inc., a New York corporation (the "Purchaser").
WHEREAS, the Seller desires to sell to the Purchaser selected patents,
patent applications and know-how relating to certain ultrasonic sensor
technologies (the "Technology"), and the Purchaser desires to purchase such
assets from Seller, pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties agree as follows:
1. SALE AND PURCHASE OF ASSETS.
1.1. Sale and Purchase of Assets. Subject to the terms and
conditions of this Agreement, the Seller hereby sells,
conveys, assigns, transfers and delivers to the Purchaser, and
the Purchaser hereby purchases the following assets related to
the Technology (which are collectively referred to as the
"Assets"):
(a) All right, title and interest in and to the United
States Letters Patent and pending patent applications
listed on Exhibit A attached to this Agreement and
any continuations, divisions, substitutes and foreign
patents and/or applications of such patents which may
be filed;
(b) All right, title and interest in and to foreign
patents and patent applications listed on Exhibit B
attached to this Agreement; and
(c) All right, title and interest in and to all product
designs and know-how as generally outlined on Exhibit
C attached to this Agreement.
1.2. Excluded Assets. The Seller and the Purchaser acknowledge and
agree that the only assets of the Seller to be sold are the
Assets specifically identified in Section 1.1 and that no
other assets of the Seller are being sold under this
Agreement.
1.3. Purchase Price; Payment. The Purchaser shall pay to the
Seller, by certified check or federal wire transfer as of the
date hereof, immediately available funds of Twenty-Three
Thousand Dollars ($23,000) for the purchase of the Assets (the
"Purchase Price"), and the Seller acknowledges receipt of such
amount by execution and delivery of this Agreement.
1.4. Instruments of Transfer to the Purchaser The Seller will
deliver to the Purchaser such bills of sale, assignments and
other good and sufficient instruments of conveyance and
transfer, in form and substance reasonably satisfactory to the
Purchaser and its counsel, as shall be effective to vest in
the Purchaser valid legal title to the Assets. As to the
Know-How in Exhibit C, the Seller will deliver to the
Purchaser within five (5) days of the execution of this
Agreement all
documents listed in the Exhibit, and any other documents
necessary to convey the Know-How as reasonably satisfactory to
the Purchaser and its counsel.
2. NO ASSUMPTION OF OBLIGATIONS. The Purchaser is not assuming any
obligations or liabilities of the Seller as of the date of this
Agreement relating to the Assets or the Technology, and all obligations
and liabilities relating to events occurring before the date hereof
with respect to the Assets or the Technology shall be the
responsibility of the Seller.
3. REPRESENTATIONS AND WARRANTIES. As of the date of this Agreement, the
Seller represents, to the best of its knowledge, as follows:
3.1. The Seller has clear title to the Assets, and is free to
convey them to Purchaser.
3.2. Seller has not encumbered the Assets, and there are no
security interests or liens in the Assets.
3.3. Except as set forth on Exhibit D, all maintenance fees,
annuities or other fees are paid on those Assets which are
required to have such fees paid to maintain them in force.
3.4. As to any of the Assets which are listed in Exhibits A and B
as pending patent applications, (i) the applications are
currently pending in their respective patent offices, have not
expired, lapsed or been abandoned, and are not under final
rejection or appeal (or the equivalent in foreign countries);
and (ii) no actions are pending which will require reply.
3.5. No protest, opposition, reissue or reexamination proceeding,
or any equivalent of such actions against a patent or
application in any country, whatever named, is currently
pending or threatened against any of the Assets.
3.6. The Assets are being sold to the Purchaser AS IS, WHERE IS.
Other than the foregoing, the Seller makes no representations
or warranties of any kind whatsoever, including without
limitation, any implied warranties of Merchantability or
Fitness for a Particular Purpose.
4. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE SELLER, OR
ANY AFFILIATE OF THE SELLER, BE LIABLE TO THE PURCHASER OR ANY OTHER
PARTY FOR AN AMOUNT IN EXCESS OF THE PURCHASE PRICE FOR DIRECT,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
ARISING FROM OR RELATED TO THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICPATED PROFITS OR LOST BUSINESS, EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAAGES.
2
5. MISCELLANEOUS.
5.1. Expenses. Each of the parties hereto shall bear its own costs,
fees and expenses in connection with the negotiation,
preparation, execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby.
5.2. Further Assurances. From and after the date of this Agreement,
upon the reasonable request of the Purchaser, the Seller shall
execute, acknowledge and deliver all such assurances, deeds,
assignments, transfers, conveyances, powers of attorney and
other instruments and documents reasonably necessary to sell,
assign, transfer, convey and deliver the Assets to the
Purchaser, to vest the Purchaser with valid legal title to the
Assets and to enable the Purchaser to protect its right, title
and interest in and enjoyment of all of the Assets.
5.3. Notices. Any notice, demand, request or other communication
under this Agreement shall be in writing and shall be deemed
to have been given on the date of service if personally served
or on the fifth day after mailing if mailed by registered or
certified mail, return receipt requested, addressed as follows
(or to such other address of which either of the parties
hereto shall have notified the other party hereto in
accordance herewith):
To the Purchaser: 00 Xxxxx Xxxx Xxxx
Xxxxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxxxx
To the Seller: Manchester Companies, Inc.
IDS Center
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx
5.4. Assignment and Successors. This Agreement may not be assigned
by either party without the prior written consent of the other
party.
5.5. Binding Effect. Subject to Section 6.4, this Agreement shall
be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto.
5.6. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Minnesota.
5.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and
all of which shall constitute one agreement.
5.8. Amendment or Modification. This Agreement may not be modified
or amended except by a written instrument duly executed by
each of the parties hereto.
3
5.9. Entire Agreement. This Agreement, including the Exhibits
attached hereto, sets forth the entire agreement of the
parties with respect to the subject matter hereof, all prior
and contemporaneous oral and written discussions and
understandings are superseded.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
PURCHASER: SELLER:
TRANSONIC SYSTEMS, INC. APPLIED BIOMETRICS, INC.
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------ ------------------------------------
By: Xxxxx Xxxxxxxxx By: Xxxxx X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Its: President Its: Acting Chief Executive Officer
-------------------------------- --------------------------------
4
EXHIBIT A
US Patent Application No. 09/432,347 filed November 2, 1999 entitled "Encasement
and Transducer Shuttle Assembly For Removable Implanted Device"
US Patent No. 5,205,292 issued April 27, 1993 entitled "Removable Implanted
Device"
US Patent No. 5,284,146 issued February 8, 1994 entitled "Removable Implanted
Device"
A-1
EXHIBIT B
Canadian Patent Application No. 2,103,237 filed June 2, 1992 entitled "Removable
Implantable Device"
Japanese Patent Application No. HEI 5-500587 filed June 2, 1992 entitled
"Removable Implantable Device"
United Kingdom Patent No. 0 602 048 issued March 22, 2000 entitled "Removable
Implantable Device"
German Patent No. 692 30 826.1 issued March 22, 2000 entitled "Removable
Implantable Device"
France Patent No. 0 602 048 issued March 22, 2000 entitled "Removable
Implantable Device"
B-1
EXHIBIT C
Applied Biometrics Product Design and Know-How includes all information related
to the design, manufacturing, testing, and use of ultrasonic products,
including:
>> Ultrasonic Sensor Designs (including sensor configuration drawings and
layouts, sensor material guidelines, electrical connection configurations
and sensor backing guidelines).
>> Sensor Packaging and Housing Designs (including sensor housing materials
selections, housing configuration drawings, and housing manufacturing
processes).
>> Support Electronics Designs (including all circuit layouts, electronic
schematic diagrams, signal processing logic, computational logic, and
display circuitry).
>> Ultrasonic Sensor Handling and Manufacturing Methods.
>> Manufacturing Facility Design and Layout.
>> Blood Flow Sensing Application Considerations
>> Electrical Connection Methods (including cabling designs, and optimum
connector configurations).
>> Data Processing Methodologies and Logic
>> Testing Procedures.
>> Test Equipment Design.
>> Product Packaging Design.
>> Medical Device Handling Know-How.
In addition to the above listed and reference know-how assets, Applied
Biometrics also has valuable information related to the sales and marketing of
medical devices, which it will transfer to Transonic in writing within five (5)
days of the execution of this Agreement.
C-1
EXHIBIT D
The 7 1/2 year maintenance fee has not yet been paid on patent no. 5,205,292.
This fee can be paid with a surcharge until March 27, 2001.
A registration fee of approximately $675.00 is currently due to register
Japanese Patent application Hei 5-500587. If this fee is not paid, the
application will be abandoned. The due date for instructing the foreign
associate is December 25, 2000.
