|
|
|
|
Document Preview Asset Purchase Agreement |
||||
|
|
||||
|
Click "Add to Cart" button to purchase document. |
||||
|
|
||||
|
Title: |
Asset Purchase Agreement |
|||
|
Entities: |
||||
|
Date: |
2005 |
|||
|
Size: |
Preview shows 19KB of 135KB total |
|||
|
Price: |
$42 |
|||
|
ID: |
#1177919 |
|||
|
|
||||
|
||||
|
|
||||
|
Start of Preview |
||||
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of the 26th day of April, 2005, by and between IRIS INTERNATIONAL, INC.,
a Delaware corporation ("PARENT"), and Blitz 05-047 GmbH (future name: IRIS
DEUTSCHLAND GmbH), a company formed under the laws of Germany and an indirectly
wholly-owned subsidiary of Parent ("IRIS"), on the one hand, and QUIDEL
CORPORATION, a Delaware corporation ("QUIDEL"), and QUIDEL DEUTSCHLAND GmbH, a
company formed under the laws of Germany and wholly-owned subsidiary of Quidel
(the "COMPANY"), on the other.
R E C I T A L S
A. Quidel or the Company are the owners of the Assets (as defined
below), which Assets are used exclusively in connection with the urinalysis test
strip business of the Company.
B. On the terms and subject to the conditions set forth in this
Agreement, Quidel and the Company desire to sell to IRIS, and IRIS desires to
purchase from Quidel and the Company, the Assets.
A G R E E M E N T
NOW, THEREFORE, with reference to the foregoing facts, the parties
agree as follows:
1. DEFINITIONS.
(a) CERTAIN DEFINITIONS. All terms defined in this
Agreement shall have the defined meanings when used in this Agreement or in any
agreement, note, certificate, report or other document made or delivered
pursuant to this Agreement, unless otherwise defined or the context otherwise
requires. The following terms shall have the following meanings:
"ACTION" means any litigation, action, suit, proceeding,
arbitration or claim before any court or Governmental Authority, or
investigation by any Governmental Authority.
"AFFILIATE" means, with respect to any specified Person, (i)
any other Person who, directly or indirectly, owns or controls, is under common
ownership or control with, or is owned or controlled by, such specified Person,
(ii) any other Person who is a director, partner or trustee of the specified
Person or a Person described in clause (i) of this definition, or (iii) any
Person of which the specified Person and/or any one or more of the Persons
specified in clause (i) or (ii) of this definition, individually or in the
aggregate, beneficially own 10% or more of any class of voting securities or
otherwise have a substantial beneficial interest.
"ASSETS" means those assets of Quidel or the Company set forth
on SCHEDULE 1(a) attached hereto and to be transferred herewith.
"BEST KNOWLEDGE" with respect to any Person means and includes
(i) actual knowledge of the Person, including, the actual knowledge of any of
the officers or directors of
<PAGE>
such Person, and (ii) that knowledge which a prudent businessperson could have
obtained in the management of his business after making due inquiry, and after
exercising due diligence, with respect thereto.
"BUSINESS CONDITION" of any Person means the financial
condition, results of operations, business, properties or prospects of such
Person.
"CHARTER DOCUMENTS" means (i) with respect to the Company, the
Documents of Incorporation (GRUNDUNGSURKUNDE) and the Articles (SATZUNG) and the
Bylaws of the management board (GESCHAFTSORDNUNG) if any, or any similar
document, and (ii) with respect to Quidel, Quidel's certificate of incorporation
and bylaws.
"COMPANY IP" means all patents, patent applications,
trademarks and registered copyrights that are included within the Assets as set
forth on Schedule 6(i) hereto.
"CONTRACT" means any written or oral note, bond, debenture,
mortgage, license, agreement, commitment, contract or understanding.
"EXPLOIT" means manufacture, advertise, license, market,
merchandise, promote, publicize, sell, use, market, supply or distribute, and
"EXPLOITATION" and "EXPLOITED" shall have a correlative meaning.
"GAAP" means accounting principles generally accepted in the
United States of America.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"IP" means, under the laws of any jurisdiction in the world,
any and all: (a) patents (including design patents, industrial designs and
utility models) and patent applications (including docketed patent disclosures
awaiting filing, reissues, divisions, continuations-in-part and extensions),
patent disclosures awaiting filing determination, inventions and improvements
thereto; (b) trademarks, service marks, trade names, trade dress, logos,
business and product names, slogans, and registrations and applications for
registration thereof; (c) copyrights (including software) and registrations
thereof; (d) inventions, processes, designs, formulae, trade secrets, know-how,
industrial models, confidential and technical information, manufacturing,
engineering and technical drawings, product specifications and confidential
business information; (e) intellectual property rights similar to any of the
foregoing; and (f) copies and tangible embodiments thereof (in whatever form or
medium, including electronic media).
"LATERAL FLOW TECHNOLOGY LAWSUIT" means that certain action
filed on February 4, 2004 by Inverness Medical Switzerland GmbH and Preymed in
the District Court in Dusseldorf, Germany, which names Quidel, the Company and
Quidel's distributor, Progen Biotechnik GmbH ("PROGEN"), as defendants. The
lawsuit alleges that Quidel, the Company and Progen are infringing two
Inverness-owned European patents, EP 0 291 194 and EP 0 560 411, and is directed
at Quidel's lateral flow test devices.
- 2 -
<PAGE>
"LAW" means any German or applicable foreign statute, law,
rule, regulation, ordinance, order, code, policy or rule of common law, in
effect as of the date hereof and as amended, and any judicial or administrative
interpretation thereof by a Governmental Authority or otherwise, including any
judicial or administrative order, consent, decree or judgment.
"LIEN" means any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority, or other security agreement or
preferential arrangement, charge, or encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, provided, however, that a Lien shall not include
any limitation on the right to Exploit any Company IP.
"MATERIAL CONTRACTS" means any Contract included within the
Assets to be transferred to, and assumed by, IRIS hereunder.
"ORDER" means any order, judgment, injunction, award, decree,
writ, or similar action of any Governmental Authority.
"PERSON" means an individual or a partnership, corporation,
trust, association, limited liability company, Governmental Authority or other
entity.
"SUBSIDIARY" of any Person means any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are owned directly or indirectly by such Person.
"TAX" or "TAXES" mean all taxes, charges, fees, imposts,
levies or other assessments, including, without limitation, all net income,
gross receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp, occupation, and
property taxes, customs duties, fees, assessments and charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority (domestic or foreign) and
shall include any transferee liability in respect of Taxes.
"TAX RETURN" or "TAX RETURNS" mean all returns, declarations,
reports, estimates, information returns and statements required to be filed in
respect of any Taxes.
"TRANSFER" means sell, assign, transfer, pledge, grant a
security interest in, or otherwise dispose of, with or without consideration,
and "TRANSFERRED" shall have a correlative meaning.
- 3 -
<PAGE>
(b) OTHER DEFINITIONS. The following terms shall have the
meanings given the terms in the Sections set forth below:
TERM SECTION
---- -------
Arbitrator........................................................... 15(n)
Assumed Liabilities.................................................. 4
Claim................................................................ 12(e)
Claim Notice......................................................... 12(e)
Closing.............................................................. 5(a)
Closing Date......................................................... 5(a)
Company Plans........................................................ 6(j)
Damages.............................................................. 12(b)
Direct Claim......................................................... 12(e)
Disclosure Letter.................................................... 6
Excluded Assets 2(b)
Indemnified Party.................................................... 12(e)
Indemnifying Party................................................... 12(e)
Inventory............................................................ 3(a)
Jurisdictions........................................................ 6(i)(ii)
IRIS Indemnified Party............................................... 12(b)
IRIS Indemnified Parties............................................. 12(b)
Notices.............................................................. 15(a)
Provider............................................................. 15(n)
Purchase Price....................................................... 3(a)
Seller Indemnified Parties........................................... 12(c)
Seller Indemnified Party............................................. 12(c)
Stock Option and Pension Benefits.................................... 6(j)
Target Inventory Value............................................... 3(a)
Third Party Claim.................................................... 12(e)
Trademarks........................................................... 6(i)(ii)
2. SALE AND PURCHASE OF THE ASSETS.
(a) At the Closing and subject to the terms and
conditions herein, each of Quidel and the Company sells and agrees to transfer
and assign to IRIS, and IRIS purchases and agrees to accept from Quidel and the
Company, all of the Assets, for the Purchase Price provided for in Section 3 of
this Agreement.
- 4 -
<PAGE>
(b) Notwithstanding anything expressed or implied to the
contrary herein, the Assets shall not include any other assets of Quidel or the
Company whatsoever (the "EXCLUDED ASSETS"); the Assets shall include only the
specific assets expressly identified in SCHEDULE 1(a). Without limiting the
foregoing, the term Excluded Assets shall include, without limitation, all cash,
cash equivalents, accounts receivable, prepaid taxes, interests in insurance
policies, the use of the Quidel name and other trademarks or tradenames of
Quidel, except as expressly set forth herein. Quidel or the Company, as
applicable, shall retain all right, title and interest in and to the Excluded
Assets, and IRIS shall not assume any obligations relating to the Excluded
Assets, including, without limitation, any obligations relating to any remaining
warranties of any products distributed by Quidel or the Company on or prior to
the Closing Date. Notwithstanding the foregoing, IRIS agrees to provide customer
service and support for urinalysis test strip products distributed prior to the
Closing Date.
3. PURCHASE PRICE.
(a) PURCHASE PRICE. Subject to adjustment as provided in
Section 3(b) below, the purchase price to be paid by IRIS for the Assets (the
"PURCHASE PRICE") shall be US $500,000 provided that the aggregate value of the
inventory included within the Assets (the "INVENTORY") equals or exceeds US
$1,300,000 (the "TARGET INVENTORY VALUE"). Reasonably in advance before Closing,
Quidel and the Company shall inform IRIS in writing about the allocation of the
Purchase Price between Quidel and the Company.
(b) ADJUSTMENT OF PURCHASE PRICE. In the event that, as
of the Closing Date, the actual value of the Inventory is less than the Target
Inventory Value, the Purchase Price shall be adjusted downward, on a
dollar-for-dollar basis, by the amount at which the actual value of the
Inventory is less than the Target Inventory Value. The actual value of the
Inventory shall be determined in accordance with GAAP consistently applied as of
the Closing Date. In the event that IRIS is required at Closing (or at the end
of the month in which the Closing occurs) to pay employee payroll for any period
prior to the Closing Date, IRIS shall pro rate such payroll costs such that IRIS
is responsible for payment for all periods after the Closing Date, and Quidel
and the Company are responsible for payment for all periods prior to and
including the Closing Date, and IRIS may reduce the Purchase Price by any amount
it has paid on Quidel or the Company's behalf at the Closing.
(c) TRANSFER COSTS. If applicable, all transfer, sales
and use Taxes and fees arising from the transfer of the Assets shall be paid by
the party upon whom such Tax or fee is legally assessed, and each party to this
Agreement agrees to pay its portion, prorated as of the Closing Date, of state
and local personal property Taxes related to the Assets. In addition, although
it is the parties understanding that no German value added taxes ("VAT") apply
to the transactions contemplated hereunder, in the event that German VAT should
apply, IRIS agrees to pay German VAT in addition to such portion of the Purchase
Price that applies to the Assets sold and transferred by the Company, and the
Company shall issue a proper invoice to IRIS showing German VAT in this respect.
4. ASSUMPTION OF LIABILITIES FOR ASSETS. As a material part of
the consideration for the purchase and sale of the Assets, IRIS acknowledges and
agrees to assume, perform, pay and discharge (or to cause its Subsidiary
Designee to assume, perform, pay and discharge), subject to
- 5 -
<PAGE>
the terms and conditions herein, only the following liabilities and obligations
of Quidel and the Company (collectively, the "ASSUMED LIABILITIES"):
(a) all liabilities and obligations that arise out of or
relate to the ownership or use of the Assets or the operation of the urinalysis
test strip business after the Closing Date (except as set forth in Section
4(b)), including, without limitation, all liabilities and obligations that arise
after the Closing Date (except as set forth in Section 4(b)) under any Material
Contract and the Company IP; and
(b) all liabilities and obligations of Quidel or the
Company in connection with the employment of the employees of the Company
becoming due after the Closing Date, including, without limitation, any accrued
vacation, bonus, pension, insurance, severance or termination obligations or
benefits (regardless of when such benefits or obligations began accruing,
whether prior to the Closing Date or otherwise), and the parties acknowledge and
agree that the assumption of certain liabilities and obligations by IRIS under
this SECTION 4(b) accrue by operation of applicable law, namely Section 613a of
|
End of Preview |
Home Intelligence Services Subscriptions News About Us