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Document Preview Asset Purchase Agreement |
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Title: |
Asset Purchase Agreement |
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Entities: |
Luminex Corp.; Rules-Based Medicine, Inc.; RBM Acquisition, Inc. |
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Date: |
2002 |
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Size: |
Preview shows 15KB of 89KB total |
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Price: |
$55 |
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ID: |
#279397 |
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ASSET PURCHASE AGREEMENT
BY AND AMONG
RULES-BASED MEDICINE, INC.,
LUMINEX CORPORATION
AND
RBM ACQUISITION, INC.
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE NO.
--------
{S} {C} {C}
ARTICLE 1 PURCHASE AND SALE OF ASSETS...................................1
1.1 Purchase and Sale of Assets.........................................1
1.2 Assumed Liabilities.................................................1
1.3 Purchase Price......................................................1
1.4 The Closing.........................................................2
1.5 Passage of Title at Closing.........................................4
1.6 Allocation of Purchase Price........................................4
1.7 Further Assurances..................................................4
1.8 Third Party Consents................................................5
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER AND LUMINEX..........5
2.1 Organization and Good Standing......................................5
2.2 Authorization, Validity and Effect of Agreements....................5
2.3 No Violation........................................................5
2.4 Title to Assets; Assumed Liabilities................................5
2.5 No Brokers..........................................................6
2.6 Governmental Approvals..............................................6
2.7 Investment Representations..........................................6
2.8 No Litigation.......................................................6
2.9 No Knowledge of Breach by Buyer.....................................6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER.......................6
3.1 Existence; Good Standing; Corporate Authority.......................6
3.2 Validity and Effect of Agreements...................................7
3.3 No Violation........................................................7
3.4 Valid Issuance......................................................7
3.5 Offering............................................................7
3.6 Governmental Approvals..............................................8
3.7 Subsidiaries........................................................8
3.8 Capitalization......................................................8
3.9 Capital Investments in Buyer........................................8
3.10 Limited Operations..................................................8
3.11 No Litigation.......................................................9
3.12 Consents and Approvals..............................................9
3.13 Proprietary Information.............................................9
3.14 Insurance...........................................................9
3.15 Compliance with Agreements..........................................9
3.16 Transactions With Affiliates.......................................10
3.17 Compliance with Laws...............................................10
3.18 No Brokers.........................................................10
3.19 Intellectual Property..............................................10
3.20 Customers; Marketing...............................................10
{/TABLE}
{PAGE}
{TABLE}
{S} {C} {C}
3.21 Acquired Microspheres, Reagents, Supplies and Other Consumables....11
3.22 Corporate Records; Other Information...............................11
3.23 Full Disclosure; No Knowledge of Breach by Seller or Luminex.......11
ARTICLE 4 COVENANTS....................................................12
4.1 General Covenants..................................................12
4.2 Covenants of Seller................................................12
4.3 Covenants of Buyer.................................................13
ARTICLE 5 CONDITIONS...................................................15
5.1 Conditions to Obligations of Seller................................15
5.2 Conditions to Obligations of Buyer.................................15
ARTICLE 6 TERMINATION..................................................16
6.1 Termination by Mutual Consent......................................16
6.2 Termination by Either Buyer or Seller..............................16
6.3 Termination by Seller..............................................16
6.4 Termination by Buyer...............................................16
6.5 Effect of Termination and Abandonment..............................16
6.6 Extension; Waiver..................................................17
ARTICLE 7 INDEMNIFICATION..............................................17
7.1 General Indemnification by Buyer...................................17
7.2 General Indemnification by Seller and Luminex......................17
7.3 Expiration and Limitation..........................................18
7.4 Indemnification Procedures.........................................18
7.5 Survival of Representations, Warranties and Covenants..............20
7.6 Remedies Cumulative................................................20
7.7 Compliance with Bulk Sales Laws....................................20
ARTICLE 8 GENERAL PROVISIONS...........................................21
8.1 Notices............................................................21
8.2 Assignment; Binding Effect; Benefit................................22
8.3 Entire Agreement...................................................22
8.4 Amendment..........................................................22
8.5 Governing Law......................................................22
8.6 Counterparts.......................................................22
8.7 Waivers............................................................22
8.8 Incorporation of Exhibits..........................................23
8.9 Severability.......................................................23
8.10 Expenses...........................................................23
8.11 Change in Name.....................................................23
8.12 Enforcement of Agreement...........................................23
8.13 Headings...........................................................23
8.14 Officers of Buyer and Seller.......................................23
{/TABLE}
{PAGE}
This ASSET PURCHASE AGREEMENT (the "Agreement") is effective as of the
5th day of September, 2002, by and between Rules-Based Medicine, Inc., a
Delaware corporation ("Seller"), and wholly-owned subsidiary of Luminex
Corporation, a Delaware corporation ("Luminex"), Luminex and RBM Acquisition,
Inc., a Delaware corporation ("Buyer").
WHEREAS, Luminex and Seller desire to sell certain assets to Buyer at
the Closing (as hereinafter defined) associated with the RBM Business (as
hereinafter defined), and Buyer desires to purchase certain assets from and
assume the liabilities of Luminex and Seller all on the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, the RBM Business is herein defined as the business of
developing and commercializing testing services and reagent kit products for the
pharmaceutical, diagnostics, toxicology, epidemiology and biotechnology markets,
generating and selling access to a database of information from blood samples
and other fluids or tissues and determining the relevance of such information
and establishing an intellectual property position around the relationship of
the information to health and disease, including diagnostics, prognostics and
therapeutics (the "RBM Business").
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein made, and of the representations, warranties, covenants, and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 PURCHASE AND SALE OF ASSETS. Subject to all the terms and conditions
of this Agreement, at the Closing, Luminex and Seller shall sell, transfer,
convey, assign and deliver to Buyer and Buyer shall purchase, acquire and accept
from Luminex and Seller the assets described in Schedule 1.1 attached hereto and
made a part hereof, wherever located (collectively, the "Assets").
1.2 ASSUMED LIABILITIES. Notwithstanding anything herein to the
contrary, Buyer shall assume all Luminex and/or Seller liabilities associated
with the RBM Business, including, but not limited to, all operating liabilities
of Luminex and/or Seller associated with the RBM Business and the employment
agreements of any transferring employees as set forth on Schedule 1.2 attached
hereto and made a part hereof (collectively, the "Assumed Liabilities").
"Assumed Liabilities" shall not include (i) the items listed on Schedule 8.10
(which shall be paid by the parties hereto as set forth therein) or (ii) the
"Retained Liabilities" noted as such on Schedule 1.2. At the Closing, upon
delivery of the Bill of Sale (in the form of Exhibit A) and the Assignment and
Assumption Agreement (in the form of Exhibit B), Buyer shall assume and agree to
pay or discharge when due in accordance with their respective terms, whenever
arising, direct or indirect, absolute or contingent, the Assumed Liabilities.
1.3 PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") for the Assets and the
other obligations and agreements described or referred to in this Agreement
shall be (i) 990,000 shares
{PAGE}
of Series A Preferred Stock, $.001 par value per share of Buyer (the "Series A
Preferred Stock") which shall have such rights, terms and conditions as set
forth in the Certificate of Designations of Series A Redeemable Preferred Stock,
$.001 par value per share of Buyer, the terms of which are set forth as Exhibit
C hereto, plus (ii) 901,000 shares of common stock, $0.001 par value per share
of Buyer (the "Common Stock", collectively with the Series A Preferred Stock,
the "Shares'), which shall have such terms as set forth in Section 1.3(b) of
this Agreement.
(b) Luminex shall be issued shares of Common Stock equal to ten
percent (10%) of the fully diluted capital stock of Buyer (the "Equity
Interest"). The Equity Interest shall not be subject to dilution except
subsequent to an initial public offering of Buyer's Common Stock in a Qualified
Public Offering and, accordingly Buyer agrees that, in connection with any
future issuance of capital stock, at any time up to and including the issue of
Common Stock in the initial Qualified Public Offering, to issue Seller shares of
Common Stock equal to ten percent (10%) of the total amount of the fully diluted
capital stock to be issued in connection with such future issuance(s). For
purposes of this Agreement, the term "Qualified Public Offering" shall mean a
firm commitment underwritten public offering of Common Stock in the aggregate of
not less than fifty million dollars ($50,000,000), a price per share of not less
than ten dollars ($10.00) per share and listing of such securities on a national
exchange or The Nasdaq Stock Market. Buyer's obligation to issue additional
Common Stock shall cease following a Qualified Public Offering.
1.4 THE CLOSING.
(a) Time and Place. Subject to the terms and conditions of this
Agreement, the closing under this Agreement (the "Closing") will take place at
the offices of Seller, at 10:00 a.m., Central Daylight Time, and remotely at
such other offices and locations as may be suited for delivery by facsimile or
overnight courier, on the first business day immediately following the date on
which the last to be fulfilled or waived of the conditions set forth in Article
5 shall be fulfilled or waived in accordance herewith or at such other time,
date, or place as Buyer and Seller may agree. The date on which the Closing
occurs is referred to herein as the "Closing Date" and is September 5, 2002.
(b) Parties' Obligations at Closing.
(i) At the Closing, Buyer will deliver to Seller:
(A) the Shares;
(B) a copy of the resolutions of the Board of Directors of
Buyer certified by Buyer's corporate secretary, as appropriate,
authorizing the execution, delivery, and performance of this
Agreement and the other documents referenced herein and the
consummation of the transactions contemplated hereby; and
(C) a certificate of Buyer certifying (i) as to the accuracy
of the representations and warranties of Buyer at the date of this
Agreement and at and as of the Closing, (ii) that Buyer has
performed or complied with the covenants, agreements, terms, and
conditions to be performed or complied with by Buyer at or prior to
the Closing, and (iii) that there have been no events, changes or
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