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EXHIBIT 10.4.31
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made
by and between
NEOPROBE EUROPE AKTIEBOLAG, reg. no 556440-1510, a corporation organized and
existing under the laws of Sweden, whose registered office is at Xxxxxxxxxx 00,
XX-000 00 XXXX (xxx "Seller"),
and
BIOINVENT PRODUCTION AKTIEBOLAG, reg. no 556230-7537, a corporation organized
and existing under the laws of Sweden, whose registered office is at Xxxxxxxxxx
00, XX-000 00 XXXX (xxx "Purchaser"),
WHEREAS, the Seller desires to sell to the Purchaser and the Purchaser desires
to acquire from the Seller certain assets owned by the Seller relating to the
business of the Seller;
NOW, therefore, the parties, intending to be legally bound hereby agree as
follows:
1. SALE AND PURCHASE
1.1 The Seller hereby sells and assigns to the Purchaser and the Purchaser
hereby purchases and assumes the assets related to the business of the
Seller as specified below (the "Assets");
(i) all the Seller's rights and obligations as of October 1st,
1998, in respect of the lease concerning the facilities of the
Seller (the "Facilities") annexed hereto as Schedule 1 (the
"Lease"), which has been validly assigned in accordance with
its terms and applicable law;
(ii) the machinery and equipment listed in Schedule 2 hereto (the
"Machinery");
(iii) the inventory listed in Schedule 3 hereto (the "Inventory");
and
(iv) lists and books, records and other documentation and
information related to the Machinery and Inventory, including
validation and operational documents for use of the Machinery,
set forth in Schedule 4 (the "Books").
1.2 By entering into this Agreement, the Buyer does not acquire or assume
any assets, claims, debts or liabilities of the Seller other than
expressly set out in this Agreement.
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1.3 The Seller shall upon both parties signature to this Agreement, deliver
to the Purchaser any and all keys, keycards and similar to the
Facilities in the Seller's possession and the Seller, including its
officers and employees, shall not be entitled to keep any copies
thereof.
2. PURCHASE PRICE
2.1 The total purchase price for the Assets shall be SEK 1.000.000 (the
"Purchase Price"), which shall be paid in full by the Purchaser within
three (3) business days after this Agreement has been signed by both
parties (the "Closing Date").
2.2 On Closing Date, the Purchase Price shall be paid in full in
immediately available funds to the Seller's bank account no 6759 887
233 708 with Svenska Handelsbanken.
2.3 In the event that the Swedish tax authorities should determine that
value added tax is chargeable on the sale of the Assets or on any part
of the Assets, the Purchaser agrees that such value added tax shall be
in addition to the sum specified in article 2.1 and that it shall pay
the amount of any such valued added tax.
3. CONTRACTS
3.1 The Lease shall prior to the Purchasers signing of this Agreement be
validly assigned by the Seller to the Purchaser with effect from
October 1st 1998. Rent due under the Lease prior to October 1st 1998
shall be paid and borne by the Seller and from and including October
1st 1998, by the Purchaser.
3.2 The Seller warrants to the Purchaser (i) that the Lease is validly
assigned to the Purchaser, (ii) that the Lease is valid and that the
Lease is the full agreement with the lessor and no side-agreements
exist that alters the Lease in any respect, and (iii) that the Seller
has or will fulfill all of its obligations and liabilities under the
Lease up to October 1st, 1998. The liabilities of the Seller shall i.a.
include any claims for damages which may be raised by the landlord
under the Lease pursuant to the inspection of the Facilities to be
carried out prior to the assignment of the Lease hereunder.
3.3 The Seller shall, effective as of October 16, 1998, terminate any and
all contracts relating to the Facilities (save for the Lease), such as
service agreements, heating, water, etc., which facilities are not
included in the Lease, unless the Parties prior to said date have
agreed otherwise. Any and all costs for such agreements relating to the
Facilities shall be paid and borne by the Seller.
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4. ASSETS
4.1 The ownership, title, right to and risk in the Machinery, the Inventory
and the Books shall pass to the Purchaser as of the Closing Date. The
Purchaser shall, however, as of signing, have unlimited access thereto
and the Seller undertakes not to dispose of the Machinery, the
Inventory or the Books in any way, without the prior written consent of
the Purchaser.
4.2 The Seller warrants that it has good and marketable title to all
Machinery and Inventory, in each case free and clear of any mortgage,
pledge, lease, lien, encumbrance, charge or title retention or other
security arrangements.
4.3. The Machinery and Inventory are sold and transferred "as is." However,
the Seller warrants to the Purchaser that the Machinery, up to and
including this day, has been kept and is maintained in accordance with
all relevant laws, regulations and operational instructions applicable
to the Machinery.
4.4 The sale and transfer of Machinery shall include the rights of the
Seller under any pending product warranty in favor of the Seller.
4.5 The Seller warrants that there is no pending action, litigation or
claim relating to the Assets.
5. EMPLOYEES
5.1 The Parties agree that the limited transfer of Assets under this
Agreement, shall not be considered as constituting a transfer of
business within the meaning of the Employment Security Act (Sw. Lag
(1982:80) om anstllningsskydd). Thus, there shall be no
obligation of the Purchaser to assume any responsibilities of whatever
nature against the employees of the Seller.
5.2 The Seller warrants that no claims will be raised against the Purchaser
by any other former or current employee of the Seller, or their
representatives and organizations, related to, i.a. right to
employment, right to re-instatement, salaries, vacation and vacation
pay, insurance, bonuses, pensions, options, deferred compensation,
retirement payments, profit sharing or any other benefits and
compensations or for damages related to their employment with the
Seller.
6. AUTHORIZATION
The Parties hereby warrants to the other respectively, that
(i) the Party has all corporate power and authority to enter into
this Agreement and to perform the transactions contemplated
hereunder; and
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(ii) the Party is not prohibited or restrained by its Articles of
Association, or by any other agreements to which it is a party
from entering into this Agreement and consummating the
transactions contemplated herein, and the Agreement and such
transactions have been duly authorized by all necessary
corporation actions.
7. REMEDIES, ETC.
7.1. In event of breach of the warranties given under this Agreement, the
Party in breach shall compensate the other Party in full for any
deficiency or cost relating to such breach. However, the liability of
each Party hereunder shall be limited to an amount equal to the
Purchase Price. The remedy provided in this article 7.1 shall be
exclusive.
7.2 The liability of Seller under this Section 7 shall remain valid for a
period of twelve (12) months following Closing Date. No claim shall be
brought by either Party against the other in respect of any breach of
the Warranties, unless notice in writing of any such claim, specifying
the nature of the breach and the approximate amount claimed in good
faith in respect thereof, has been given to the other Party as soon as
possible and not later than sixty (60) days after the Party became
aware of any circumstance giving rise to a claim.
8. INSURANCE
The Seller represents that it, up to and including October 16, 1998,
will for the benefit of the Purchaser maintain in full force and effect
adequate insurances to cover the full value of the Assets. Should an
insured event occur on or before October 16, 1998, the Seller shall,
against the Purchaser paying the Purchase Price, assign to the
Purchaser any and all insurance amounts due under the applicable
insurance.
9. ADDITIONAL COVENANTS
9.1 It is agreed that the Seller until October 16, 1998, during normal
business hours, shall be entitled to freely access agreed parts of the
Facilities in order to make the necessary arrangements to finalize its
business. During such visits, representatives of Seller shall act with
due and proper care.
9.2 It is further agreed that the Purchaser shall allow an employee of the
Seller (an accountant) to have use of such office space as reasonably
required until the Seller can close the financial accounting year and
complete its financial reporting requirements under Swedish law,
however, not for a period of time extending the month of December 1998.
The Purchaser agrees that the Seller and its successors-in-title may
store Seller's financial and regulatory records at the Facilities for
the earlier of (i) the period of time the Purchaser occupies the
Facilities; or (ii) for the retention period required by law for such
records.
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9.3 It is further agreed that the Seller and its successors-in-title upon
request, on its own expense, during normal business hours shall be
entitled to access and make photocopies of such product documentation
as validation data, SOPs, etc., included in the Books which refers to
any products of the Neoprobe group of companies which have been
processed by any of the Machinery.
9.4 The Purchaser agrees that, for a period of 24 months following the
Closing Date, the Seller and its successors-in-title may leave the cell
banks currently located in the Facilities (the "Cell Banks" which are
to be listed jointly by the parties), and that the Purchaser will
maintain the Cell Banks and conduct periodic stability testing in
accordance with the established SOPs at no cost to Seller or its
successors-in-title. The SOPs are to be provided to the Purchaser by
Seller free of charge. If requested by the Seller or its
successors-in-title, upon expiration of the 24-month period, the
parties agree to negotiate in good faith continued maintenance and
testing by the Purchaser on the Cell Banks, and the conditions
herefore.
9.5 The Purchaser further agrees that, for a period of 24 months following
the Closing Date, the Seller shall have the right to leave the vialed
monoclonal antibody samples (the "Monoclonal Samples" which are to be
listed jointly by the parties), currently located in the Facilities and
that the Purchaser will maintain the Monoclonal Samples at no cost to
the Seller or its successors-in-title. If requested by the Seller or
its successors-in-title, upon expiration of the 24-month period, the
parties agree to negotiate in good faith continued maintenance by the
Purchaser on the Monoclonal Samples, and the conditions herefore.
9.6 Save for the equipment referred to in article 9.7 below, the Seller
undertakes to remove any and all property kept in the Facilities which
is not subject to the transfer under this Agreement, on or before
October 16, 1998.
9.7 The Purchaser undertakes to dismount the filling machine and the
isolator set forth in Schedule 5 (the "Equipment"), and keep it
available for collection by the Seller upon 14 days prior written
notice from the Seller. Solely provided that Seller has given notice
pursuant hereto, Seller undertakes to collect the dismounted Equipment
within seven (7) days after the Purchaser gives notice to Seller that
the Equipment is ready for removal. The Seller shall in no event
collect the Equipment later than on December 30, 1998. The dismounting
shall take place with due and proper care, but otherwise in a way that
the Purchaser finds convenient.
9.8 The duties of the Purchaser under the articles 9.2, 9.4-9.5 and 9.7
above shall be exercised by the Purchaser using due and proper care.
However, there shall be no liability of the Purchaser for loss or
damage to the property or similar, unless caused by negligence on
behalf of the Purchaser. The Seller or its successors-in-title shall at
all times maintain the appropriate and adequate insurances for the
property of the Seller, held by the Purchaser.
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10. CONFIDENTIALITY
10.1 The Seller undertakes not to disclose to any third party any
information regarding the Assets that is not already in the public
domain.
10.2 The Seller hereby waives all its rights under the Proprietary
Information Disclosure Agreement signed by and between the Parties on
September 4th, 1998.
10.3 The Purchaser undertakes not to disclose to any third party or to use
for its own purposes any information regarding the Cell Banks, the SOP
or the Monoclonal Samples that is not already in the public domain or
previously known by Purchaser through its own operations.
11. NOTICES
All notices, consents and other communications required or permitted
under this Agreement shall be made in writing and be deemed to have
been duly given by the Parties if addressed and delivered by confirmed
fax or registered mail to the addresses or fax numbers set forth below
(or to such other addresses or fax numbers as may be given by written
notice in accordance with this Section 11).
If to the Seller: Neoprobe Europe AB
c/o Neoprobe Corp.
Attention: Xxxxx X. Xxxx
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
XXX
Fax no: x0 (000) 000 0000
If to the Purchaser: BioInvent Production AB
Attention: President
XX-000 00 XXXX
Xxxxxx
Fax no. x00 00 000 00 00
12. GOVERNING LAW AND ARBITRATION
12.1 This Agreement shall be construed in accordance with and governed by
the laws of Sweden.
12.2 Any dispute, controversy or claim arising out of, or in connection
with, the Agreement or from agreements resulting thereof shall be
exclusively settled by arbitration in accordance with the Rules of
Expedited Arbitration of the Stockholm Chamber of Commerce. The
arbitration shall take place in Malmo and be conducted in the English
language.
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The parties hereto here cause this Agreement to be duly executed in two copies
by their respective authorized officers as of the respective dates set forth
below.
Date: October 9, 1998 Date: October 14, 0000
Xxxxx: Xxxxxx, Xxxx Place: Lund
NEORPOBE EUROPE AB BIOINVENT PRODUCTION AB
/s/ Xxxxx X. Xxxx /s/ Xxxx Xxxxxxxxx
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Xxxxx X. Xxxx Xxxx Xxxxxxxxx
Chairman of the Board of Directors Chairman of the Board of Directors
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
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Xxxx Xxxxxx Xxxxxx Xxxxxxxx
Director Director
We hereby jointly and severally with Neoprobe Europe AB, guarantee the due
fulfillment of any and all liabilities of Neoprobe Europe AB under this
Agreement, including but not limited to any liabilities arising under the
warranties given by Neoprobe Europe AB hereunder.
Sections 11 and 12 shall apply also to the above guarantee.
Place: Dublin, Ohio
Date: October 9, 1998
NEOPROBE CORP.
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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