EXHIBIT 99.9
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ASSET PURCHASE AGREEMENT
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This is an Agreement made and entered into on the 16th day of February, 2001, by
and between Able Laboratories, Inc., a Delaware corporation, doing business as
N/A with its principal place of business at 0 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000 ("Seller") and TRIPLE L, LTD., an Illinois corporation, located
at 00 Xxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx ("Buyer").
WHEREAS, Seller desires to sell and Buyer desires to buy certain assets
of Seller's business in Plainfield, New Jersey and hereinafter described.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed by and between the parties as follows:
1. Representations and Warranties of Seller Seller represents and
warrants to Buyer as follows:
(a) Seller is a corporation duly organized and existing and in
good standing under the laws of the State of Delaware and is duly authorized to
carry on its business and to own its properties as and in the place in
Plainfield, New Jersey, where such properties are now owned and operated.
(b) Seller his good and marketable title to all of the Assets
to be conveyed, transferred and assigned to Buyer pursuant to this Agreement,
subject to no mortgage. conditional sales agreement, charge, lien or
encumbrance.
(c) Seller has filed all federal, state and local governmental
tax returns required by it to be filed in accordance with the provisions of law
pertaining thereto and has paid all taxes and assessments (including, without
limitation of the foregoing, income, excise, unemployment, social security,
occupation, franchise, property, and import taxes, duties or
charges and all penalties and interest in respect thereto) required by Seller to
have been paid to date, as all of such returns and payments pertain to the
ownership of Assets and the operation of business at Seller's location in
Plainfield, New Jersey.
(d) There are no legal, quasijudicial or administrative
actions, suits or proceedings of any kind or nature now pending or, to the
knowledge of Seller, threatened before any court or administrative body in any
manner involving the Seller (including, but not by way of limitation, any
pending or threatened charges for unfair labor practices) or any of its
properties or shares of capital stock, or which may adversely affect the power
or authority of Seller to carry out the transactions to be performed by Seller
hereunder.
(e) With respect to the ownership and operation of its
business at Able Laboratories, Inc., Seller is not a party to any of the
following agreements, written or oral, which would give rise to liability on the
part of Buyer or result in a lien, charge or encumbrance against the Assets: (i)
any contract not made in the ordinary course of business, (ii) any employment
contract which is not terminable without cost or other liability to Seller, or
any successor, (iii) any contract with any labor union, (iv) any bonus, pension,
profit sharing, retirement share purchase, hospitalization insurance or similar
plan providing employee benefits, (v) any lease with respect to any property,
real or personal, whether as lessor or lessee, (vi) any advertising contract or
contract for public relations services, (vii) any continuing contract for the
purchase of materials, supplies or equipment, (viii) any sales and service,
distributorship, agency, or franchise contracts, or (ix) any contract continuing
for a period of more than thirty (30) days or which is not terminable without
cost or other liability to Seller or its successors.
(f) With, respect to the ownership and operation of its
business at Able Laboratories, Inc., Seller has, in all respects, performed all
obligations required to be performed
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by it to date and is not in default in any respect under any of the contracts,
agreements, leases or other documents to be assigned to Buyer and has made all
pension, profit sharing, welfare and other contributions called for by the terms
of any agreement or plan to which it is a party (and as of the Closing Date will
have made all such contributions accruing prior to such Closing Date.)
(g) The consummation of the transactions contemplated by this
Agreement and compliance with the provisions hereof will not conflict with or
result in a breach of the terms, conditions or provisions of, or constitute a
breach or default under, any provision of the law, any order of any court or
other agency of government, known to and binding upon Seller, the charter or
bylaws of Seller or any note, debenture, mortgage, loan agreement or other
instrument to which Seller is a party, or by which it is bound or will result in
the creation or imposition of any lien, charge or encumbrance of any kind
whatsoever on the assets to be transferred to Buyer pursuant to this Agreement.
(h) Seller has not entered into or committed itself, orally or
in writing, to any purchase, sales or other commitments, not in the ordinary
course of business, or to any sales warranty policies or customer claims
policies which, upon closing of these transactions, would be binding upon Buyer
or which could result in a lien, charge or encumbrance of any kind whatsoever on
the Assets following Closing.
(i) At the Closing Date, Seller will have all necessary
federal, state or local licenses, permits and authorizations for the use of its
facilities at its place of business in Plainfield, New Jersey and is, and at all
times to and including the Closing Date, will be in full compliance with the
terms thereof.
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(j) The Board of Directors of Seller have approved this
Agreement and the transactions contemplated herein and have authorized the
execution and delivery hereof by Seller.
2. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
(a) Buyer is a corporation ("Corporation") and is duly
organized, validly existing and in good standing under the laws of the State of
Illinois and has full power and authority to enter into this Agreement and
perform the transactions contemplated herein. The Corporation is duly qualified
to do business in the State of New Jersey.
(b) This Agreement shall be, when duly executed and delivered,
a legal and binding obligation of Buyer and the Corporation, enforceable in
accordance with its terms.
(c) No representation or warranty by Buyer in this Agreement
contains or will contain any untrue statement or omits or will omit to state a
material fact necessary to make the statements contained herein not misleading.
All representations and warranties made by Buyer in this Agreement shall be true
and correct as of Closing with the same force and effect as if they had been
made on and as of such date.
(d) To the best of Buyers knowledge, neither Buyer nor any
officer, director, affiliate, or controlling person of Seller has committed any
violation, or been in any way in contravention, of any law, rule or regulation
governing transactions in securities, in connection with the transactions
herein.
(e) Buyer has formed his own opinion as to the value of
Seller's Assets being purchased hereunder. The parties agree that Seller's
warranties include only the express written warranties that are contained in
this Agreement. Any other express warranties, oral or written,
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not contained in this Agreement are of no force and effect. Seller hereby
disclaims all implied warranties, including without limitation, implied
warranties of merchantability and of fitness for special or ordinary uses or
purposes. The parties acknowledge that Buyer has inspected such Assets to the
full extent of Buyer's desire, and Seller has given Buyer ample opportunity to
conduct such inspections. Seller's Assets being purchased hereunder, except as
expressly warranted or represented herein, are purchased "As Is" and "With All
Faults." Seller warrants that all motor vehicles, machinery and equipment being
sold pursuant hereto shall be in operating condition at the time of Closing.
(f) No actions or proceedings are pending or to Buyer's best
knowledge, threatened before any court, administrative authority or other
authority that might materially or adversely affect Buyer's ability or right to
perform all of his obligations hereunder.
(g) Buyer will have sufficient funds necessary to enable him
to meet his cash obligations under this Agreement.
3. Covenants of Seller. Seller represents and covenants to Buyer that
during the pending completion of the sale of the Assets contemplated hereby and
as of Closing that:
(a) Each and every covenant, representation and warranty set
forth in Paragraphs 1 and 3 hereof shall be true and correct.
(b) Seller will maintain itself at all times up to and
including the Closing Date as a duly organized corporation in good standing
under the laws of the State of Delaware.
(c) Seller will afford Buyer, his representatives, agents and
employees, at all reasonable times, access and facilities to use, with respect
to all of the assets of Seller and its books, files, records and insurance
policies as they relate to the assets for the purpose of audit, inspection and
examination thereof, and will do everything reasonably necessary to enable Buyer
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to make a complete examination of the Assets of Seller and the condition
thereof. All information so obtained by Buyer and his representatives, agents
and employees shall be kept confidential.
(d) Other than in favor of Buyer, Seller will not further
mortgage, pledge or subject to lien or other encumbrance any of the Assets.
(e) Seller will not dispose of any of the Assets subject to
the terms of this agreement or in anywise obligate itself to do so except as may
be expressly provided by the terms of this Agreement.
(f) Seller will keep all of its insurable Assets insured in
accordance with its present practice, and it will maintain, preserve and keep
all improvements on its property and all equipment, furniture, fixtures and
other personal property constituting a part of the Assets in a good condition
and state of repair, reasonable wear and tear or damage or loss by fire, storm
or other casualty loss excepted.
4. Covenants of Buyer. Buyer represents and covenants to Seller that
during the pending completion of the sale of the Assets contemplated hereby and
as of Closing that:
(a) Each and every covenant, representation and warranty set
forth in Paragraphs 2 and 4 hereof shall be true and correct.
(b) Buyer shall have performed and complied with all its
terms, agreements and conditions under this Agreement on or before Closing.
5. Representations, Warranties and Covenants True as of Closing Date.
All of the representations, warranties and covenants herein contained in
Paragraphs 1 through 4 hereof shall be true and correct and shall not have been
breached on and as of the Closing Date as
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though made on and as of said Closing Date, and all such representations,
warranties and covenants shall survive the Closing Date.
6. Transfer and Pricing of Assets to be Sold. Seller shall sell and
Buyer shall buy the equipment described on Exhibit "B" attached hereto
("Assets"). The price to be paid for all said Assets is Seven Hundred and
Seventy Dollars ($770,000). Seller shall transfer and deliver marketable title
to such Assets by appropriate Xxxx of Sale, free and clear of all mortgages,
liens and security interests therein. The purchase price shall be paid by Buyer
on the Closing Date.
7. Payment of Seller's Obligations. This is an asset purchase only.
Buyer is not assuming or agreeing to pay any of Seller's debts or obligations
whatsoever. Seller agrees to pay any debts or liabilities which could result in
the attachment, after Closing, of any lien or encumbrance to the Assets, and to
indemnify and hold Buyer harmless from any liabilities whatsoever arising out of
any of Seller's debts or obligations.
8. Lease. Subsequent to this Agreement, Buyer and Seller shall enter
into an Equipment Lease Agreement in the form attached as Exhibit "B", which
shall provide for monthly rental of the Assets described in Exhibit "A" from
Buyer to Seller. During the term of the Lease, taxes, insurance, repairs and
maintenance on the Assets shall be paid by the Seller. At the end of the lease
term, Seller shall have the optioh to repurchase the Assets for cash in an
amount established by such Equipment Lease Agreement.
9. Brokers. Seller and Buyer each represent and warrant to the other
that each party will be solely responsible to any person employed by it for any
broker's, finder's or similar fees incident to this sale, and will indemnify and
hold harmless the other from all such fees.
10. Closing Date. The Closing Date, as used herein, shall be February
__, 2001 or on such other date as may be mutually agreeable to the parties.
Closing shall occur at such place as
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shall be mutually agreed upon by the parties. Prior to the Closing Date, Seller
will permit Buyer and its representatives access to all Seller's records related
to its business and to the premises for physical inspection of the Assets to be
sold. For purposes of this Agreement, the "Closing Date" means the day on which
the purchase prices are paid and the Bills of Sale and other transfer documents
are executed and delivered.
11. Conditions Precedent to Seller's Obligation's. Seller's obligations
to complete the Closing hereunder are, at its option, subject to the following
conditions:
(a) All Buyer's representations and warranties contained in
this Agreement shall be true in all material respects as of and at the Closing.
(b) Buyer shall have performed and complied with all its
agreements, terms, and conditions under this Agreement on or before the Closing.
(c) Buyer shall have delivered to Seller true copies of
current UCC searches of documents filed in the office of Secretary of State of
New Jersey on Seller or its Assets.
12. Conditions Precedent to Buyer's Obligations. Payment of the
purchase prices stated in this Agreement shall be conditioned upon their
calculation under the provisions of this Agreement and upon accomplishment of
the following conditions precedent, it being understood that Seller shall do
everything reasonably within its power to cause such conditions to be
accomplished:
(a) On the Closing Date:
(i) Seller shall have reasonably satisfied Buyer that all
Assets transferred hereunder are in as good condition, reasonable wear and tear
excepted, as when inventoried and the prices for such items established, or, if
not in such condition, have been removed from the premises to be transferred
hereunder and the price reduced accordingly. The
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Assets shall be transferred without any other warranties, express or implied,
except warranty of title.
(ii) Seller shall execute in favor of Buyer or the
Corporation Bills of Sale, effective under the laws of New Jersey, for all
Assets to be transferred by Seller hereunder, other documents of transfer of
title, and any other documents necessary or desirable in the opinion of Buyer's
counsel in connection with the transfer, which documents shall warrant title to
Buyer and shall in all respect be in such form as may be reasonably required by
Buyer or its counsel.
(iii) All actions, proceedings, instruments and documents
required to carry out this Agreement or incident thereto, and all other legal
matters, shall have been approved by counsel for Buyer, it being understood that
such approval shall not be unreasonably withheld.
(b) On or before Closing Date:
(i) Seller shall have furnished to Buyer evidence to the
reasonable satisfaction of Buyer and his counsel of ownership by Seller of the
Assets to be transferred by Seller, free of any mortgage, conditional sales
agreement, charge, lien, encumbrance or security interest
(ii) Buyer shall not have discovered any material error,
misstatement or omission in any of the representations or warranties made by
Seller herein. In the event that any of the conditions hereinabove set forth
shall not have been fulfilled on or before the Closing Date, Buyer shall have
the right at his option to rescind this Agreement.
13. Bulk Sales Law. The parties hereby waive Seller's compliance with
the provisions of the New Jersey Uniform Commercial Code-Bulk Transfers. Seller
shall hold a sufficient
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amount of the net cash proceeds in trust to pay all its creditors as and when
their claims come due, and hold and save Buyer harmless against any loss, damage
or expense, including reasonable attorneys, fees and court costs, incurred by
Buyer as a result of or attributable to the parties' failure to comply with such
provisions.
14. Expenses of Transaction. Whether or not the transaction
contemplated hereby is consummated, except as otherwise specifically provided in
this Agreement, each party shall pay its own expenses incident to the
preparation of this Agreement, or for carrying this Agreement into effect and
consummating the transactions hereby contemplated.
15. Waiver. The waiver by any party of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any other
provision of this Agreement or any subsequent breach thereof.
16. Notices. Any notice, communication, request, reply or advice
(hereinafter severally and collectively, for convenience, called "Notice") in
this Agreement provided or permitted to be given, made or accepted by either
party to the other must be in writing and may, unless otherwise in this
Agreement expressly provided, be given or be served by depositing the same in
the United States mail, postage paid, and registered or certified, and addressed
to the party to be notified, with return receipt requested, or by delivering the
same in person to an officer of such party, or by prepaid telegram, when
appropriate, addressed to the party to be notified. Notice deposited in the mail
in the manner hereinabove described shall be effective, unless otherwise stated
in this Agreement, from and after the date it is so deposited. Notice given in
any other manner shall be effective only if and when received by the party to be
notified. For purposes of notice, the addresses of the parties shall be as
follows:
If to Seller to: Able Laboratories
0 Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
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with a Copy to: Xxx Xxxxxxx
If to Buyer to: TRIPLE L, LTD.
00 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
With a Copy to: Xxx Xxxxxxx
17. Entire Agreement.
(a) This Agreement is the entire agreement between the parties
and supersedes all prior and contemporaneous agreements and understandings of
the parties.
(b) This Agreement shall be construed and enforced in
accordance with Illinois law.
18. Section and Other Headings. Section and other headings contained in
this Agreement are for reference purposes only, and shall not affect in any way
the meaning or interpretation of this Agreement.
19. Time. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
WITNESS: Xxxxxx X. Xxxxx Xx. Able Laboratories, Inc.
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By: Xxx Xxxxxxx
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Its: President
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TRIPLE L, LTD.
By: Xxx Xxxxxxx
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Its: Vice President
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