EXHIBIT 10.53
ASSET PURCHASE AGREEMENT
This Agreement is dated March 23, 1998, by and among BIOJECT MEDICAL
TECHNOLOGIES INC., an Oregon corporation ("Purchaser"), VITAJET CORPORATION, a
California corporation ("Seller"), and XXXXXX XXXXXX and XXXX X. XXXXXX
(collectively, "Landau").
R E C I T A L S:
Seller manufactures and sells a needle-free injection system under the trademark
"Vitajet" (the "Business"). Landau owns all of the issued and outstanding stock
of Seller. Seller wishes to sell substantially all of the assets of the Business
to Purchaser, and Purchaser wishes to purchase such assets, in accordance with
the terms of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Sale and Purchase.
Subject to the terms and conditions of this Agreement, Seller agrees to sell and
transfer to Purchaser on the Closing Date (as defined below) and Purchaser
agrees to buy from Seller, substantially all of the assets of the Business,
which shall include the inventory specified in Section 2, molds, trademarks,
tradenames, patents, copyrights, trade secrets, FDA approval to market the
Vitajet injector, customer lists, pending contracts to which Seller is a party,
and records of the Business, together with the name "Vitajet" and all goodwill
associated with such name (the "Assets"). A list of the Assets as of the date of
this Agreement is attached hereto as Exhibit A. Items listed in Exhibit D and
Exhibit E attached hereto are also Assets being transferred.
2. Assets and Business Not to be Transferred.
Seller shall retain, and Purchaser shall not acquire, Seller's cash, cash
equivalents, bank accounts, corporate franchise, prepaid expenses, receivables,
furniture, computers, office materials and vehicles. In addition, Seller shall
retain all inventory of finished Vitajet injector units and syringes except for
12 injector units and 50 boxes of syringes, which shall be included in the
Assets.
3. Liabilities.
Purchaser does not assume any actual or contingent liability, obligation or
commitment of Seller, other than liabilities and obligations related to the
contracts that Purchaser is assuming that arise after Closing. Seller shall
satisfy all liabilities being retained by Seller out of the proceeds of the sale
or from other assets of Seller.
4. Consideration.
The consideration (the "Purchase Price") for the transfer of the Assets shall be
as follows.
(a) Purchaser shall issue to Seller at Closing (as defined in Section 9)
100,000 shares of Purchaser's common stock.
(b) Purchaser shall issue to Seller payments of 60,000 shares of Purchaser's
common stock on each of March 31, 1999, 2000 and 2001, provided that Seller
or Seller's agent, Landau, is making reasonable progress toward the
achievement of the following goals (which are not necessarily listed in
order of importance or priority):
(i) Technology transfer of current Vitajet 3 to Purchaser's Portland facility
to be completed by September 30, 1998.
(ii) Designing, prototyping and validation testing of a modified version of the
Vitajet 3, and an adaptation of Purchaser's standard disposable syringe, so
that both products can work together, for subcutaneous injections of 0.5
cc. or less.
(iii)Designing, prototyping and validation testing of a low cost and small
(marker size) needle-free injector with disposable syringe for subcutaneous
injections of 0.5 cc. or less.
(iv) Designing, prototyping and validation testing of a syringe/spacer and
necessary adaptation of the standard Biojector or alternate injector, for
intradermal injections of 0.5 cc. or less.
The goals specified above, which currently are expected to be completed by March
31, 2001, except as specified above, are subject to reasonable modifications by
Purchaser.
(c) Purchaser shall issue to Seller up to an additional 90,000 shares of
Purchaser's common stock if certain conditions are met by March 31, 2001.
Seller will be entitled to receive such shares in the amounts specified
below if Seller's existing products or new products designed by Seller or
Seller's agent, Landau (such existing and new products to be referred to
herein as the "Products"), result in aggregate revenues to Purchaser in the
amounts specified below:
Aggregate Revenues Number of Shares
Up to $1,000,000 30,000
$1,000,001 to $2,000,000 Additional 30,000
More than $2,000,000 Additional 30,000
Aggregate revenues to be received by Purchaser from the Products will be
calculated as follows:
(i) If one or more partnership agreements relating to the Products are signed
by Purchaser and a third party by March 31, 2001, the revenues to be earned
by Purchaser under each such partnership agreement will equal the amounts
committed to be paid to Purchaser under such partnership agreement with
respect to the Products during the first ten years after the partnership
agreement is signed; and
(ii) If the Products are sold outside of a partnership arrangement, revenues
from such sales will be included in the calculation as Products are shipped
to third-party purchasers of the Products; provided, however, that Products
must be shipped by March 31, 2001 to be included in the calculation of
aggregate revenues.
All revenues committed to be received under each partnership agreement during
the first ten years after the agreement is signed and all sales of the Products
outside of partnership arrangements will be aggregated in meeting the milestones
specified above. Once Seller has met a milestone, Purchaser will issue a stock
certificate representing the earned shares within 30 days thereafter.
(d) The stock certificates representing the shares issued hereunder will bear
such legends as the Company shall deem appropriate to reflect the
restrictions on transfer imposed by federal and applicable state securities
laws. Purchaser agrees to use reasonable efforts to file Form S-3 (or
successor form) to register the shares issued hereunder within 90 days
after each such issuance of shares.
(e) With respect to each Vitajet injector unit purchased in excess of the 12
units specified in Section 2, Purchaser shall pay to Seller $110. For each
box of three-month supply of disposable items for inventory that Purchaser
purchases in excess of the 50 boxes of syringes specified in Section 2,
Purchaser shall pay Seller $19.
5. Purchase Price Allocation.
Each of the parties shall report this transaction for all state and federal tax
purposes in accordance with the allocation set forth on Exhibit B attached
hereto and shall not file any tax return or report (including Form 8594) or
otherwise take a position with federal or state tax authorities which is
inconsistent with such allocation. The allocation is intended to comply with
Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"), and
the related regulations.
6. Taxes.
Seller shall pay when due the entire amount of any sales, use, transfer, excise,
documentary and other like taxes or recording, filing or notary fees imposed by
any state or governmental subdivision within such state in connection with the
sale and transfer of the Assets. Personal property taxes shall be prorated as of
Closing.
7. Risk of Loss.
All right, title and interest and risk of loss with respect to the Assets shall
pass to Purchaser at the Closing.
8. Non-Competition.
In consideration of Purchaser's obligations under this Agreement, Landau and
Seller each agree that neither of them shall, for a period of three years from
the Closing Date, own, operate, represent, be employed by, or have any interest
in any business that competes with Purchaser with respect to the design,
manufacture or sale of needle-free injection systems anywhere in the world. In
addition, Seller and Landau shall not suggest or encourage any customer or
potential customer not to do business with Purchaser or to purchase products
similar to, or sold in competition with, those sold by Purchaser from anyone
other than Purchaser or do any act which may be detrimental to Purchaser.
9. Closing.
The transactions contemplated by this Agreement shall be consummated (the
"Closing") by facsimile at 2:00 p.m. on March 26, 1998, or by such other method
or on such other date and time, as the parties shall mutually agree (the
"Closing Date"). At the Closing, Purchaser and Seller shall take the following
actions:
(a) Seller shall execute and deliver to Purchaser a xxxx of sale and other
documents in a form reasonably acceptable to Purchaser transferring title
to the Assets to Purchaser. Such documents shall include assignment of the
name "Vitajet," and documents in form ready for filing changing Seller's
corporate name to exclude such name.
(b) Purchaser shall take possession, or arrange for taking possession, of the
Assets.
(c) Purchaser and Landau shall enter into an Employment Agreement in the form
of Exhibit C attached hereto.
(d) Purchaser shall deliver to Seller a stock certificate representing 100,000
shares of Purchaser's common stock.
10. Representations and Warranties of Seller and Landau.
Seller and Landau jointly and severally represent and warrant to Purchaser that:
(a) Organization. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the state of California. Seller has all
requisite corporate power and authority to, and is entitled to, carry on
its business as now conducted and to own or lease its properties as and in
the places where such business is now conducted and such properties are now
owned, leased or operated.
(b) Authorization. Seller has all requisite corporate power and authority to
enter into this Agreement and to consummate the contemplated transactions.
Seller's execution and delivery of this Agreement and consummation of the
transactions contemplated by this Agreement have been duly authorized by
all requisite corporate action. Seller and Landau have each duly executed
and delivered this Agreement, which constitutes the valid and binding
obligation of Seller and Landau, enforceable in accordance with its terms,
subject to all applicable bankruptcy, insolvency, reorganization and other
laws applicable to creditors' rights and remedies and to the exercise of
judicial discretion in accordance with general principles of equity. No
consent or approval or filing (with any governmental agency or otherwise)
is required for the execution of this Agreement. Landau owns all of the
issued and outstanding stock of Seller.
(c) Effect of Agreement. The execution and delivery of this Agreement by Seller
and Landau and consummation of the transactions contemplated by this
Agreement shall not result in a breach, default (with or without notice or
lapse of time, or both) or violation of, or the creation of any lien,
charge or encumbrance pursuant to any provision of the Articles of
Incorporation or Bylaws of Seller, any law or regulation of any
governmental authority, foreign or domestic, or any provision of any
agreement, instrument, understanding, order, judgment or decree to which
Seller or any of its properties or assets is bound or affected.
(d) Title to Assets. Seller has good and marketable title to all of the Assets,
all of the Assets are free and clear of restrictions on or conditions to
transfer, and at the Closing, Seller shall transfer to Purchaser good title
to all of the Assets, free and clear of any mortgages, liens, security
interests, pledges, encumbrances, claims, conditions and restrictions, of
any nature whatsoever, direct or indirect, whether accrued, absolute or
contingent, known or unknown. Purchaser shall receive from Seller all of
Seller's rights in the name "Vitajet" and Seller shall not attempt to
convey any rights in such name to any other party.
(e) Environmental Matters.
(i) Neither Seller nor Landau nor, to the best of their knowledge and belief,
any other person has used, sold, treated, released, stored or disposed of
any Hazardous Material (as defined below) used in or with or affecting the
Assets in violation of any Applicable Law (as defined below).
(ii) Seller has not exposed its employees or others to Hazardous Materials in
violation of Applicable Laws.
(iii)No action, investigation, proceeding, permit revocation, permit amendment,
writ, injunction or claim is pending, nor has Seller received notice of any
of the foregoing, concerning or relating to (i) the use, storage, sale or
disposal of any Hazardous Material related to or affecting the Assets, (ii)
the release of or the exposure of any person to Hazardous Materials as a
consequence of the activities related to or affecting the Business, or
(iii) the presence of any Hazardous Material in or on any property that has
been owned, leased, operated or occupied by Seller which is related to or
affecting the Assets.
(iv) For purposes of this Agreement, the term "Applicable Law" shall mean any
statute, regulation, rule, order or law that relates to the use, sale,
treatment, disposal or storage of any material ("Hazardous Material")
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act,
the Federal Water Pollution Control Act, the Clean Air Act, the Hazardous
Materials Transportation Act, the Clean Water Act and all applicable state
and local laws and regulations.
(f) Employees. Seller has no liability to any of its employees or former
employees for severance or termination pay, or for any unfunded pension
liability, which will either attach to the Assets being sold to Purchaser
hereunder or in any way become the liability of Purchaser following the
closing of the purchase and sale transaction contemplated by this
Agreement. Any such liability will be funded by Seller from the payment
being made to Seller by Purchaser hereunder.
(g) Plant Closure Notice. Seller has provided all notices, if any, that may be
required by the Worker Adjustment and Retraining Notification Act on
account of employment terminations arising from the transactions
contemplated by this Agreement. Such notices fully comply with requirements
of such Act and the related regulations. Seller has paid any and all
compensation and benefits that may be due to Seller's employees and former
employees under such Act.
(h) Compliance with Laws. Seller has complied with, is not in material
violation of, and has not received any notices of violation with respect
to, any federal, state or local statute, law or regulation (including all
applicable laws of Brazil) with respect to the conduct of its business, or
the ownership or operation of its business or the Assets.
(i) Litigation. There are no pending or threatened claims, litigation or
proceedings of any nature against Seller or Landau or to which Seller or
Landau is a party which could result in any lien or encumbrance on the
Assets or in any way impair the ability of Seller or Landau to fully
perform their obligations under this Agreement.
(j) Tax Matters. Seller has filed with the appropriate United States, state and
local governmental agencies all tax returns and reports required to be
filed by Seller and has paid, or has made provision for the payment of, and
has made adequate reserves therefor on its books and records, all taxes
which have become due. All such returns and reports are accurate and
complete to the best of Seller's knowledge, and Seller has paid in full or
has made adequate provision for the payment of, and has made adequate
reserves therefore on its books and records, all taxes, interest,
penalties, assessments or deficiencies shown to be due on such tax returns
and reports. Seller has made withholding of tax (and transmittals of the
same) required to be made under all applicable tax regulations.
(k) Condition of Assets. The Assets are in good repair and operating condition
and are fit for their intended purpose, except for reasonable wear and
tear.
(l) Financial Statements. Seller's financial statements (the "Financial
Statements") have been delivered to Purchaser. The Financial Statements are
complete and correct in all material respects, were prepared from the books
and records of Seller and fairly present the financial position of Seller
at the date thereof. All assets reflected on the Financial Statements
remain the assets of Seller located on its business premises as of the date
hereof, except for sales of inventory and other assets consumed in the
ordinary course of business.
(m) Intellectual Property. Attached hereto as Exhibit D is a true and complete
list of all patents and patent applications owned or pursued by Seller, and
of all trademarks, tradenames and copyrights of Seller for which Seller has
applied for or received a registration from any federal, state or local
governmental authority (collectively the "Intellectual Property"). Seller
is the sole owner of the Intellectual Property free of all liens,
encumbrances and security interests, and none of the Intellectual Property
infringes upon the rights of any third party.
(n) Manufacturing Cost. The manufacturing cost of the Vitajet device does not
exceed $110.
(o) FDA Approval. Seller has received FDA approval to market the Vitajet
injector. Purchaser agrees to pay the expenses of transferring such FDA
approval to Purchaser.
(p) Status of Contracts. Attached hereto as Exhibit E is a list of all
contracts to which Seller is a party and that Seller is assigning to
Purchaser hereunder. Each of such contracts is a binding agreement of the
parties thereto, and each of the parties thereto is current in its
obligations to the other parties thereto. No consent of any party is
required to assign the contracts to Purchaser.
11. Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller and Landau as follows:
(a) Organization. Purchaser is a corporation duly organized, validly existing
and having an active status under the laws of the state of Oregon.
Purchaser has all requisite corporate power and authority to carry on its
business as now conducted and to own or lease its properties as and in the
places where such business is now conducted.
(b) Authorization. Purchaser has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement by
Purchaser and the consummation by Purchaser of the transactions
contemplated by this Agreement have been duly authorized by all requisite
corporate action. This Agreement has been duly executed and delivered by
Purchaser and constitutes the valid and binding obligation of Purchaser
enforceable in accordance with its terms, subject to all applicable
bankruptcy, insolvency, reorganization and other laws applicable to
creditors' rights and remedies and to the exercise of judicial discretion
in accordance with general principles of equity. No consent or approval or
filing (with any governmental agency or otherwise) is required for the
execution of this Agreement.
12. Operation of Business Prior to Closing Date.
During the period from the date of this Agreement up to the Closing Date, Seller
shall operate its business in the usual, regular and ordinary course and in
substantially the same manner as operated previously.
13. Employees.
At or before the Closing, Seller shall terminate the employment of all of its
employees. Following Closing, Purchaser may, without obligation, accept and
consider applications from Seller's employees and may offer employment, at
Purchaser's sole discretion, to any of such persons under terms acceptable to
Purchaser.
14. Conditions Precedent to the Obligations of Seller and Landau.
The obligations of Seller and Landau to consummate and effect this Agreement and
the transactions contemplated by this Agreement shall be subject to the
satisfaction at the Closing of each of the following conditions, any of which
may be waived, in writing, by Seller or Landau:
(a) Representations, Warranties and Covenants. The representations and
warranties of Purchaser in this Agreement shall be true and correct on and
as of the Closing Date as though such representations and warranties were
made on and as of such date and Purchaser shall have performed and complied
with all covenants, obligations and conditions of this Agreement required
to be performed and complied with by it as of the Closing Date.
(b) No Litigation. No action, suit, proceeding or investigation shall be
pending or threatened before any court or government entity to restrain or
prohibit, or to obtain specific damages, in respect of this Agreement or
the consummation of the transactions contemplated by this Agreement and
which, in the reasonable judgment of Seller or Landau, has a reasonable
likelihood of success.
(c) Employment Agreement. At or prior to the Closing, Purchaser shall have
executed an Employment Agreement in the form of Exhibit C.
15. Conditions Precedent to the Obligations of Purchaser.
The obligations of Purchaser to consummate and effect this Agreement and the
transactions contemplated by this Agreement shall be subject to the satisfaction
at the Closing of each of the following conditions, any of which may be waived,
in writing, by Purchaser:
(a) Representations, Warranties and Covenants. The representations and
warranties of Seller and Landau in this Agreement shall be true and correct
on and as of the Closing Date as though such representations and warranties
were made on and as of such date, and Seller and Landau shall have
performed and complied with all covenants, obligations and conditions of
this Agreement required to be performed and complied with by either of them
as of the Closing Date.
(b) Employment Agreement. At or prior to the Closing, Landau shall have
executed an Employment Agreement in the form of Exhibit C.
(c) No Litigation. No action, suit, proceeding or investigation shall be
pending or threatened before any court or government entity to restrain or
prohibit, or to obtain specific damages, in respect of this Agreement or
the consummation of the transactions contemplated by this Agreement and
which, in the reasonable judgment of Purchaser, has a reasonable likelihood
of success.
(d) No Adverse Changes. There shall have been no material adverse changes in
Seller or its Business.
16. Indemnification.
(a) By Seller and Landau. Seller and Landau shall defend, indemnify and hold
Purchaser harmless from and against any and all claims, losses or
liabilities (including reasonable attorney fees, court costs and expenses
of investigation as determined by a court of competent jurisdiction),
incurred by Purchaser or any of its affiliates: (i) as a result of any
breach of Seller's or Landau's representations, warranties or covenants
contained in this Agreement, or (ii) with respect to any liability of
Seller or Landau not expressly assumed by Purchaser.
(b) By Purchaser. Purchaser shall defend, indemnify and hold Seller and Landau
harmless from and against any and all claims, losses or liabilities
(including reasonable attorney fees, court costs and expenses of
investigation as determined by a court of competent jurisdiction), incurred
by Seller, Landau or any of their affiliates as a result of any breach of
Purchaser's representations, warranties or covenants contained in this
Agreement.
17. Registration Rights. At any time within one year from the date of each
issuance of shares to Seller pursuant to Section 4, Seller shall be entitled to
request Purchaser to register such shares under the Securities Act of 1933;
provided, however, that Purchaser shall only be required to register such shares
on a Form S-3 Registration Statement (or successor form).
18. Miscellaneous Provisions.
(a) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors and
assigns. No party shall assign its rights or obligations under this
Agreement to any third party without the prior written consent of the other
parties.
(b) Notices. All notices which are required or may be given pursuant to the
terms of this Agreement shall be in writing and shall be delivered
personally or by certified mail, return receipt requested, postage prepaid,
or sent by facsimile, with receipt confirmed, or sent by overnight delivery
service as follows:
If to Purchaser: Bioject Medical Technologies Inc.
Attn: Chief Executive Officer
0000 XX Xxxxxxxxxx Xx.
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000)000-0000
with copy to: Xxxxxx Xxxx LLP
Attn: Xxxxx Xxx Xxxxx
1600 Pioneer Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Facsimile: (000) 000-0000
If to Seller or Vitajet Corporation or
Landau: Xxxxxx Xxxxxx at
00000 Xxxxx Xxxx, Xxxxx 000 -or- 00 Xxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000 Xxxxxx Xxxxxx, XX
00000
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
Any of the addresses or facsimile numbers set forth above may be changed from
time to time by written notice from the party requesting the change.
Such notices and other communications shall for all purposes of this Agreement
be treated as being effective immediately if delivered personally, or five days
after mailing by certified mail, return receipt requested, first-class postage
prepaid, or upon confirmation of receipt of a notice sent by facsimile, or one
day after deposit for delivery by an overnight delivery service.
(c) Alterations and Waivers. The waiver, amendment or modification of any
provision of this Agreement or any right, power or remedy under this
Agreement, whether by agreement of the parties or by custom, course of
dealing or trade practice, shall not be effective unless in writing and
signed by the party against whom enforcement of such waiver, amendment or
modification is sought. No failure or delay by either party in exercising
any right, power or remedy with respect to any of the provisions of this
Agreement shall operate as a waiver of such provisions with respect to such
occurrences.
(d) Governing Law. This Agreement shall be construed, governed and enforced in
accordance with the laws of the state of Oregon, without regard to
principles concerning the conflict of laws.
(e) Severability. In the event any provision of this Agreement or the
application of any such provision shall be held to be prohibited or
unenforceable in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability. The remaining provisions of this Agreement shall remain
in full force and effect, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. The parties shall use their best
efforts to replace the provision that is contrary to law with a legal one
approximating to the extent possible the original intent of the parties.
(f) Exhibits. The exhibits that are attached to and referred to in this
Agreement are incorporated into and are a part of this Agreement.
(g) Integration and Entire Agreement. This Agreement and the exhibits and other
documents referred to in this Agreement set forth the entire understanding
between the parties and supersede all previous and contemporaneous written
or oral negotiations, commitments, understandings, and agreements relating
to the subject matter of this Agreement and merge all prior and
contemporaneous discussions between the parties. No party shall be bound by
any definition, condition, representation, warranty, covenant or provision
other than as contained in this Agreement.
(h) Counterpart and Headings. For the convenience of the parties, this
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument. All headings and captions are inserted for convenience
of reference only and shall not affect meaning or interpretation.
(i) Specific Performance. The parties acknowledge that damages would be an
inadequate remedy for any breach of the provisions of this Agreement. The
parties agree that, in the event of a violation of this Agreement, the
nonbreaching party shall have the right to obtain injunctive or other
similar relief, as well as any relevant damages, without the requirement of
posting bond or similar measures.
(j) Survival. All representations and warranties of the parties made in this
Agreement, as well as all obligations of the parties under this Agreement
which by their nature require performance following Closing, shall survive
the Closing.
(k) Joint and Several Liability. Seller and the Landau shall be jointly and
severally liable with respect to the obligations of Seller and Landau under
this Agreement.
(l) Bulk Sales Compliance. The parties waive compliance with the provisions of
any applicable Bulk Sales Law, and Seller and Landau hereby agree to
indemnify and hold Purchaser harmless with respect to any claims related to
the failure to comply with such law.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
PURCHASER: BIOJECT MEDICAL TECHNOLOGIES INC.
By: /s/ Xxxxx X'Xxxx
Xxxxx X'Xxxx
Chairman, President and
Chief Executive Officer
SELLER: Vitajet Corporation
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, President
LANDAU: Xxxxxx Xxxxxx
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Xxxx X. Xxxxxx
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LIST OF EXHIBITS
EXHIBIT A - ASSETS
EXHIBIT B - TAX ALLOCATION
EXHIBIT C - EMPLOYMENT AGREEMENT
EXHIBIT D - INTELLECTUAL PROPERTY
EXHIBIT E - CONTRACTS
