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AGREEMENT FOR THE SALE OF A BUSINESS AS A GOING CONCERN

Asset Purchase Agreement

AGREEMENT FOR THE SALE OF A BUSINESS AS A GOING CONCERN | Document Parties: ESCALON MEDICAL CORP You are currently viewing:
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ESCALON MEDICAL CORP

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Title: AGREEMENT FOR THE SALE OF A BUSINESS AS A GOING CONCERN
Date: 2/17/2009
Industry: Medical Equipment and Supplies     Sector: Healthcare

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EXHIBIT 10.4

31 December 2008

31 December 2008

BIOCODE-HYCEL FRANCE S.A.

and

BH Holdings

 

AGREEMENT FOR THE SALE OF A
BUSINESS AS A GOING CONCERN

 


 

 

2

 

Translation for information.

AGREEMENT FOR THE SALE OF A BUSINESS AS A GOING CONCERN

BETWEEN THE UNDERSIGNED:

1.

 

Biocode-Hycel France S.A. , a company organized under the laws of France having its registered office at Le Bassin 21320 Pouilly en Auxois, registered with the Trade and Companies Registry of Beaune under the number 328 517 685, with a share capital of 2,500,000.32, represented by Mr Roger Duggan, as President General Director, himself duly represented by Mr Alain Rousseau, duly authorized for the purpose of this Agreement,

Hereinafter referred to as the “ Seller ”,

AND

2.

 

BH Holdings , SAS, a company organized under the laws of France having its registered office at rue de Herhoui, ZI Le Chêne Vert 35650 Le Rheu, registered with the Trade and Companies Registry of Rennes under the number 509 488 169, with a share capital of 37,000, represented by Mrs Catherine Bolton, President, herself duly represented by Mrs Sandrine Nicoue, duly authorized for the purpose of this Agreement,

Hereinafter referred to as the “ Purchaser ”,

The Purchaser and the Seller being collectively referred to as the “ Parties ” and individually as a “ Party ”,

AND

3.

 

Escalon Medical Corp. , a company organized under the laws of Commonwealth of Pennsylvania having its registered office at 435 Devon Park Drive, Building 100, Wayne, Pennsylviania 19087, USA, represented by Mr Richard J. De Piano, President, himself duly represented by Mrs Sandrine Nicoue, duly authorized for the purpose of this Agreement,

Hereinafter referred to as the “ Guarantor ”,

AND

4.

 

Immunodiagnostic Systems Holdings Plc , a company organized under the laws of England having its registered office at 10 Didcot Way, Boldon Business Park, Boldon, Tyne and Wear NE35 9PD, United Kingdom, registered under the number 05146193, represented by by Mr Alain Rousseau, duly authorized for the purpose of this Agreement,

Hereinafter referred to as “ IDSH ”,

AND

5.

 

Avoxa , société d’exercice libéral à responsabilité limitée , with share capital of 738,740.00, having its registered office at 5 allée Ermengarde d’Anjou, ZA Atalante Champeaux CS 40 824 35 108 Rennes cedex 3, registered with the trade and companies registry of Rennes under number 403 177 637, represented by Mr Florian Bachelier,

Hereinafter referred to as the “ Escrow Agent ”.


 

 

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Translation for information.

RECITALS:

A.

 

The Seller operates a business as a going concern in Le Rheu and partly in Pouilly-en-Auxois relating to the development, manufacture and distribution of haematology and flame photometry instruments and reagents for haematology laboratories and blood banks as further described in section 2.2 (the “ Business ”).

 

B.

 

The Purchaser has carried out a due diligence of the legal, financial, technical and other documentation in relation to the Business as provided by Seller, a list of which is attached in Schedule B (the “ Documentation ”). Furthermore, an employee of the Purchaser has been placed with the Seller for the past few weeks preceding the Transfer Date to the date hereof to meet with the management of the Business to gather financial information and technical information relating to the description of the Products, as defined hereafter, and their manufacturing. Pursuant to such due diligence, the Purchaser has confirmed its interest in purchasing the Business.

 

C.

 

The Purchaser desires to purchase from the Seller and the Seller desires to sell to the Purchaser the Business upon the terms and subject to the conditions set forth in this agreement (the “ Agreement ”).

NOW, THEREFORE IT HAS BEEN AGREED AS FOLLOWS:

1.

 

DEFINITIONS

In addition to such terms defined elsewhere in this Agreement:

Affiliate ” means any entity controlling, controlled by, or under the same control as the Seller within the meaning of Article L.233-3 of the French Commercial Code.

Approval Date ” means the date on which the labour inspector ( inspecteur du travail ) will give its approval for the transfer of the Protected Employees in accordance with Article L. 1224-1 of the French Labour Code.

Business ” shall have the meaning set out in section 2.2.

Contracts ” shall mean the agreements listed in Schedule 2.3 entered into by the Seller for the operation of the Business.

Copyrights ” shall mean the copyrights described in Schedule 2.2.1 (e).

Damages ” shall mean any damages, losses, liabilities, fines, penalties, costs, or expenses suffered by a Party.

Domain Name ” shall mean the domain name registered with Oleane which can be accessed at the html address www.biocodehycel.com.

Employees ” shall mean the employees attached to the Business as listed in Schedule 6.6.1.

Governmental Authority ” shall mean any court or other judicial authority or governmental, administrative or regulatory body, department, agency, commission, authority or instrumentality.

IDSH Non-compete ” shall mean the non-competition and non solicitation agreement subject to English law entered into at the date hereof between IDSH and the Purchaser.


 

 

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Intangible Assets ” shall mean the intangible assets of the Business set forth in section 2.2.1.

Intellectual Property ” consists in the assets set out in sections 2.2.1 (b) to 2.2.1 (f).

Know-How ” shall mean the know-how described in Schedule 2.2.1 (d).

Lease ” shall mean the lease agreement entered into on 21 September 2005 between the Seller and the SCI du Chêne Vert located at Chemin de Carnac, l’Albaderaie, 56400 Ploemel for a duration of 9 years from 21 September 2005 until 20 September 2014, for the premises used for the Business situated at Le Rheu.

Liability ” shall mean any liability, indebtedness, obligation, expense, claim, loss, damage, deficiency, guaranty or endorsement of or by any person, accrued or unaccrued, due or to become due, liquidated or unliquidated.

Material Adverse Effect ” means: (1) anything which would substantially prohibit the Purchaser in producing the Products or selling the Products, or (2) anything that has the effect of causing a loss or damage to the Purchaser exceeding 10,000.

Patents ” shall mean the Patents described in Schedule 2.2.1 (b).

Products ” means the Instruments and Reagents described in Schedule 2.2.

Protected Employees ” means the protected employees ( salariés protégés ) listed in Schedule 6.6.4.

Tangible Assets ” shall mean the tangible assets of the Business set forth in section 2.2.2.

Trademarks ” shall mean the trademarks described in Schedule 2.2.1 (c).

Stock ” shall mean the stock of the Products and supplies used for the operation of the Business, an inventory of which has been carried out by both Parties, as set forth in Schedule 2.2.2 (b).

Working Day ” shall mean any day other than Saturday, Sunday or legal holiday in France, or other day on which commercial banking institutions in France are required to close.

2. DESCRIPTION AND SALE OF THE BUSINESS

2.1

 

Sale of the Business

 

 

 

The Seller hereby sells, transfers and delivers to the Purchaser, who accepts, the Business as described in section 2.2 under the terms and conditions hereof.

 

2.2

 

Description of the Business

 

 

 

With the exclusion of the items set out in section 2.2.3, the Business consists in the development, manufacture and distribution of the Products, as described in Schedule 2.2, for haematology laboratories and blood banks and comprises the following assets:

 

2.2.1

 

Intangible Assets:

 

(a)

 

the full clientele attached to the Business and the goodwill;

 

 

(b)

 

the Patents as described in Schedule 2.2.1 (b);

 

 

(c)

 

the Trademarks as described in Schedule 2.2.1 (c);


 

 

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(d)

 

the Know-How and all trade secrets and non-patented intellectual property as described in Schedule 2.2.1 (d);

 

 

(e)

 

the Copyrights, including computer software and programs, as described in Schedule 2.2.1 (e);

 

 

(f)

 

the Domain Name;

 

 

(g)

 

all rights and obligations relating to the assets mentioned above in paragraphs (a) to (f) and all information, files, records, data, plans and recorded knowledge, including customer and supplier lists, related to the Business.

 

2.2.2

 

Tangible Assets:

 

(a)

 

equipment and movable assets used for the operation of the Business, listed in Schedule 2.2.2 (a), and

 

 

(b)

 

the Stock as described in Schedule 2.2.2 (b).

 

2.2.3

 

Items excluded from the Business:

 

(a)

 

the after sale services to be provided by the Seller pursuant to the After Sale Services Agreement as defined hereafter on the territory of France, including the DOM-TOM, and

 

 

(b)

 

the right to the Lease, such Lease being terminated at the date hereof and the Purchaser entering into a new lease with the landlord of the premises at the date hereof.

 

2.3

 

Transfer of Contracts

 

 

 

In addition to the Business, the Seller hereby transfers to the Purchaser the Contracts, including all customers contracts, equipment leases and other contracts utilized in the conduct of the Business subject to the agreement of the other contracting parties as provided under section 5.7.

 

2.4

 

Excluded Liabilities

 

 

 

The Purchaser shall not be deemed to assume or otherwise be liable for any liabilities of the Seller or the Business other than as expressly set forth in this Agreement. The Seller shall retain (and the Purchaser shall not be obligated for) any and all liabilities of the Seller of any type that are not expressly assumed by the Purchaser (the “ Excluded Liabilities ”).

 

3.

 

PROPERTY AND ENJOYMENT

 

3.1

 

The Seller declares that it acquired the Business from Hycel further to the merger between the Seller and Hycel decided by the extraordinary shareholders’ meeting of 24 June 1993.

 

3.2

 

The transfer of the full ownership and enjoyment of the Business to the Purchaser, and the commencement of the use of its attached rights and prerogatives, shall be effective at the date hereof (the “ Transfer Date ”).

 

4.

 

PRICE AND PAYMENT TERMS

 

4.1

 

Purchase Price and Stock Price


 

 

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4.1.1

 

The sale of the Business, together with the transfer of the Contracts, is made in consideration of a price of 2,025,949 (the “ Purchase Price ”) allocated as follows:

 

 

(a)

 

Intangible Assets:

 

(i)

 

Patents: 1,600,000

 

 

(ii)

 

All other Intangible Assets other than Patents: 380,427

 

 

(b)

 

Tangible Assets with the exception of the Stock: 45,522

 

 

The above allocation of the Purchase Price is provided for the sole purpose of complying with Article L. 141-1 of the French Commercial Code but shall not give rise to any liability from either Party towards the other as regards such allocation notwithstanding any other valuation from an expert. As the Business is not isolated on the accounting level from the other activities carried on by the Seller, these financial items result from a good faith estimate established on the basis of the Business considered separately.

 

4.1.2

 

The sale of the Stock is made in consideration of a price of 1,572,051 (the “ Stock Price ”).

 

4.2

 

Payment of the Purchase Price and the Stock Price

 

4.2.1

 

The Purchase Price and the Stock Price shall be paid as follows:

 

 

(a)

 

25,000 at the date hereof, such sum to be allocated to the payment of the Stock Price;

 

 

(b)

 

the balance of the Purchase Price and the Stock Price, i.e. an aggregate amount of 3,573,000 shall be paid in four instalments, under the conditions provided hereafter, for the following amounts: 198,000 within 18 months from the Transfer Date, 1,000,000 within 30 months from the Transfer Date, 1,000,000 within 36 months from the Transfer Date, and 1,375,000 within 48 months from the Transfer Date, such sums to be allocated first to the payment of the Stock, then of the Tangible Assets and finally of the Intangible Assets.

4.2.2

 

Interest

 

 

(a)

 

Interest will accrue on the outstanding amount of the Purchase Price and the Stock Price at an interest rate of 7% per year on the basis of the actual days elapsed and a 365 day year, as from the Transfer Date.

 

 

(b)

 

Accrued interest is payable in arrears by the Purchaser for the first time on 30 November 2009 and continuing thereafter every 6 months, on the last Working Day in May and November.

4.2.3

 

Prepayment

 

 

 

The Purchaser shall be entitled at any time to prepay in full or in part the balance outstanding of the Purchase Price and the Stock Price (the principal amount of the Purchase Price and/or Stock Price being prepaid being hereafter referred to as the “ Prepaid Amount ”). Simultaneously upon payment by the Purchaser of any Prepaid Amount, the Purchaser shall pay to the Seller, in addition to the interest provided under section 4.2.2 (a), the following prepayment indemnities:

 

 

(a)

 

if the Prepaid Amount is paid within 12 months from the Transfer Date, the Seller shall be entitled to a prepayment indemnity equal to 6% of the Prepaid Amount,


 

 

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(b)

 

if the Prepaid Amount is paid between the 13 th and the 24 th month from the Transfer Date, the Seller shall be entitled to a prepayment indemnity equal to 12% of the Prepaid Amount,

 

 

(c)

 

if the Prepaid Amount is paid after the 24 th month from the Transfer Date, the Seller shall be entitled to a prepayment indemnity equal to 18% of the Prepaid Amount.

 

 

 

Notwithstanding the above, the Purchase Price and the Stock Price shall in all circumstances be fully repaid at the latest on the dates provided in section 4.2.1 (b).

4.2.4

 

Defaults

 

 

 

Any outstanding amounts due under this section 4.2 shall become immediately and as of right payable by the Purchaser in principal, accrued interest and accessory charges, in case one of the following events occurs (an “ Event of Default ”):

 

 

(a)

 

the Purchaser fails to pay any amount payable by it under this Agreement within 15 days after notice from the Seller that such amount is past due,

 

 

(b)

 

in case of any other default by the Purchaser of any of its obligations under this Agreement which is not remedied within 15 Working Days from notice to this effect by the Seller,

 

 

(c)

 

the Purchaser ceases the operation of the Business, for any reason whatsoever including, without limitation, the sale of the Business or the dissolution of the Purchaser;

 

 

provided that an Event of Default shall not affect the right of the Seller to the additional amounts to be paid in accordance with section 4.2.3 depending on the date of full payment of the Purchase Price and Stock Price.

 

4.2.5

 

Set off

 

 

 

The obligations of the Purchaser under this section 4.2 are unconditional and irrevocable and cannot be set off against any debt that the Purchaser would hold against the Seller, unless otherwise stated herein and the Purchaser hereby waives its rights under Articles 1290 to 1299 of the French Civil Code for this purpose.

 

4.2.6

 

Guarantee

 

 

 

As a guarantee of the full payment of the Purchase Price and the Stock Price:

 

(a)

 

the Seller shall benefit from the seller’s right granted under Article L. 141-5 of the French Commercial Code on the Business and all the rights and assets relating to the Business and shall be entitled to the action for rescission ( action résolutoire ) provided under Article L. 141-6 of the French Commercial Code, and

 

 

(b)

 

the Guarantor grants to the Seller the guarantee as provided under section 13.

 

5.

 

CHARGES AND CONDITIONS OF THE SALE OF THE BUSINESS

The present sale is agreed by the Parties under the ordinary and legal charges and conditions, including the following:

5.1

 

Condition of the Business


 

 

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5.1.1

 

The Purchaser purchases the Business in the state in which it is at the Transfer Date, without being entitled to claim for any indemnity nor any decrease of the Purchase Price for any reason whatsoever, including latent defects ( vices cachés ) in accordance with Articles 1641 to 1649 of the French Civil Code, except under the terms and conditions provided under section 8 and under Article 141-3 of the French Commercial Code in relation to the statements to be provided pursuant to Article 141-1 of the French Commercial Code.

 

5.1.2

 

Subject to anything to the contrary herein, the Seller shall bear all costs and charges relating to the operation of the Business prior to the Transfer Date and the Purchaser shall bear all costs and charges relating to the operation of the Business as from the Transfer Date.

 

5.2

 

Accounting books

 

5.2.1

 

The Seller and the Purchaser have, in accordance with Article L. 141-2 of the French Commercial Code, reviewed and signed the monthly statement of turnover from 1 st January 2008 to 30 November 2008, in accordance with Article L. 141-2 of the French Commercial Code, a signed copy of which is delivered to each Party at the date hereof. However, as the Business is not isolated on the accounting level from the other activities carried on by the Seller, the Seller is unable to present the accounting books separately for the Business for the last three financial years, in accordance with Article L. 141-2 of the French Commercial Code, and the Purchaser expressly releases the Seller from such obligation.

 

5.2.2

 

In accordance with Article L. 141-2 of the French Commercial Code, the Seller shall hold at the disposal of the Purchaser its accountancy books relating to the Business for a period of three years as from the Transfer Date.

 

5.3

 

Taxes

 

 

 

The Purchaser undertakes to pay, as from the Transfer Date, all taxes, all contributions and other charges of any nature relating to the operation of the Business from and after the Transfer Date, even in the case where such taxes, contribution and other charges are in the name of the Seller, it being stated that the amount of business tax ( taxe professionnelle ) owed for the year 2008 in connection with the Business shall be paid by the Seller.

 

5.4

 

Insurance

 

5.4.1

 

The Purchaser shall at its sole discretion carry on or terminate the insurance contracts listed in Schedule 5.4.1 entered into by the Seller in relation to the operation of the Business and transferred to the Purchaser as from the Transfer Date in accordance with Article L. 121-10 of the French Insurance Code.

 

5.4.2

 

The Seller shall not be liable for subscribing any insurance policies required to cover, as from the Transfer Date, any risks resulting from the operation of the Business.

 

5.5

 

Employees

 

5.5.1

 

All or part of the employment agreements of the Employees shall be transferred to the Purchaser as stated in Schedule 6.6.1 at the date hereof in accordance with Article L. 1224-1 of the French Labour Code, with the exception of the Protected Employees listed in Schedule 6.6.4 which shall be transferred on the Approval Date.

 

5.5.2

 

The Purchaser shall be liable for any obligations entered into with the Employees, for the part of their employment agreement transferred to the Purchaser as stated in Schedule 6.6.1, in accordance with the French labour Code, as from the Transfer Date (or from the Approval Date for the Protected Employees) including, without limitation, for the payment to the


 

 

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Translation for information.

 

 

Employees of their salaries, paid vacation, rights under their employment agreements (including, if any, any premiums or contributions in kind), which would be accrued and/or payable as from the Transfer Date (or from the Approval Date for the Protected Employees) and shall bear all social contributions in relation thereto.

 

5.5.3

 

The Seller shall bear for the period ending on the Transfer Date (or the Approval Date, for Protected Employees), the salaries, paid vacation, rights under the employment agreements of the Employees (including, if any, any premiums or contributions in kind) and any sums due in this respect not paid directly to the Employees prior to the Transfer Date (or the Approval Date, for Protected Employees) and consequently payable by the Purchaser shall be paid by the Seller upon written demand from the Purchaser.

 

5.5.4

 

The Seller agrees with the Purchaser that the Protected Employees, subject to their consent, shall be made available to the Purchaser by the Seller between the date hereof and the Approval Date and that the Purchaser shall consequently pay to the Seller in consideration of such availability the remuneration paid to such Protected Employees and the related social contributions between the date hereof and the Approval Date.

 

5.6

 

Lease

 

5.6.1

 

The guarantee deposit granted by the Seller to the landlord under the Lease, i.e. an amount of 55,000, shall be assigned by the Seller to the Purchaser, such assignment to be notified by process server to the landlord in accordance with Article 1690 of the French Civil Code.

 

5.6.2

 

The Purchaser has agreed to enter into a sub-lease agreement at the date hereof with the Seller for part of the premises used for the Business in Le Rheu, such sub-lease agreement being authorised by the landlord as provided under the new lease entered into between the Seller and the landlord at the date hereof.

 

5.6.3

 

The Seller and the Purchaser acknowledge that part of the Business was operated, prior to the Transfer Date, in the premises owned by the Seller in Pouilly-en-Auxois, but that the Purchaser shall not maintain any operation of the Business in such premises after the Transfer Date, unless as otherwise stated in the Transition Manufacturing Agreement.

 

5.6.4

 

The Seller and the Purchaser acknowledge that part of the Business was operated, prior to the Transfer Date, in the premises leased by the Seller in Massy, pursuant to a lease agreement dated 1 st July 1997 and renewed on 8 August 2006 between the Seller and Société Civile de Placement Immobilier having its registered office at 39 rue de la Bienfaisance, 75008 Paris for a 9-year period ending on 7 August 2015. As these premises are mainly used for the activities of the Seller other than the Business, such a lease shall not be transferred to the Purchaser as a consequence of the sale of the Business. The Seller agrees, however, to sub-let part of these premises to the Purchaser in accordance with the sub-letting agreement to be entered into between the Parties upon receipt of the landlord’s consent.

 

5.7

 

Contracts

 

5.7.1

 

Transfer of Contracts

 

 

 

The Purchaser shall take over the Contracts, including all obligations relating thereto, with effect from the Transfer Date, except for those contracts in respect of which the other contracting party’s consent is required and has not been obtained at the date hereof, provided that:


 

 

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Translation for information.

 

 

(a)

 

the Seller shall make its best efforts until 1 st March 2009 to obtain the consent from the contracting parties and the Purchaser shall cooperate with the Seller for this purpose,

 

 

(b)

 

until such consent is obtained (or until 1 st March 2009, as appropriate) the Purchaser shall, for its own benefit and to the extent permitted by the contracts, perform on behalf of the Seller (but at the Purchaser’s expense) all of the obligations of the Seller arising out of the contracts after the Transfer Date (including payment obligations),

 

 

(c)

 

until such consent is obtained (or until 1 st March 2009, as appropriate) the Seller shall hold any monies, goods or other benefits received under such contracts for the Purchaser and shall forthwith upon receipt of the same pay or deliver to the Purchaser such monies, goods and other benefits, and

 

 

(d)

 

until such consent is obtained (or until 1 st March 2009 as appropriate) the Seller shall give all reasonable assistance to the Purchaser to enable it to enforce the rights of the Seller under such contracts in accordance with the Purchaser’s instructions,

 

 

(e)

 

if on 1 st March 2009, such consent has not been obtained, the contracts shall be regarded as not having been transferred to the Purchaser without any liability from the Seller in connection therewith and the Seller shall be responsible for carrying on or terminating such contracts with the contracting party at its sole discretion.

5.7.2

 

Supply contracts

 

 

 

The Contracts and the Business do not include the benefit and charge of supply contracts relating to water, electricity, telephone, etc. which are not transferred to the Purchaser. However, the Seller will make its best efforts to assist the Purchaser in obtaining transfer to it of the telephone numbers used for the Business and listed in Schedule 5.7.2.

 

5.8

 

Trade Receivables

 

 

 

The Seller owns the trade receivables from its customers listed in Schedule 5.8 in relation to the Business (the “ Trade Receivables ”) and assigns to the Purchaser the Trade Receivables through a separate receivables assignment agreement which is entered into by the Parties at the date hereof.

 

5.9

 

Work in Progress

 

5.9.1

 

Subject to section 5.7 and in consideration of the amount of the Purchase Price, all contracts and customers’ orders executed but not invoiced and performed in whole or in part by the Seller prior to the Transfer Date shall be invoiced by the Purchaser and the Purchaser shall keep the proceeds thereof.

 

5.9.2

 

As a result of section 5.9.1, the Seller shall have no liability towards the Business’ customers for the contracts and customers’ orders invoiced by the Purchaser and the Purchaser shall indemnify and hold harmless the Seller for any loss and expenses incurred by any claim from a customer against the Seller in relation to such contracts and customers’ orders, including reasonable legal fees, in accordance with section 8 hereafter.

 

5.9.3

 

All costs relating to contracts and customers’ orders executed and performed by the Seller, in whole or in part, prior to the Transfer Date shall be borne by the Seller and all costs relating to contracts and customers’ orders executed by the Seller prior to the Transfer Date and performed by the Purchaser, in whole or in part, after the Transfer Date shall be borne by the Purchaser.


 

 

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5.10

 

Other Agreements

 

5.10.1

 

The Seller and the Purchaser shall negotiate in good faith and enter into, within 15 Working Days from the date hereof, a transition manufacturing agreement in relation to the manufacture of the Instruments, as described in Schedule 2.2 (the “ Transition Manufacturing Agreement ”), based on the form of the draft agreement attached hereto in Schedule 5.10.1.

 

5.10.2

 

The Seller and the Purchaser shall negotiate in good faith and enter into, within 15 Working Days from the date hereof, an after sale services agreement in relation to the after sale services granted to customers having purchased Products prior to the Transfer Date or who will purchase Products after the Transfer Date (the “ After-Sale Services Agreement ”), based on the heads of terms attached hereto in Schedule 5.10.2.

 

5.10.3

 

The Seller and the Purchaser shall negotiate in good faith and enter into, within 15 Working Days from the date hereof, a manufacturing agreement relating to the manufacturing of reagents for IDS-iSys Analyzer based on the form of the draft agreement attached hereto in Schedule 5.10.3.

 

5.11

 

Information Technology

 

5.11.1

 

The Purchaser shall grant access to the Seller to the servers transferred to the Purchaser as part of the Business for a period of three months as from the Transfer Date during normal working hours, for the purpose of copying all data relating to the activities of the Seller other than the Business.

 

5.11.2

 

The Seller shall bear all expenses in relation to the copying of the data as provided in section 5.11.1 and shall indemnify and hold the Purchaser harmless in case of any damage incurred by its access to the Purchaser’s servers for the purpose of section 5.11.1.

 

5.12

 

Trade Name

 

5.12.1

 

The Seller and the company incorporated under Belgian law, Biocode-Hycel, sell at the date hereof by separate agreement the Benelux trademark Biocode-Hycel Biotechnology-Diagnostics No.00981171 filed on 9 January 2001 for the classes 1, 5, 9, 10, 11 et 42 and the international trademark Biocode-Hycel Biotechnology-Diagnostics filed on 6 July 2001 under No. 765299 for France and Spain for the classes 1, 5, 9, 10,11 et 42, such trademark having been limited for France to class 5.

 

5.12.2

 

The Purchaser hereby authorises the Seller to use “Biocode Hycel” as a trade name and in its corporate name as “Biocode Hycel France S.A.” for a period of three months after the date hereof. During the same period, e-mails addressed to the Seller and its employees on the e-mail accounts biocodehycel.com shall be transferred to a server of the Seller.

 

5.13

 

Domain Name

 

5.13.1

 

The sale of the Domain Name shall be notified by the Seller to the hosting company of the Domain Name, Oléane, within 5 Working Days from the date hereof.

 

5.13.2

 

The separation of the web sites www.biocodehycel.com and www.idsplc.com shall occur within 10 Working Days from the date hereof and each Party shall cooperate for this purpose.

 

5.13.3

 

Notwithstanding the foregoing, the Purchaser undertakes to maintain the sections “Immunology”, “Biochemistry”, “3x3” or “Biochimie” on the website www.biocodehycel.com and to set up a link to address all Internet users trying to access these sections to the website of the Seller www.idsplc.com during a period of 45 Working Days from the date hereof.


 

 

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Translation for information.

5.14

 

Products Declarations

 

 

 

The Seller undertakes to provide to the Purchaser within 5 Working Days from the date hereof the Seller’s complete file with respect to all CE mark declarations relating to the Products.

 

6.

 

REPRESENTATIONS AND WARRANTIES OF SELLER

The Seller hereby make and give to the Purchaser as at the date of this Agreement the representations and warranties as set forth in this section 6.

6.1

 

Ownership of the Business

 

6.1.1

 

The Seller is the lawful owner of the Business and has full legal right, power and authority to sell, assign and transfer the Business in accordance with the terms of this Agreement.

 

6.1.2

 

The Seller is the owner of the assets and rights comprised in the Business, as described in section 2.2, and neither such assets and rights nor the Business itself are encumbered by any real or personal right, easement or security.

 

6.1.3

 

The purchased assets described in section 2.2 constitute all of the assets necessary for the operation of the Business as it is operated at the date hereof, subject to the provisions of section 5.7.

 

6.2

 

Organization, Authority and Enforceability

 

 

 

The Seller is a company duly organized and validly existing under the laws of France. The Seller has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The entering into this Agreement and the consummation of the transactions provided for hereby have been aut


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