Exhibit 10.79
ASSET PURCHASE
AGREEMENT
This Asset Purchase Agreement (the
“ Agreement ”) is made and entered into as of
September 19, 2006 by and among Molecular Imaging Sorrento
Valley LLC, a Delaware limited liability company (“ PET
LLC ”), Molecular Imaging Corporation, a Delaware
corporation (“ MIC ”), and The Regents of the
University of California, a California corporation, on behalf of
UCSD Medical Group (“ UCSD ”), with reference to
the following facts:
A. The parties have entered into an
Asset Purchase Agreement dated as of August 15, 2003 (the
“ 2003 Asset Purchase Agreement ”) pursuant to
which UCSD has purchased from PET LLC a CTI HR+ PET Scanner and
certain tenant improvements relating thereto (the “ PET
Scanner ”) located at the at 11388 Sorrento Valley Road,
San Diego, California 92121 (the “ Center
”);
B. UCSD and PET LLC have entered
into an Equipment Sublease Agreement dated August 15, 2003, as
modified by the term sheet dated September 24, 2004 (the
“ PET Equipment Sublease ”), pursuant to which
UCSD subleases the PET Scanner to PET LLC;
C. UCSD and PET LLC have entered
into a Professional Services Agreement dated August 15, 2003
(the “ Professional Services Agreement ”)
pursuant to which UCSD provides certain reading services at the
Center.
D. MIC has entered into an Agreement
of Sub-Lease dated February 24, 2006 (the “ Center
Sublease ”) with Siemens Medical Solutions USA, Inc.
(“ Siemens ”) pursuant to which PET LLC uses
space at the Center;
E. PET LLC desires to sell, and UCSD
desires to purchase, the PET Scanner and related equipment, and the
parties desire to transfer all of the assets required for operation
of the Center to UCSD, on the terms and conditions set forth
herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Basic Transaction
.
1.1 Purchase and Sale of PET
Assets . On and subject to the terms and conditions of this
Agreement, UCSD agrees to terminate the PET Equipment Sublease and
to purchase from PET LLC, and PET LLC agrees to sell, transfer,
convey, and deliver to UCSD at the Closing, all of its right,
title, and interest in and to (i) the PET Scanner and related
assets (collectively, the “ PET Acquired Assets
”) listed in Exhibit “A” ,
(ii) all business and financial records associated with the
PET business located at the Center and appropriate and necessary
for the continued operation of the PET Scanner, and (iii) any
and all assignable customer contracts and related
goodwill.
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1.2 Assumption of PET
Liabilities . UCSD shall not assume and shall under no
circumstances be responsible for any obligation or liability of PET
LLC with respect to and/or arising out of the PET Acquired Assets
before the Closing Date. UCSD shall assume all obligations and
liabilities arising out of the PET Acquired Assets and the Center
on and after the Closing Date.
1.3 Accounts Receivable/Accounts
Payable . Subject to PET LLC’s compliance with
Section 1.6, below, PET LLC shall retain all cash, current
outstanding accounts receivable (the “ PET AR ”)
and accounts payable obligations (the “ PET AP
”) of PET LLC as of the Closing Date. PET LLC shall bill and
collect for all outstanding PET AR and scans performed prior to the
Closing Date, and PET LLC shall be solely responsible for the
payment of all PET AP accrued prior to the Closing Date; provided,
however, the PET AP shall not include any amounts owed by PET LLC
to UCSD, including, without limitation, amounts owed under the PET
Equipment Sublease or the Professional Services Agreement. After
the Closing Date, PET LLC shall have no obligations to pay any
amounts owed by PET LLC to UCSD relating to the Center.
1.4 Termination of Agreements
. Effective upon the Closing, UCSD and PET LLC agree that the 2003
Asset Purchase Agreement, PET Equipment Sublease, and the
Professional Services Agreement shall be terminated, and no party
shall have any further obligations to the other under such
agreements, including, without limitation, any obligation by PET
LLC to pay any amounts of rent, additional rent, or any reading
fees.
1.5 Termination and Transfer of
Center Sublease. At the Closing, MIC shall deliver a document,
reasonably satisfactory to UCSD and MIC, executed by Siemens,
pursuant to which Siemens agrees to terminate the Center
Sublease.
1.6 Adherence to Cash
Disbursement Schedule . From and after July 15, 2006 and
until the Closing Date, PET LLC shall have adhered to the Cash
Disbursement Schedule (the “ Cash Adherence Schedule
”) attached to the Term Sheet dated August 28, 2006
between the parties.
1.7 Mutual Releases. The
parties intend the transaction contemplated in this Agreement to be
constitute a full and complete settlement and release of all
historical obligations related to the PET Acquired Assets and the
Center. Effective upon the Closing, the parties agree as
follows:
(a) PET LLC and MIC Release .
Each of PET LLC and MIC releases and discharges UCSD and its past
and present employees, officers, agents, and attorneys from any and
all liabilities, claims, loss, damages, defenses, fees and costs
(including costs of suit and attorneys’ fees and expenses) of
whatever nature, character, type, or description, whether known or
unknown, existing or potential, matured or unmatured, liquidated or
unliquidated, direct or consequential,
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suspected or unsuspected, or
foreseen or unforeseen, asserted in or relating to the Center,
including, without limitation, the 2003 Asset Purchase Agreement,
the PET Equipment Sublease, the Professional Services Agreement and
any and all agreements or documents related thereto.
(b) UCSD releases and discharges
each of PET LLC and MIC, and their respective past and present
employees, officers, directors, members, parents, subsidiaries,
agents and attorneys, from any and all liabilities, claims, loss,
damages, defenses, fees and costs (including costs of suit and
attorneys’ fees and expenses) of whatever nature, character,
type, or description, whether known or unknown, existing or
potential, matured or unmatured, liquidated or unliquidated, direct
or consequential, suspected or unsuspected, or foreseen or
unforeseen, asserted in or relating to the Center, including,
without limitation, the 2003 Asset Purchase Agreement, the PET
Equipment Sublease, the Professional Services Agreement and any and
all agreements or documents related thereto
(c) California Civil Code
Section 1542 .
The parties each acknowledge,
warrant, and represent that they have been advised by their
respective attorneys concerning, and that they are familiar with,
section 1542 of the California Civil Code (“Section
1542”), which provides:
A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
In waiving the provisions of
Section 1542, the parties each acknowledge that they may have
sustained damages, losses, costs, or expenses that presently are
unknown and unsuspected, and that such damages, losses, costs, or
expenses as may have been sustained may give rise to additional
damages, losses, costs, or expenses in the future. The parties
further acknowledge that they have negotiated this Agreement taking
into account such presently unsuspected and unknown damages,
losses, costs, and expenses, and the parties expressly waive any
and all rights that they have under Section 1542 or under any
other state or federal statute, rule, or common law principle, in
law or in equity, of similar effect.
1.8 PET LLC Employees. The
parties shall coordinate an offer of employment (permanent or
temporary) from UCSD to the Center’s Director and PET
Technologist. At the request of MIC, UCSD shall enter into a
mutually agreeable arrangement to allow the PET Technologist to
work for MIC outside of the Center as scheduling
permits.
1.9 Transition Support . MIC
and PET LLC shall provide a commercially reasonable level of
management support to assist in the transition of the Center
operations to UCSD both prior to and following the Closing;
provided, however, such support shall not include the use of the
licenses, permits or billing numbers of PET LLC.
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1.10 Contingent Payment. For
each of the two (2) years beginning one (1) year from the
first day of the first month after the Closing Date, UCSD shall pay
MIC, or its successor or designee, (a) twenty percent
(20%) of the amount of annual collected revenues derived from
the operation of PET imaging at the Center which exceeds
$1,500,000, or (b) if applicable and if larger than the amount
calculated under (a) above, fifteen percent (15%) of the
amount of annual collected revenues derived from the operation of
both PET and PET/CT imaging at the Center which exceeds $2,000,000;
provided, however, that UCSD shall retain an amount equal to the
sum of the amount of unpaid professional fees owed by PET LLC to
UCSD under the Professional Services Agreement as of the Closing
Date, and the unpaid amounts owed by PET LLC under the PET
Equipment Sublease as of the Closing Date, prior to any payment
hereunder; and provided further, that for purposes of calculating
revenues resulting from UCSD research studies, each scan performed
shall be recognized at $1300 per scan. UCSD shall maintain separate
books of account relating to revenues at the Center in accordance
with generally accepted accounting principles, and shall collect
revenues in normal course so as not to deprive MIC of the benefit
of any contingent payment provided herein. MIC or its designee or
assignee shall have the right, at its own expense (unless such
audit results in not less than $10,000 in additional amounts to be
paid MIC, in which event UCSD shall pay the reasonable costs of
such audit), to have an auditor of its own selection, examine at a
time reasonably acceptable to UCSD, during normal business hours
but not more than once each calendar year, the relevant books and
records of account of UCSD, to determine whether appropriate
accounting has been made under the Section 1.10.
1.11 Right of First
Offer.
(a) At any time within a three
(3) year period following the Closing Date, if UCSD or any of
it
