Exhibit 10.1
ASSET PURCHASE
AGREEMENT
by and
between
FISCHER IMAGING
CORPORATION
as
“Seller”
and
JN PROPERTIES,
LLC
as
“Buyer”
Dated as of November 1,
2006
TABLE OF CONTENTS
|
ARTICLE I DEFINITIONS
|
4
|
|
1.1
|
Defined Terms
|
4
|
|
ARTICLE II PURCHASE AND SALE
AGREEMENT
|
8
|
|
2.1
|
Transfer of
Assets
|
8
|
|
2.2
|
Assumed
Liabilities
|
9
|
|
2.3
|
Purchase Price
|
9
|
|
ARTICLE III
CLOSING
|
10
|
|
3.1
|
Closing
|
10
|
|
3.2
|
Conveyances at
Closing
|
10
|
|
3.3
|
Transaction
Expenses
|
11
|
|
3.4
|
Transfer Taxes
|
11
|
|
3.5
|
Other
Closing Matters
|
11
|
|
ARTICLE IV REPRESENTATIONS AND
WARRANTIES OF SELLER
|
11
|
|
4.1
|
Organization and Authorization
of Seller
|
11
|
|
4.2
|
No
Violation
|
12
|
|
4.3
|
Governmental Consents and
Approvals
|
12
|
|
4.4
|
Intellectual
Property
|
12
|
|
ARTICLE V REPRESENTATIONS AND
WARRANTIES OF BUYER
|
13
|
|
5.1
|
Organization of
Buyer
|
13
|
|
5.2
|
Authorization
|
13
|
|
5.3
|
Governmental Consents and
Approvals
|
13
|
|
5.4
|
No
Violation
|
13
|
|
5.5
|
Financial
Capacity
|
14
|
|
ARTICLE VI ADDITIONAL
COVENANTS OF SELLER
|
14
|
|
6.1
|
Maintenance of Business Prior
to Closing
|
14
|
|
6.2
|
Investigation by
Buyer
|
14
|
|
6.3
|
Consents and Reasonable
Efforts
|
15
|
|
ARTICLE VII CONDITIONS TO
SELLER’S OBLIGATIONS
|
15
|
|
7.1
|
Entry
of Sale Approval Order
|
15
|
|
7.2
|
No
Order Enjoining Sale
|
15
|
|
7.3
|
Representations, Warranties
and Covenants
|
16
|
|
ARTICLE VIII CONDITIONS TO
BUYER’S OBLIGATIONS
|
16
|
|
8.1
|
Entry
and Finality of Sale Approval Order
|
16
|
|
8.2
|
Representations, Warranties
and Covenants
|
16
|
|
8.3
|
Consents
|
16
|
|
8.4
|
No
Proceedings or Litigation
|
16
|
|
8.5
|
Instruments of Conveyance,
Certificates
|
17
|
|
ARTICLE IX OTHER
AGREEMENTS
|
17
|
|
9.1
|
Employee
Matters
|
17
|
|
9.2
|
Risk
of Loss
|
17
|
|
9.3
|
Consents to
Assignment
|
17
|
2
|
ARTICLE X MISCELLANEOUS
|
18
|
|
10.1
|
Termination
|
18
|
|
10.2
|
In the
Event of Termination; Remedies
|
18
|
|
10.3
|
Assignment;
Successors
|
19
|
|
10.4
|
Notices
|
19
|
|
10.5
|
Choice
of Law
|
20
|
|
10.6
|
Entire
Agreement; Amendments and Waivers
|
20
|
|
10.7
|
Construction
|
21
|
|
10.8
|
Third
Party Beneficiaries
|
21
|
|
10.9
|
No
Waiver
|
21
|
|
10.10
|
Multiple
Counterparts
|
21
|
|
10.11
|
Invalidity
|
21
|
|
10.12
|
Publicity
|
22
|
|
10.13
|
Further
Assurances
|
22
|
|
10.14
|
Access
to Books and Records
|
22
|
|
10.15
|
Cumulative
Remedies
|
22
|
|
10.16
|
Termination of Covenants,
Representations, and Warranties
|
22
|
|
10.17
|
No
Impediment to Liquidation
|
22
|
|
10.18
|
Representation by Counsel;
Mutual Negotiation
|
23
|
3
ASSET PURCHASE
AGREEMENT
This Asset
Purchase Agreement (this “ Agreement ”), dated
as of November 1, 2006, is by and between JN Properties, LLC,
a Colorado limited liability company (“ Buyer
”), and Fischer Imaging Corporation, a Delaware corporation
(“ Seller ”).
R E C I T A L S
:
Seller engages in
the design, manufacture, sale, distribution, marketing, technical
support and warranty and post-warranty repair of the Product Lines
defined below (the “ Business ”).
This Agreement contemplates a transaction in
which Buyer will purchase from Seller certain assets of the
Business. Specifically, Buyer will purchase the
VersaRad-A and VersaRad-D systems (the “ VersaRad
Line ”), EPX-60 Single Plane EP Imaging System, the SPX
Surgical Imaging System, EP60 2 , and
Tangent tables (the “ EPX/SPX Line ”) and Bloom
Electrophysiology Stimulator (the “ Bloom Line
”) (collectively the “ Product Line ”)
subject to the terms and conditions of this Agreement, including
its provisions regarding the assignment of liabilities.
AGREEMENT
NOW, THEREFORE , in
consideration of the foregoing and the mutual covenants and
promises contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
1.1
Defined Terms.
As used herein,
the terms below shall have the following meanings:
Affiliate has the
same meaning as set forth in the Bankruptcy Code, 11 U.S.C. §
101(2).
Agreement has the
meaning set forth in the preface above.
Acquired Assets
means all of Seller’s right, title and interest in and to the
Data, the Deliverables, the Assumed Executory Contracts, the
Equipment, the Intellectual Property and the Inventory.
Assumed Executory
Contracts means the Contracts and leases set forth on
Schedule 1.1 (Assumed Executory Contracts) attached
hereto.
Assumed Liabilities
means the liabilities and obligations of or relating to the Product
Line (which may be trade payable liabilities and include the
warranty obligations relating to the twenty Bloom Units retained by
Buyer) specifically set forth on Schedule 1.1 (Assumed
Liabilities) attached hereto.
4
Bankruptcy Case
means the case, if necessary, filed by Debtor in the Bankruptcy
Court for the District of Colorado.
Bankruptcy Code
means the United States Bankruptcy Code, 11 U.S.C.
§ 101 et seq.
Bankruptcy Court
means the United States Bankruptcy Court for the District of
Colorado.
Bankruptcy
Schedules means the Seller’s Schedules filed
in the Bankruptcy Case.
Bloom Line has the
meaning set forth in the recitals above.
Business has the
meaning set forth in the recitals above.
Business Day means
any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of Colorado or is a day on
which banking institutions located in such state are authorized or
required by law or other governmental action to close.
Buyer has the
meaning set forth in the preface above.
Cash Purchase Price
has the meaning set forth in § 2.3 (a) below.
Closing has the
meaning set forth in § 3.1 below.
Closing Date
has the meaning set forth in § 3.1 below.
Confidentiality
Agreement means the Confidentiality Agreement dated as
of April 18, 2006 by and between the Seller and the Buyer.
Data means
historical Product Line information including sales history,
inventory history, product approved part list matched to approved
vendor list, bills of material, warranty and repair history, price
lists, end-user information, pricing and cost information, and
business and marketing plans and proposals to the extent available
under Seller’s document retention program and such other
information as Buyer may reasonably request which relates to the
Product Line but excluding (i) data so commingled with
Seller’s other data such that it cannot be extracted without
unreasonable expense or (ii) data obtained from third Persons
subject to a confidentiality agreement or other applicable law
restricting Buyer’s access to such data and such Person has
refused to consent to the transfer of such data to Buyer.
Deferred Purchase
Price has the meaning set forth in § 2.3 (b)
below.
Deliverables means
a copy (in accessible electronic or hard copy form) of the
following:
(a)
all issued patent certificates and files for all issued patents and
patent applications for the patents identified on Schedule 1.1
(IP-Transferred Patents) together with files for all
reissuances, continuations-in-part, revisions, extensions,
reexaminations and improvements thereof; all patent disclosure
documentation for the patents and patent applications on
Schedule 1.1
5
(IP-Transferred
Patents) and for all reissuances, continuations-in-part,
revisions, extensions, reexaminations and improvements thereof;
(b)
all issued registration certificates (or to the extent accessible
in Seller’s possession use or control, the original
certificates) for the trademarks and service marks set forth on
Schedule 1.1 (IP-Transferred Trademarks) together with the
application files and any trademark searches thereof;
(c)
all documents and/or files regarding the design, development and
improvement of the packaging trade dress for the Product
Line;
(d)
all copyrightable works of authorship (including web pages,
computer software source and object code, manuals and end
user-documentation, and to the extent accessible and in
Seller’s possession, use or control, a master copy thereof),
and copyright application files, copyright registration and renewal
certificates, if any, as set forth on Schedule 1.1
(IP-Copyrights) ;
(e)
all mask works, if any, and all application files and registration
certificates thereof, if any;
(f)
all documents and/or files, if any, of Seller’s trade
secrets;
(g)
all documents and/or files containing the proprietary confidential
business information as defined in subparagraph (b) of the
definition of “Intellectual Property” below;
(h)
all documents and/or files containing any other Intellectual
Property;
(i)
all equipment warranties relating to the Equipment and Product
Line, if any; and
(j)
all manuals relating to Intellectual Property.
Deposits shall mean
the good faith deposits previously paid to Seller by Buyer in the
aggregate amount of $59,000.00.
Encumbrance means
any pledge, lien, charge, right of others, sublease, easement,
title defect, mortgage, license, encumbrance, security interest and
other adverse claim or interest of any kind or nature whatsoever,
other than the liens of taxing authorities that are not properly
due and payable.
Environmental Laws
shall mean all applicable local, state and federal statutes and
regulations relating to the protection of human health or the
environment, as the foregoing are enacted and in effect prior to
the Closing Date.
EPX/SPX Line has
the meaning set forth in the recitals above.
Equipment means the
equipment, machinery, tools, jigs, dies, parts and other tangible
property wherever located, set forth on Schedule 1.1
(Equipment) attached hereto.
6
Excluded
Liabilities has the meaning set forth in § 2.2
below.
Final Order means
an Order of the Bankruptcy Court that has not been reversed,
stayed, modified or amended and as to which the time to appeal or
petition for certiorari has expired and as to which no appeal or
petition for certiorari is pending.
Intellectual
Property means the following intangible items:
(a)
all patents and patent applications on Schedule 1.1
(IP-Transferred Patents) and all reissuances,
continuations-in-part, revisions, extensions, reexaminations and
improvements thereof;
(b)
all material know how, trade secrets, and proprietary confidential
business information relating to the Product Lines in
Seller’s possession as of the Closing Date;
(c)
the trade names, trademarks and service marks set forth on
Schedule 1.1 (IP-Transferred Trademarks) the goodwill of the
business associated with and symbolized by the foregoing and all
applications, registrations and renewals thereof;
(d)
all material copyrights (including web pages, computer software,
manuals and end user-documentation), and all copyright
applications, copyright registrations and copyright registration
renewals, if any, in connection therewith, as set forth on
Schedule 1.1 (IP-Copyrights) ; and
(e)
all mask works, if any, and all applications, registrations and
renewals, if any, in connection therewith; and
(f)
URL redirection/forwarding, at the cost of Buyer, enabling
prospects or other individuals entering the URL domain
www.fischerimaging.com to be redirected to a URL to be established
by Buyer for a period of 12 months after close of sale.
Notwithstanding
the foregoing, the trade name Fischer Imaging or any derivative
thereof, any registered trademark containing the trade name Fischer
Imaging or any derivative thereof, or any domain name containing
the name Fischer Imaging or any derivative thereof is not included
in the definition of Intellectual Property.
Intellectual Property
Schedules has the meaning set forth in § 4.4
below.
Inventory means
those items described on Schedule 1.1 (Inventory)
attached hereto. Buyer specifically acknowledges that 20 Bloom
finished goods units will be retained by Seller and are not
included in Inventory.
IRC means the
Internal Revenue Code of 1986, as amended.
Maintenance
Obligations has the meaning set forth in § 2.3
below.
7
Person means any
individual, corporation, partnership, limited liability company,
trust, association, joint venture or other entity or any kind
whatsoever.
Personnel means all
directors, officers and employees.
Product Line has
the meaning set forth in the recitals above.
Purchase
Price means the Cash Purchase Price plus the Deferred
Purchase Price.
Representative
means any attorney, accountant, agent, consultant or other
representative (but shall not include Personnel).
Sale Approval Order
means, in the event of a Bankruptcy Case, an order of the
Bankruptcy Court, satisfactory in form and substance to Buyer,
Seller and their respective counsel, entered after a hearing
conducted with adequate notice, approving the transactions
contemplated by this Agreement.
Sale Procedures
Order means, in the event of a Bankruptcy Case, an order
of the Bankruptcy Court, satisfactory in form and substance to
Buyer, Seller and their respective counsel, entered after a hearing
conducted with adequate notice, approving any specific sales
procedures in the Bankruptcy Court.
Seller has the
meaning set forth in the preface above.
Subsidiary means
any corporation with respect to which a specified Person (or a
Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to
elect a majority of the directors.
Taxes shall mean
all taxes, estimated taxes, assessments and other charges,
including any interest, penalties, additions to tax or additional
amounts that may become payable in respect thereof, imposed by any
foreign, federal, state, county, local or other government or
taxing authority, which taxes shall include, without limitation,
all income taxes, payroll and employee withholding taxes,
unemployment insurance, social security, sales and use taxes,
value-added taxes, excise taxes, franchise taxes, gross receipts
taxes, occupation taxes, real and personal property taxes, stamp
taxes, transfer taxes, workers’ compensation and other
obligations of the same or of a similar nature.
VersaRad Line
has the meaning set forth in the recitals above.
ARTICLE
II
PURCHASE AND
SALE AGREEMENT
2.1
Transfer of Acquired Assets.
Upon the terms and
subject to the conditions and provisions contained herein and in
the Sale Procedures Order, if any, at the Closing, Seller shall
sell, convey, transfer, assign and deliver to Buyer, and Buyer
shall purchase, acquire and accept from Seller, the Acquired Assets
free and clear
8
of any and all
Encumbrances, “as is, where is” without representations
or warranties of any kind, express or implied except as contained
in this Agreement.
2.2
Assumed Liabilities.
At the Closing,
Buyer shall assume and undertake to pay, perform and discharge when
due or required to be performed the Assumed Liabilities and the
Assumed Executory Contracts. Buyer will not assume nor have
any responsibility, however, with respect to any other obligation
or liability of Seller not included within the definition of
Assumed Liabilities (the “ Excluded Liabilities
”).
2.3
Assumed Executory Contracts.
From and after the
Closing Date, Buyer shall assume all of Seller’s obligations
under the Assumed Executory Contracts including, if set forth on
Schedule 1.1 (Assumed Executory Contracts) , the obligations
to provide maintenance services pursuant to the existing service
contracts listed thereon (“ Maintentance Obligations
”).
2.4
Purchase Price.
(a)
Upon the terms and subject to the conditions set forth herein,
Buyer shall pay to Seller for the sale, transfer, assignment,
conveyance and delivery of the Acquired Assets, $590,000 (the
“ Cash Purchase Price” ), net of the
Deposits (i.e., $531,000 = $590,000 — Deposits of $59,000),
by delivery of cash payable by wire transfer or other immediately
available funds.
(b)
Buyer shall pay to Seller as additional consideration $4,000.00 per
individual Bloom Electrophysiology Stimulator (“ Bloom
Unit ”) sold by Buyer during the twelve (12) months
following the Closing (the “ Deferred Purchase Price
”). Buyer shall pay Seller under this Section
2.4(b) by the 20 th of
each month for any Bloom Units sold during the previous
month. Notwithstanding the number of Bloom Units actually
sold during the twelve (12) months following Closing, Buyer shall
pay to Seller pursuant to this Section 2.4(b) a minimum of
$160,000, but in no event more than $240,000. If at the end
of the twelve (12) month period Buyer has not paid to Seller an
aggregate minimum amount of $160,000 pursuant to this Section
2.4(b) , Buyer shall pay to Seller the shortfall to Seller
within fifteen (15) days after the expiration of the twelve (12)
month period.
(c)
The Purchase Price shall be allocated for federal income tax
purposes among the Acquired Assets in a manner reasonably agreeable
to Seller and Buyer; provided that such allocation shall be
made in a manner consistent with § 1060 of the IRC.
(d)
The Deposits shall be held in a segregated account, and applied in
accordance with the terms of this Agreement.
9
ARTICLE
III
CLOSING
3.1
Closing.
Upon the terms and conditions set forth herein
and, in the event of a Bankruptcy Case, in the Sale Procedures
Order or the Sale Approval Order, the closing of the transactions
contemplated herein (the “ Closing ”) shall be
held at 8:00 a.m. prevailing Mountain time at the offices of
Jessop & Company, P.C., 303 E 17 th
Ave, Suite 930, Denver, Colorado, on the later of (i) a date
within two (2) Business Days after the Sale Approval Order
becomes a Final Order, (ii) on or after October 31, 2006, but
before November 6, 2006, or (iii) such other date (which date
shall in no event be more than three business days after the date
of satisfaction or waiver of the conditions (other than conditions
intended to be satisfied at the Closing) to each Party’s
obligations hereunder) as the Parties may mutually determine.
The date on which the Closing occurs in accordance with the
previous sentence is referred to as the “ Closing Date
.”
3.2
Conveyances at Closing.
At the Closing,
and in connection with effecting and consummating the Closing,
including, without limitation, the sale and purchase of the
Acquired Assets and the delivery of the Purchase Price, Seller and
Buyer shall, on the Closing Date, deliver the following:
(a)
Instruments and Possession . Seller shall deliver to
Buyer:
(i)
in the event of a Bankruptcy Case, a certified copy of the Sale
Approval Order;
(ii)
originals of all Assumed Executory Contracts owned by or in the
possession of Seller, otherwise copies thereof;
(iii)
assignments and transfers of Intellectual Property in the forms
attached hereto as Exhibit 3.2(a)(iii) ;
(iv)
one or more bills of sale for the Equipment, Inventory and
Deliverables in the forms attached hereto as Exhibit
3.2(a)(iv) ;
(b)
Deliverables . Promptly following the Closing, Seller
shall provide the Deliverables and copies of the Data to Buyer and,
from time to time thereafter, such additional Data as Buyer may
reasonably request;
(c)
Miscellaneous . After the Closing Date, Seller shall
deliver to Buyer such other instruments as shall be reasonably
requested by Buyer to vest in Buyer title in and to the Acquired
Assets in accordance with the provisions hereof.
(d)
Form of Instruments . To the extent that a form of any
document to be delivered hereunder is not attached as an
Exhibit hereto, such documents shall be in form and substance,
and shall be executed and delivered in a manner, reasonably
satisfactory to Buyer and
10
Seller.
(e)
Purchase Price . Buyer shall deliver the Cash Purchase
Price, net of the Deposits, to the Seller in accordance with
Section 2.4 and such other instruments of assumption as
Seller and its counsel reasonably may request.
3.3
Transaction Expenses.
Except as
expressly provided herein, each party shall bear its own costs and
expenses, including attorney, accountant and other consultant fees,
in connection with the execution and negotiation of this Agreement
and the consummation of the transactions contemplated
hereby.
3.4
Transfer Taxes and Costs.
All transfer,
sales, use and other Taxes in connection with the transactions
contemplated by this Agreement shall be paid equally by both Seller
and Buyer. All costs to register or record the transfer of
any intellectual property shall be paid by Buyer.
3.5
Other Closing Matters.
Each of the
parties shall use their reasonable efforts to take such other
actions required hereby to be performed by it prior to or on the
Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby
makes, as of the date hereof, the following representations and
warranties to Buyer regarding only those Acquired Assets being
transferred from Seller to Buyer, subject to an appropriate vote of
Seller’s shareholders or, in the event of a Bankruptcy Case,
the entry of the Sale Approval Order by the Bankruptcy
Court:
4.1
Organization and Authorization of Seller.
Seller is duly
organized, validly existing and in good standing under the laws of
the State of Delaware. Seller has all necessary corporate
power and authority to enter into this Agreement subject to Seller
shareholder approval or the Sale Approval Order and has taken all
corporate action necessary, to execute and deliver this Agreement,
to consummate the transactions contemplated hereby and to perform
its obligations hereunder, and no other corporate proceedings on
the part of Seller are necessary to authorize the execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Seller and, upon receipt of
shareholder approval or the Sale Approval Order, is a valid and
binding obligation of Seller, enforceable against it in accordance
with its terms (except to the exten
