Exhibit 10.37
PLEXERA BIOSCIENCE
LLC
ASSET PURCHASE
AGREEMENT
This Asset Purchase Agreement (the
“Agreement”) is dated as of February 17, 2009 (the
“Effective Date”), by and among Plexera Bioscience LLC,
a Delaware limited liability company (the “Company”)
and Lumera Corporation, a Delaware Corporation
(“Lumera”) , and Plexera, LLC, a Delaware limited
liability company (“Buyer”).
Recitals
WHEREAS, upon the terms and subject
to the conditions hereinafter set forth, Company desires to sell to
Buyer, and Buyer desires to purchase from Company, the assets and
goodwill of the Company, as further set forth below;
WHEREAS, Buyer and Company shall
enter into the Ancillary Agreements in order to effectuate the
Contemplated Transactions; and
NOW THEREFORE, in consideration of
the mutual covenants and agreements contained herein, the benefits
to accrue to the parties hereto and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. Transfer of Assets . Upon
the terms and subject to the conditions of this Agreement, Company
and Lumera agree to sell to Buyer and Buyer agrees to purchase from
Company and Lumera all of the tangible and intangible assets of
Company and all of the intangible assets of Lumera relating to the
Business, in all cases as listed herein and the exhibits and
schedules hereto and all goodwill associated therewith
(collectively, the “Transferred Assets”) in exchange
for the Purchase Price (as defined below). The closing of the
Contemplated Transactions (the “Closing”) shall take
place on February 17, 2009, or at such time and place as may
be mutually agreed to by Company and Buyer (such date, the
“Closing Date”). The purchase price for the Transferred
Assets shall be $300,000 (three hundred thousand dollars), less the
Patent Maintenance Surplus (the “Purchase Price”). The
Purchase Price shall be payable in cash, by company check, by wire
transfer or immediately available funds or by alternative means
mutually agreed to by Buyer and Company. The Transferred Assets
include only the following:
(a) the Subject Intellectual
Property listed on Schedule I(a) , goodwill associated
therewith and licenses and sublicenses granted in respect thereto
and rights thereunder;
(b) the machinery, equipment,
computers and associated equipment, such as keyboards, monitors and
printers, and other equipment, including scientific instrumentation
and laboratory supplies, listed on Schedule I(b) ,
including, in addition, the laboratory and other supplies,
equipment and documents that were
contained in the two laboratories
located at the facility located at 19910 N Creek Pkwy Suite 100
Bothell, WA 98011 in which the Business was conducted at the time
of the review by representatives of Buyer of assets of the Business
during the period January 26 to January 29, 2008, but
excluding, for the avoidance of doubt, fixtures, such as fume hoods
and laboratory benches with integrated plumbing;
(c) copies of the expired contracts
exclusively or principally related to the Business listed on
Schedule I(c) (collectively, the
“Contracts”);
(d) all inventory and supplies
related to the Business (the “Inventory”) listed on
Schedule I(d) ;
(e) all rights under all licenses,
permits, authorizations, orders, registrations, certificates,
variances, approvals, consents and franchises used or useful solely
in connection with the operation of the Business or any pending
applications relating to any of the foregoing, including, without
limitation, all governmental permits, licenses, authorizations,
approvals and consents listed on Schedule I(e) ;
(f) all computer applications,
programs and other software, whether in source or object code and
including all related data and documentation, including, without
limitation, operating software, network software, firmware,
middleware, design software, design tools, systems documentation
and instructions listed on Schedule I(f) other than such
software set forth in Section 3(b) below;
(g) all rights to and in respect of
any telephone numbers, websites, e-mail addresses and Internet
domain names used solely in the Business (including the, websites,
e-mail addresses and Internet domain names) listed on Schedule
1(g) ;
(h) all cost information, sales and
pricing data, customer lists, customer prospect lists, supplier and
reseller lists, supplier and reseller records, customer and vendor
data, correspondence and lists, product literature, artwork,
design, development and manufacturing files, vendor and customer
drawings, formulations and specifications, and quality records and
reports used or useful solely in the conduct of the
Business;
(i) all schematics, diagrams, plans,
drawings, instructions and other representations or statements of
or for manufacturing or assembling equipment, instruments or
devices of the Business or parts thereof, and business records,
books, files, plans, documents, correspondence, lists, plats,
architectural plans, drawings, notebooks, written technical
information, data, specifications, research and development
information, originals or copies of contracts and other documents,
engineering drawings, operating and maintenance manuals, creative
materials, advertising and promotional materials, marketing
materials,
materials and analyses prepared by
consultants and other third parties, studies, reports, equipment
repair, maintenance or service records, whether written or
electronically stored or otherwise recorded, customers and supplier
lists, and whether relating to rights or obligations in effect or
expired, in all cases relating to the Business, including without
limitation those contained within the box of contracts and other
documents that was examined by representatives of Buyer during
their review of assets of the business on January 29,
2008;
(j) all materials and information of
the Company or its outside intellectual property counsel that was
created, collected or reviewed in connection with the preparation,
prosecution or maintenance of the Subject Intellectual
Property;
(k) all prepaid maintenance fees
relating to the patents that are included within the Transferred
Assets;
(l) all of the Seller’s
rights, claims, credits, causes of action or rights of set-off
against third parties relating to the Business or the Transferred
Assets, including claims pursuant to all warranties, awards,
advances, bonds, deposits, retentions, representations and
guarantees made by suppliers, manufacturers, contractors and other
third parties in connection with products or services purchased by
or furnished to Seller but not, in any event, any claims under the
business insurance policies or any agreements not included in the
Transferred Assets; and
(m) all goodwill of the
Business.
2. Transferred Assets Sold
“As Is” . Company and Buyer agree that the sale of
the Transferred Assets by Company is on an “as is”
basis. Buyer accepts the Transferred Assets in the condition in
which such assets existed as of the date assets of the Business
were inspected by representatives of Seller on January 29,
2008. Company makes no representations or warranties regarding the
Transferred Assets with respect to the condition of such assets,
fitness for a particular purpose or in any other respect, except
for the representations contained in Sections 6(e), 6(f) and
6(g).
3. Excluded Assets . The
Transferred Assets shall not include any of the
following:
(a) office furniture and fixtures,
other than personal computers and associated devices such as
keyboards, mice, printers and connecting wires, that are not listed
on Schedule I(b) ;
(b) all commercially available
software licensed according to standard commercial terms;
and
(c) any assets not listed in
Section 1 hereof or in exhibits or schedules
hereto.
4. Assumed Liabilities .
Buyer will not assume any liabilities or obligations of the
Business.
5. Representations and Warranties
of Buyer .
Buyer makes the following
representations and warranties to the Company:
a. Due Organization
. Buyer is a Delaware limited
liability company, and is validly existing and in good standing
under the laws of the jurisdiction of its organization.
b. Authorization.
The execution, delivery and
performance by Buyer of this Agreement and each Ancillary Agreement
to which it is (or will be) a party and the consummation of the
Contemplated Transactions are within the power and authority of
Buyer and have been duly authorized by all necessary action on the
part of Buyer. This Agreement and each Ancillary Agreement to which
it is (or will be) a party (i) has been (or in the case of
Ancillary Agreements to be entered into after the Effective Date,
will be) duly executed and delivered by Buyer and (ii) is (or
in the case of Ancillary Agreements to be entered into after the
Closing, will be) a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms except as
the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or other laws affecting the enforcement of
creditors’ rights or the availability of equitable
remedies.
c. No Conflicts;
Approvals. No action by
(including any authorization, consent or approval), or in respect
of, or filing with, any Governmental Authority is required for, or
in connection with, the valid and lawful (i) authorization,
execution, delivery and performance by Buyer of this Agreement and
each Ancillary Agreement to which it is (or will be) a party or
(ii) the consummation of the Contemplated Transactions by
Buyer. No provision of any applicable Legal Requirement and no
Government Order will prohibit the consummation of the Contemplated
Transactions.
d. Non-Contravention. Neither
the execution, delivery or performance of this Agreement or any
Ancillary Agreement to which it is (or will be) a party, nor the
consummation by Buyer of the obligations contemplated hereby or
thereby (i) will violate any Legal Requirement applicable to
Buyer, (ii) result in the creation or imposition of an
encumbrance upon, or the forfeiture of, any Transferred Asset, or
(iii) result in a breach or violation of, or default under,
the Organizational Documents of Buyer or any agreement to which
Buyer is bound.
e. Brokers . All negotiations
relative to this Agreement and the transactions contemplated hereby
have been carried out by the Buyer directly with the Company
without the intervention of any person or entity on behalf of Buyer
in such manner as to give rise to any valid claim by any person or
entity against Company for a finder’s fee, brokerage
commission or similar payment.
6. Representations, Warranties
and Agreements of the Company .
a. Due Organization
. Company is a Delaware limited
liability company, and is validly existing and in good standing
under the laws of the jurisdiction of its organization. Lumera is a
Delaware corporation, and is validly existing and in good standing
under the laws of the jurisdiction of its organization. The Company
shall maintain its existence at least until the date that is six
(6) months after the date hereof.
b. Authorization.
The execution, delivery and
performance by Company and by Lumera of this Agreement and each
Ancillary Agreement to which it is or either of them (or will be) a
party and the consummation of the Contemplated Transactions are
within the power and authority of Company and Lumera, respectively,
and have been duly authorized by all necessary action on the part
of Company and Lumera, respectively. This Agreement and each
Ancillary Agreement to which it is (or will be) a party
(i) has been (or in the case of Ancillary Agreements to be
entered into after the Effective Date, will be) duly executed and
delivered by Company or Lumera, as the case may be, and
(ii) is (or in the case of Ancillary Agreements to be entered
into after the Closing, will be) a legal, valid and binding
obligation of Company or Lumera, as the case may be, enforceable
against Company or Lumera, as the case may be, in accordance with
its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium or other laws affecting the
enforcement of creditors’ rights or the availability of
equitable remedies.
c. No Conflicts;
Approvals. No action by
(including any authorization, consent or approval), or in respect
of, or filing with, any Governmental Authority is required for, or
in connection with, the valid and lawful (i) authorization,
execution, delivery and performance by Company and Lumera of this
Agreement and each Ancillary Agreeme
