CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT 10.46
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") made this 5th day of December,
2002, by and between ISRAEL PHARMACEUTICAL RESOURCES L.P., an Israeli limited
partnership with offices at Yacobi House, Even Yehuda, Israel ("SELLER"), and
TRIMA, ISRAEL PHARMACEUTICAL PRODUCTS, MAABAROT LTD., an Israeli private company
with its address at Post Maabarot, Israel 40230 ("BUYER") (Seller and Buyer
shall jointly be termed the "PARTIES", and each a "PARTY").
WITNESSETH
WHEREAS, Seller desires to sell and transfer to Buyer certain assets specified
below, and Buyer desires to purchase such assets, under the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the terms and conditions hereinafter set
forth, the parties hereto mutually agree as follows:
1. Preamble and Annex
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The preamble and annex to this Agreement shall be considered part of
this Agreement.
2. Sale and Purchase of Assets
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2.1 Subject to the terms and conditions set forth herein, in consideration
of the Purchase Price stipulated in Section 5 hereof, Seller agrees to
sell, assign and transfer to Buyer, and Buyer agrees to purchase and
assume from Seller, the assets listed in ANNEX A attached hereto and
all rights and liabilities associated with such assets (the "PURCHASED
ASSETS"), including without limitation with regard to the use of the
Purchased Assets such as software licenses, instructions to use and
maintain the Purchased Assets, standard operation procedures and
warranty certificates relating to the Purchased Assets, all to the
extent held or in the possession of Seller, free and clear of all
liens, charges, claims, security interests, encumbrances and other
restrictions or third party rights of any kind.
2.2 The Purchased Assets shall be sold to Buyer "as-is" at the time of the
Closing (as defined below) and Seller makes no representation as to
their functionality, value, condition or fitness for use, and makes no
other representation of any kind except as expressly set forth in
Section 6 hereof.
2.3 Except for the sale of the Purchased Assets, no other assets or rights
of any kind, tangible or intangible, including without limitation
goodwill, names or intellectual property rights of any kind whatsoever,
are being sold, conveyed or otherwise transferred to Buyer by Seller.
3. Closing of Sale and Purchase
----------------------------
3.1 The sale, assignment and transfer of the Purchased Assets and the
payment of the Purchase Price (as stipulated in Section 5 hereof) shall
take place in Herzlia on December 5, 2002 or at such other place and
time as shall be agreed by the Parties (the "CLOSING").
Exhibit 10.46 - Page 1
3.2 At the Closing, Buyer shall pay to Seller the Purchase Price.
3.3 Title to the Purchased Assets and risk of loss shall pass to Buyer with
delivery of possession in the Purchased Assets to be carried out
immediately upon the Closing, at the same location where they are at
the time of this Agreement, I.E. at the Premises (as defined below).
Buyer hereby acknowledges that the Purchased Assets do not have to be
delivered to a different location by Seller. All other non-Purchased
Assets shall be retained by Seller and shall be removed by Seller from
their present location at or promptly after the Closing.
4. Conditions Precedent
--------------------
4.1 Anything to the contrary in this Agreement notwithstanding, the
obligation of Seller to sell the Purchased Assets to Buyer, and the
obligation of Buyer to purchase the Purchased Assets from Seller, shall
be contingent on the execution of (i) a Lease Termination Agreement
between Seller and the lessor (the "LESSOR") of the premises leased by
Seller at Yacobi House in the Industrial Zone in Even Yehuda (the
"PREMISES"), and (ii) a Lease Agreement between Buyer and the Lessor
with respect to the Premises, commencing immediately after the
termination of Seller's lease of the Premises.
4.2 If any of the conditions precedent have not been fulfilled, or waived
prior to the Closing by both Parties, the Closing will not take place;
in such an event, this Agreement and all of the Parties' rights and
obligations hereunder shall be terminated, unless agreed otherwise in
writing by the Parties, and no Party shall be liable to the other Party
for any damage, cost or expense caused to that other Party from the
termination of this Agreement.
5. Purchase Price; Payment Terms; Reimbursement
--------------------------------------------
5.1 In consideration for the sale of the Purchased Assets, Buyer shall pay
to Seller at the Closing the sum of $700,000 (seven hundred thousand
U.S. dollars) (the "PURCHASE PRICE"), plus Value Added Tax. The Parties
agree that, subject to Sections 5.4 and 5.5 hereof, the Purchase Price
shall be the full and final consideration payable to Seller hereunder.
5.2 The Purchase Price shall be paid to Seller in U.S. dollars or in
Israeli Shekels according to the representative rate of exchange last
published by the Bank of Israel before the date of payment, by
cashier's check, bank transfer or as otherwise agreed by the parties.
5.3 The Purchase Price is exclusive of VAT which shall be paid by Buyer to
Seller at the 14th of the month following the Closing at the then
applicable rate, in addition to the Purchase Price.
5.4 Seller shall reimburse Buyer within 10 (ten) days of receipt of Buyer's
written demand for any payment made by Buyer to any third party in
connection with the Purchased Assets, that (i) before the date of the
Closing was committed and agreed to be paid by Seller, and (ii) is
directly related to a service or other benefit provided to Seller prior
to the date of the Closing. Buyer shall notify Seller promptly of any
such claim for payment received by it from a third party, and, at
Seller's request, shall cooperate with Seller in negotiating or
otherwise dealing with such claim.
Exhibit 10.46 - Page 2
5.5 Buyer shall reimburse Seller within 10 (ten) days of receipt of
Seller's written demand for any payment made by Seller to a third party
in connection with the Purchased Assets, which arises or relates to a
service or other benefit that will be provided to Buyer within a period
of no more than 60 (sixty) days after the Closing. The foregoing shall
also include, notwithstanding the time limitation stipulated above, the
respective portion relating to any period after the Closing, of the
advance lease payment made by Seller to Lessor. . Seller shall provide
to Buyer appropriate documentation regarding such payments, if any.
Buyer's obligation under this Section 5.5 (excluding the advance lease
payments) shall be limited to the aggregate amount of NIS 50,000.
6. Representations and Warranties of Seller
----------------------------------------
Seller represents and warrants to Buyer as follows:
6.1 Seller has full partnership authority to execute this Agreement and
perform in accordance herewith, and this Agreement constitutes a valid
and binding obligation of Seller and is enforceable against it in
accordance with its terms. Each document of transfer contemplated by
this Agreement, when executed and delivered by Seller in accordance
with the provisions hereof, shall be the valid and legally binding
obligation of Seller and be enforceable against Seller in accordance
with its terms. This Agreement and all transactions contemplated hereby
have been duly authorized by all requisite partnership action by
Seller.
Neither the execution nor the delivery of this Agreement nor
fulfillment or compliance with the terms and conditions hereof will
constitute a breach by Seller of its organizational documents or result
in a breach of the terms, conditions or provisions of, or constitute a
default under or result in a violation of, any agreement, contract or
instrument to which Seller is a party or by which it is otherwise
bound, result in a violation by Seller of any existing law or statute
or any material rule or regulation or of any order, decree, judgement
or injunction of any court or governmental agency, or result in the
creation or imposition of any lien, charge, restriction, security
interest or encumbrance of any nature whatsoever on the Purchased
Assets.
6.2 Seller has good and clear title and a valid owner's interest in and to
all of the Purchased Assets, free and clear of all liens, charges,
encumbrances or third party rights of any nature whatsoever.
6.3 At the Closing or as soon as practicable thereafter, Seller will (i)
deliver to Buyer all relevant documentation in Seller's possession
which relates to the Purchased Assets, such as manuals, equipment
documentation, construction drawings and floor plans; and (ii) deliver
to Buyer all warranty certificates relating to the Purchased Assets.
6.4 Nothing in this Agreement shall cause or be construed to cause the
transfer to Buyer of any of Seller's employees. Seller is and shall
continue to be solely liable for Seller's employees, as they are at the
time of this Agreement and as they may be in the future, in respect of
such status. Without derogating from the generality of the foregoing,
Seller shall indemnify Buyer for any losses, damages, costs and
expenses (including reasonable legal fees and expenses) arising out of
or due to any claim or demand made by any of Seller's employees against
Buyer, in connection with their employment by Seller or with the
transactions contemplated in this Agreement; provided, however, that
Buyer shall promptly notify Seller of any such claim or demand and
permit Seller to assume the defense or negotiation thereof.
Exhibit 10.46 - Page 3
6.5 Seller shall, at any time and from time to time after the Closing, upon
the reasonable request of Buyer and at Buyer's expense, execute,
acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, documents,
assignments, transfers, conveyances and assurances as may be reasonably
required for better assigning, transferring, granting, conveying,
assuring and confirming to Buyer, or to its successors and permitted
assigns, any or all of the Purchased Assets.
7. Representations and Warranties of Buyer
---------------------------------------
Buyer represents and warrants to Seller as follows:
7.1 Buyer has full corporate authority to execute this Agreement and
perform in accordance herewith, and this Agreement constitutes a valid
and binding obligation of Buyer and is enforceable against it in
accordance with its terms. This Agreement and all transactions
contemplated hereby have been duly authorized by all requisite action
by Buyer.
7.2 Neither the execution nor the delivery of this Agreement nor
fulfillment of or compliance with the terms and conditions hereof will
constitute a breach by Buyer of the terms, conditions or provisions of,
or constitute a default under or result in a violation of its
organizational documents or any material agreement, contract or
instrument to which Buyer is a party or by which it is otherwise bound,
or result in a violation by Buyer of any existing law or statute or any
rule or regulation of any jurisdiction, or of any order, decree or
injunction of any court or governmental agency.
7.3 Buyer acknowledges that except for the sale of the Purchased Assets,
subject to the provisions set forth in Section 2.1 hereof, no other
assets or rights of any kind, tangible or intangible, including without
limitation goodwill, names or intellectual property rights of any kind
whatsoever, are being sold, transferred, conveyed or otherwise
transferred to Buyer by Seller.
7.4 Buyer acknowledges that the Purchased Assets will be sold and delivered
to it in their condition "as-is" at the time of the Closing, and that
it has inspected and is familiar with the Purchased Assets and their
condition and has found them to be satisfactory for its needs. Buyer
warrants that it does not have, nor will have or make in the future,
any claim, demand, complaint, cause of action or action against Seller
or any of Seller's partners, for any reason whatsoever, with respect to
the Purchased Assets, except for claims, demands, complaints and causes
of action expressly permitted under this Agreement.
7.5 Buyer acknowledges that it did not receive from Seller or from anyone
in Seller's name or on Seller's behalf any implied or oral
representations with respect to the Purchased Assets. Buyer
acknowledges that Seller's sole representations with respect to the
Purchased Assets are the representations expressly made in this
Agreement.
Exhibit 10.46 - Page 4
8. No Warranty; Liability
----------------------
8.1 SUBJECT TO THE REPRESENTATIONS MADE BY SELLER IN SECTION 6.2 HEREOF,
THE PURCHASED ASSETS ARE SOLD IN THEIR CONDITION "AS-IS" AT THE TIME OF
THE CLOSING. SELLER MAKES NO REPRESENTATION AND EXTENDS NO WARRANTY OF
ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION,
VALUE OR FUNCTIONALITY OF THE PURCHASED ASSETS, AND MAKES NO WARRANTIES
AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL
HAVE NO OBLIGATION TO CAUSE ANY OF ITS EMPLOYEES TO BE TRANSFERRED TO,
OR EMPLOYED BY, BUYER.
8.2 Without derogating from the other provisions of this Agreement, except
for a breach of Section 2.1 hereof, in no event will either of the
Parties be liable to the other Party for any incidental, special or
consequential damages (including lost profits) suffered by the other
Party or any third party, even if that Party has been advised of the
possibility of such damages, which result from this Agreement or the
performance thereof.
9. Miscellaneous
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9.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the Parties and supersedes all prior discussions,
agreements or correspondence with regard to the subject matter hereof.
No representations or warranties have been made by either of the
Parties, except as expressly contained herein.
9.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the
Parties. Neither Party may assign any of its rights or delegate any of
it obligations hereunder without the prior written consent of the other
Party.
9.3 GOVERNING LAW; JURISDICTION; LANGUAGE. This Agreement shall be governed
by and construed under the laws of the State of Israel. The competent
courts in Tel Aviv shall have exclusive jurisdiction in any dispute
arising out of or in connection with this Agreement. This Agreement has
been drafted, negotiated and executed in the English language.
9.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.5 NOTICES. All notices and other communications required or permitted
hereunder to be given to a Party to this Agreement shall be in writing
and shall be faxed (with confirmation sent by registered mail) or
mailed by registered or certified mail, postage prepaid, or otherwise
delivered by hand or by messenger, addressed to such Party's address as
set forth hereinabove or at such other address as the Party shall have
furnished to the each other Party in writing in accordance with this
provision. Any notice sent in accordance herewith shall be effective
(i) if mailed, 5 (five) business days after mailing, (ii) if sent by
messenger, upon delivery, (iii) if sent by an overnight courier that
guarantees second day delivery, two business days after mailing through
such service, and (iv) if sent via facsimile, upon transmission and
electronic confirmation of receipt or (if transmitted and received on a
Exhibit 10.46 - Page 5
non-business day) on the first business day following transmission and
electronic confirmation of receipt.
9.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of all Parties hereto or,
with respect to a waiver, by the Party for whose benefit the waived
term was.
9.7 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its remaining terms.
9.8 NON-RECOURSE. No recourse or claim may be had against any of the
limited partners of Seller.
9.9 COSTS AND EXPENSES. Except as otherwise expressly provided herein, each
of the Parties shall bear its own costs and expenses, including legal
costs and expenses, in connection with this Agreement.
IN WITNESS WHEREOF, the undersigned have set forth their signature as of the
date first written above.
/S/ ANDY KEIDAR /S/ ARIE L. GUTMAN
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BUYER SELLER
By: ANDY KEIDAR By: ARIE L. GUTMAN
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Exhibit 10.46 - Page 6