EXECUTION VERSION
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ASSET PURCHASE AGREEMENT
by and between
RESPIRONICS, INC.
and
FIBERSTARS, INC.
Dated as of December 30, 1998
RELATING TO FIBER OPTIC PHOTOTHERAPY SYSTEM
AND RELATED ASSETS
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Table of Contents
ARTICLE I Agreements to Sell and Purchase ......................... 1
1.01. Agreement to Sell Assets ................................ 1
1.02. Purchase Price .......................................... 2
1.03. Allocation of Purchase Price ............................ 2
1.04. No Assumption of Any Liabilities by Buyer ............... 2
ARTICLE II The Closing ............................................. 2
2.01. The Closing ............................................. 2
ARTICLE III Representations and Warranties of Seller ................ 3
3.01. Organization ............................................ 3
3.02. Due Authorization of Transaction Documents .............. 3
3.03. Title to Assets, No Liens ............................... 3
3.04. No Conflict ............................................. 3
3.05. No Contracts ............................................ 3
3.06. No Licenses, Permits, Authorizations or Equipment ....... 3
3.07. Taxes, Tax Returns and Audits ........................... 3
3.08. Notice of Violations .................................... 4
3.09. No Litigation ........................................... 4
3.10. No Infringement or Adverse Claims ....................... 4
3.11. No Other Intellectual Property Rights ................... 4
3.12. Year 2000 Compliance .................................... 4
3.13. Liability for Finder's Fees ............................. 4
ARTICLE IV Representations and Warranties of Buyer ................. 4
4.01. Organization ............................................ 4
4.02. Due Authorization of Transaction Documents .............. 5
4.03. Liability for Finder's Fees ............................. 5
4.04. No Conflict 5
ARTICLE V Pre-Closing Covenants of Seller ......................... 5
5.01. Certain Prohibited Transactions ......................... 5
5.02. Access to Premises and Information ...................... 6
5.03. Reasonable Commercial Efforts ........................... 6
ARTICLE VI Pre-Closing Covenants of Buyer .......................... 6
6.01. Reasonable Commercial Efforts ........................... 6
ARTICLE VII Post-Closing Covenants .................................. 6
7.01. Prohibition on Competition by Seller .................... 6
7.02. Consulting and Assistance From Seller ................... 7
7.03. Delivery of Technical Documentation and Other Assets .... 7
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7.04. Existing Purchase Orders; Repair Service Components ..... 7
7.05. Prohibition on Competition by Buyer ..................... 7
ARTICLE VIII Conditions .............................................. 8
8.01. Mutual Conditions ....................................... 8
8.02. Conditions to the Obligations of Buyer .................. 8
8.03. Conditions to the Obligations of Seller ................. 8
ARTICLE IX Indemnification ......................................... 9
9.01. Indemnification by Seller ............................... 9
9.02. Notice and Right to Defend Third Party Claims ........... 9
ARTICLE X Miscellaneous ........................................... 9
10.01. Expenses ................................................ 9
10.02. Survival of Representations, Warranties and Indemnity ... 9
10.03. Further Assurances ...................................... 10
10.04. Notices ................................................. 10
10.05. Postponement and Waiver ................................. 10
10.06. Termination ............................................. 11
10.07. Assignment .............................................. 11
10.08. Entire Agreement ........................................ 11
10.09. Invalidity .............................................. 11
10.10. Captions ................................................ 11
10.11. Counterparts ............................................ 11
10.12. Termination of Existing Distribution Agreement .......... 11
10.13. Governing Law ........................................... 12
EXHIBITS
EXHIBIT A PHOTOTHERAPY SYSTEM/FIBERSTARS
TECHNOLOGY/OPTOBLANKET PORTION
EXHIBIT B ▇▇▇▇ OF SALE AND ASSIGNMENT
EXHIBIT C ALLOCATION OF PURCHASE PRICE
EXHIBIT D FIBER OPTIC ILLUMINATOR BY PART NUMBER
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") made and entered into
as of December 30, 1998 by and between RESPIRONICS, INC., a Delaware corporation
("Buyer"), and FIBERSTARS, INC., a California corporation ("Seller").
WITNESSETH:
WHEREAS, Seller wishes to sell, and Buyer wishes to purchase, the fiber
optic phototherapy system described on Exhibit A attached hereto (the
"Phototherapy System") and all the assets of Seller directly relating thereto
(including without limitation all products, technical know-how, intellectual
property rights, technical documentation, inventory and goodwill related
thereto), upon the terms and conditions contained herein, in exchange for the
consideration described herein; and
NOW, THEREFORE, the parties hereto, each intending to be legally bound
hereby, covenant and agree as follows:
ARTICLE I
Agreements to Sell and Purchase
1.01. Agreement to Sell Assets.
(a) Upon the terms and subject to the conditions of this Agreement,
Seller agrees to sell, convey, assign, transfer and deliver to Buyer, and Buyer
agrees to purchase and acquire, the Phototherapy System and all the assets,
properties, rights and interests, tangible and intangible and including all
associated goodwill, of the Seller directly relating thereto (the Phototherapy
System and all such other assets, properties, rights, interests and goodwill
collectively being referred to as the "Assets"). Without limiting the generality
of the foregoing, the Assets shall include the following:
(i) The fiber optic illuminators identified on Exhibit D
attached hereto and contained in the Phototherapy System and any other
devices, products or other developments arising out of the Phototherapy
System, and any improvements thereto (the "Products").
(ii) The optoblanket portion of the Phototherapy System and any
improvements thereto (the "Optoblanket").
(iii) All information and know-how which is used in connection
with the Phototherapy System or relating to the design, tooling,
manufacture, testing, engineering, servicing, marketing, distribution
and use of the Products and the Optoblanket, including without
limitation all confidential information, trade secrets, inventions,
technical data, research and development data, processes and
formulations, manufacturing and production know-how and experience,
management know-how, training programs, engineering and other drawings,
specifications, schemes, guidelines, procedures, policies, performance
criteria, operating instructions, operating and maintenance manuals and
brochures, technology, technical information, software (including all
source code and object code, software design and validation documents),
engineering and functional specifications, promotional literature,
technical rights and information (the "Technical Know-How").
(iv) All patent and other intellectual property rights, all
copyrights and mask work rights and all marketing, manufacturing and
distribution rights related to the Phototherapy System, including all
improvements thereof and thereto, together with the goodwill associated
therewith and any and all past, present and future legal causes of
action and choses in action related thereto, that Seller has a right to
bring (the "Intellectual Property Rights").
(v) All technical documentation and drawings in any media of
any type, including machine readable and tangible format, embodying
information regarding, or documentation of, the Phototherapy System (the
"Technical Documentation").
(vi) All existing inventory of Products and Optoblankets owned
or held by or on behalf of Seller as well as all work-in-process, parts,
spare parts and raw materials related thereto.
(b) Seller shall retain, and Buyer shall not purchase, any assets,
properties, rights and interests of Seller other than the Assets.
1.02. Purchase Price. In consideration for the sale of the Assets, Buyer
shall pay to Seller the sum of $826,000 (the "Purchase Price"). The Purchase
Price shall be paid to Seller in four (4) equal quarterly installments, with the
first such quarterly installment to be paid on the Closing Date. All payments
shall be made by Buyer by wire transfer to an account designated by Seller in
writing.
1.03. Allocation of Purchase Price. The parties shall agree upon and
jointly prepare and attach to this Agreement as Exhibit C, as of the Closing
Date, an allocation of the Purchase Price reflecting the allocation of the
Purchase Price to the Assets as negotiated by the parties. Within 60 days of the
Closing Date, Buyer shall prepare an IRS Form 8594 reflecting the allocation of
the Purchase Price. The parties shall to use the allocations on Exhibit C and
IRS Form 8594 for all tax purposes, including the preparation of federal and
state income tax returns. For purposes of the preparation of Form 8594, the
name, address and taxpayer identification number of the parties shall be as
listed in Section 10.04.
1.04. No Assumption of Any Liabilities by Buyer. Buyer shall not assume
or be required to pay, perform or discharge any liabilities and obligations of
Seller as a result of the transactions contemplated by this Agreement.
ARTICLE II
Closing
2.01. The Closing. The consummation of the transactions contemplated by
this Agreement shall constitute the "Closing." The Closing shall take place at
such time and place and on such date as shall be mutually agreed upon by Seller
and Buyer, which date shall constitute the "Closing Date."
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ARTICLE III
Representations and Warranties of Seller
Seller represents and warrants to Buyer as follows:
3.01. Organization. Seller is duly organized, validly existing and in
good standing under the laws of the State of California, with all necessary
corporate power and authority to own and lease its properties, to carry on its
business as and where such properties are now owned or leased and such business
is now being conducted, except where the failure to do so would not have a
material adverse effect on Seller.
3.02. Due Authorization of Transaction Documents. Seller has full power
and authority and has taken all necessary action to execute and deliver this
Agreement, the ▇▇▇▇ of Sale and Assignment (as defined below) and the Transfer
Instruments (as defined below; individually a "Transaction Document" and
collectively, the "Transaction Documents") to which it is a party, and to
perform all the terms and conditions hereof and thereof to be performed by
Seller. Each Transaction Document to which it is a party is the valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or other laws of general application relating to or affecting the
enforcement of creditors' rights or by general principles of equity limiting the
availability of equitable remedies.
3.03. Title to Assets. No Liens. Seller has good title to all of the
Assets, free and clear of all liens, security interests, charges, claims and
encumbrances of every kind and nature (collectively, "Liens"), and will convey
the same to Buyer free and clear of any Liens. Seller possesses all right and
title to the Assets and all intellectual property rights therein and has the
right to transfer same to Buyer.
3.04. No Conflict. The execution and delivery of each Transaction
Document by Seller, the consummation of the transactions contemplated thereby by
Seller and the fulfillment of and compliance with the terms and provisions
thereof by Seller do not and will not (a) violate any provision of law or
administrative regulation or any judicial or administrative order, award,
judgment or decree applicable to Seller, (b) conflict with, result in a breach
of, constitute a default under or accelerate or permit the acceleration of the
performance required by, any agreement or instrument to which Seller is a party
or by which Seller is bound, (c) result in the creation of any Lien upon any of
the Assets or (d) terminate or give any party thereto the right to terminate any
such agreement or instrument.
3.05. No Contracts. Except for this Agreement and the Distribution
Agreement between Seller and Fiberoptic Medical Products, Inc. ("FMP") dated as
of February 21, 1996 (as amended on June 27, 1996, the "Existing Distribution
Agreement"), Seller is not a party to or subject to any contract or agreement,
whether written or oral, relating to or affecting the Assets.
3.06. No Licenses. Permits. Authorizations or Equipment. There are no
approvals, authorizations, consents, licenses, franchises, orders and other
permits of, and filings with, any governmental authority, whether foreign,
Federal, state or local, nor any equipment, hardware or software not included as
part of the Assets, which are required for the use, manufacture, distribution
and sale of the Assets.
3.07. Taxes. Tax Returns and Audits. All foreign, Federal, state and
local income, use, sales, franchise, employment, real and personal property tax
returns relating to the Assets required to be filed by or on behalf of Seller
have been duly filed, or extensions have been obtained, and all such taxes,
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assessments and levies shown thereon to be due and payable have been duly paid
or are being contested by Seller in good faith.
3.08. Notice of Violations. Seller has not received any written notice
from any governmental authority of any violation of any law, statute, ordinance
or regulation relating to the Assets.
3.09. No Litigation. There is no suit, claim, action or proceeding at
law or in equity (whether or not purportedly on behalf of or against Seller)
pending or, to the knowledge of Seller, threatened relating to the Assets or
which could affect or apply to the Assets.
3.10. No Infringement or Adverse Claims. The Assets do not infringe any
right of any person under any federal, state or foreign patent, copyright,
trademark, trade secret or other intellectual property laws. There are no
adverse claims of ownership in or to any of the Assets or any rights in or to
any of the Assets and, to Seller's knowledge, there do not exist any facts that
would support a claim that Seller's use or practice of any of the Assets has
infringed or violated any intellectual property rights or other rights of any
other person. The use, manufacture, distribution and sale of the Phototherapy
System, including without limitation the Products and the Optoblanket, will not
infringe or violate any intellectual property rights of any person.
3.11. No Patents or Other Intellectual Property Rights. The Intellectual
Property, Technical Know-How and the Technical Documentation constitute all of
the intellectual property rights necessary for the use, manufacture,
distribution and sale of the Phototherapy System, including without limitation
the Products and the Optoblanket. There are no patents on or applicable to the
Phototherapy System, including without limitation the Products or the
Optoblanket, and there are no third party intellectual property rights,
technology, know-how, software or other property rights which are necessary or
material to the use, manufacture, distribution and sale of the Phototherapy
System, including without limitation the Products and the Optoblanket. Seller
does not own or license any patents, trademarks, copyrights or other
intellectual property rights which are used in connection with the Assets or are
necessary for the manufacture, distribution and sale of the Phototherapy System,
including the Products or the Optoblanket.
3.12. Year 2000 Compliance. To Seller's knowledge, the Assets (including
without limitation any computer hardware or software or embedded chips
incorporated in the Assets) are Year 2000 Compliant. As used herein, "Year 2000
Compliant" means all Assets (including without limitation any computer hardware
or software or embedded chips incorporated in the Assets) operate without error
relating to or caused by date data, specifically including any error relating
to, or the product of, date data which represents or references different
centuries or more than one century or leap years.
3.13. Liability for Finder's Fees. No liability for brokerage fees,
finder's fees, agent's commissions or other similar forms of compensation in
connection with this Agreement or any transaction contemplated hereby has been
incurred by Seller.
ARTICLE IV
Representations and Warranties of Buyer
Buyer represents and warrants to Seller as follows:
4.01. Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with all
necessary corporate power and authority to own
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and lease its properties, to carry on its business as and where such properties
are now owned or leased and such business is now being conducted, except where
the failure to do so would not have a material adverse effect on Buyer.
4.02. Due Authorization of Transaction Documents. Buyer has full
corporate power and has taken all necessary corporate action to execute, deliver
and consummate the Transaction Documents to which it is a party and to perform
all the terms and conditions thereof to be performed by it. Each Transaction
Document to which it is a party is the 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 or other laws of
general application relating to or affecting the enforcement of creditors'
rights or by general principles of equity limiting the availability of equitable
remedies.
4.03. Liability for Finder's Fees. No liability for brokerage fees,
finder's fees, agent's commissions or other similar forms of compensation in
connection with this Agreement or any transaction contemplated hereby has been
incurred by Buyer.
4.04. No Conflict. The execution and delivery of each Transaction
Document by Buyer, the consummation of the transactions contemplated thereby by
Buyer and the fulfillment of and compliance with the terms and provisions
thereof by Buyer do not and will not (a) violate any provision of law or
administrative regulation or any judicial or administrative order, award,
judgment or decree applicable to Buyer or (b) conflict with, result in a breach
of or constitute a default under any agreement or instrument to which Buyer is a
party or by which Buyer is bound.
ARTICLE V
Pre-Closing Covenants of Seller
5.01. Certain Prohibited Transactions.
(a) Except as otherwise agreed to in writing by Buyer, from and after
the date hereof and until the Closing Date, Seller shall:
(i) Maintain the Assets in generally the same repair, order and
condition as on the date hereof consistent with Seller's practice prior
to the date hereof, and deliver such Assets to Buyer on the Closing Date
in such condition, ordinary wear and tear excepted;
(ii) Maintain in force insurance policies with respect to the
Assets in amounts and on terms substantially equivalent to those in
effect on the date hereof; and
(iii) Not enter into any contracts or agreements or other
transactions with respect to the Assets.
(b) Seller shall promptly notify Buyer in writing of the occurrence of
any matter or event prior to the Closing Date which is material and adverse to
the Assets.
(c) Seller shall not solicit, encourage or accept any proposal from any
other person for the acquisition of all or any portion of the Assets (other than
sales of inventory of Products and Optoblankets to FMP under the Existing
Distribution Agreement in the ordinary course of business).
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5.02. Access to Premises and Information. Seller will permit Buyer and
its authorized representatives to have full access to the premises, officers,
directors, employees and books and records of Seller relating to the Assets as
Buyer may request. No investigation or inquiry made by Buyer pursuant to this
Section 5.02, or made heretofore, shall in any way affect or diminish the
representations and warranties made by Seller in this Agreement.
5.03. Reasonable Commercial Efforts. Seller shall use their reasonable
commercial efforts to cause the conditions of closing set forth in Sections 8.01
and 8.02 to be satisfied as soon as practicable and in any event before December
31, 1998.
ARTICLE VI
Pre-Closing Covenants of Buyer
6.01. Reasonable Commercial Efforts. Buyer will use reasonable
commercial efforts to cause the conditions of closing set forth in Sections 8.01
and 8.03 to be satisfied.
ARTICLE VII
Post-Closing Covenants
7.01. Prohibition on Competition by Seller. (a) For a period of seven
(7) years from the Closing Date (the "Noncompetition Term"), Seller shall not,
directly or indirectly, engage or invest in, own, manage, operate, finance,
control or participate in the ownership, management, operation, financing or
control of, be associated with or in any manner connected with, lend its name
to, lend its credit to or render services or advice to, any business whose
products or activities compete in the medical market in whole or in part with
the Assets worldwide; provided, that Seller may purchase or otherwise acquire up
to (but not more than) one percent (1%) of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the Securities Exchange
Act of 1934. Seller agrees that this covenant is reasonable with respect to its
duration, geographical area and scope.
(b) During the Noncompetition Term, Seller will not, directly or
indirectly, either for itself or any other Person, solicit the business of any
Person known to Seller to be a customer of Buyer (whether or not Seller had
personal contact with such Person) with respect to products, services or
activities which compete in whole or in part with the Assets.
(c) In the event of a breach of Seller of any covenant set forth in
Sections 7.0 1(a) or (b), the term of such covenant will be extended by the
period of the duration of such breach.
(d) If Seller breaches the covenants set forth in Sections 7.01(a) or
(b), Buyer will be entitled to the following remedies:
(i) Damages from Seller; and
(ii) In addition to its right to damages and any other rights
it may have, to obtain injunctive or other equitable relief to restrain
any breach or threatened breach or otherwise to specifically enforce the
provisions of Sections 7.0 1(a) or (b), it being agreed
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that money damages alone would be inadequate to compensate Buyer and
would be an inadequate remedy for such breach.
(e) The existence of any claim or cause of action against Buyer, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
enforcement by the Buyer of Sections 7.01(a) or (b).
(f) It is the intention of the parties that the provisions of Sections
7.01(a) and (b) hereof shall be enforceable to the fullest extent permissible
under applicable law, but that the unenforceability (or modification to conform
to such law) of any provision or provisions thereof shall not render
unenforceable, or impair, the remainder thereof or of any other provision of
this Agreement. If any provision or provisions of Section 7.01(a) or (b) hereof
shall be deemed invalid or unenforceable, either in whole or in part, this
Agreement shall be deemed amended to delete or modify, as necessary, the
offending provision or provisions and to alter the bounds thereof in order to
render it valid and enforceable.
(g) Notwithstanding the provisions of Sections 7.0 1(a) and (b), Buyer
hereby acknowledges that Seller may manufacture, sell or license fiber optic
products other than the Assets so long as the manufacture, sale and/or licensing
of such other fiber optic products does not violate the provisions of Sections
7.01(a) and (b).
7.02. Consulting and Assistance From Seller. For a period of one (1)
year from and after the Closing, Seller shall provide consulting services and
assistance to Buyer, on a time and materials basis, in connection with the use
of the Assets and the use, manufacture, distribution and sale of the
Phototherapy System, including without limitation the Products and the
Optoblanket, as reasonably requested by Buyer from time to time.
7.03. Delivery of Technical Documentation and Other Assets. No later
than two (2) weeks after the Closing, Seller shall deliver to Buyer, at Seller's
cost, the Technical Documentation and other Assets at such address or addresses
as Buyer shall designate.
7.04. Existing Purchase Orders; Repair Components.
(a) Seller shall fulfill and perform on a timely basis all of its
obligations under existing purchase orders submitted by Buyer on or before the
Closing Date for Products, Optoblankets and/or repair components in accordance
with the terms of such purchase orders.
(b) For a period of one (1) year after the Closing, Seller agrees to
provide repair components with respect to use, manufacture, distribution and
sale of the Phototherapy System, including without limitation the Products and
the Optoblanket, pursuant to purchase orders submitted by Buyer on substantially
the same terms as such components are provided as of the date of this Agreement.
7.05. Prohibition on Competition by Buyer. During the Noncompetition
Term, Buyer shall not manufacture, sell or license the Assets for use in markets
other than the market for medical products worldwide. Buyer agrees that this
covenant is reasonable with respect to its duration, geographical area and
scope.
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ARTICLE VIII
Conditions
8.01. Mutual Conditions. The obligations of Seller and Buyer to
consummate this Agreement and the transactions contemplated hereby are subject
to the fulfillment, prior to or at the Closing, of the following condition
precedent:
(a) No Legal Bar. No governmental department, court, agency or
commission shall have instituted or notified Buyer or Seller of its intention to
institute any suit or proceeding to restrain or enjoin the consummation of this
Agreement or the transactions contemplated hereby or to nullify or render
ineffective this Agreement or such transactions if consummated, and no order or
decree so restraining or enjoining such consummation shall be in effect.
8.02. Conditions to the Obligations of Buyer. The obligation of Buyer to
consummate this Agreement and the transactions contemplated hereby are subject
to the fulfillment, prior to or at the Closing, of the following conditions
precedent:
(a) Accuracy of Representations and Warranties. The representations and
warranties of Seller herein contained shall have been true when made and, in
addition, shall be true on and as of the Closing Date in all material respects
(provided, that for purposes of indemnification under Section 9.01, such
materiality shall not be applicable) with the same force and effect as though
made on and as of the Closing Date. Buyer shall have received a certificate
dated the Closing Date signed by Seller certifying, in such detail as Buyer may
reasonably request, to the fulfillment of this condition.
(b) Performance of Agreements. Seller shall have performed all
obligations required to be performed by it hereunder at or prior to Closing.
Buyer shall have received a certificate dated the Closing Date signed by Seller
certifying, in such detail as Buyer may reasonably request, to the fulfillment
of this condition.
(c) Instruments of Transfer and Assumption of Liabilities. Seller shall
have executed and delivered to Buyer a ▇▇▇▇ of Sale and Assignment annexed
hereto as Exhibit B, and such other bills of sale, assignments, endorsements and
other instruments, reasonably satisfactory to Buyer, as shall be effective to
vest in Buyer all of Seller's right, title and interest in and to the Assets
(collectively, the "Transfer Instruments").
(d) Material Adverse Change. No material adverse change shall have
occurred to the Assets between the date of this Agreement and the Closing Date.
8.03. Conditions to the Obligations of Seller. The obligations of Seller
to consummate this Agreement and the transactions contemplated hereby are
subject to the fulfillment, prior to or at the Closing, of the following
conditions precedent:
(a) Accuracy of Representations and Warranties. The representations and
warranties of Buyer herein contained shall have been true when made and, in
addition, shall be true on and as of the Closing Date in all material respects
with the same force and effect as though made on and as of the Closing Date.
Seller shall have received a certificate dated the Closing Date signed by Buyer
certifying, in such detail as Seller may reasonably request, to the fulfillment
of this condition.
(b) Performance of Agreements. Buyer shall have performed all
obligations required to be performed by it hereunder at or prior to the Closing.
Seller shall have received a certificate dated the
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Closing Date signed by Buyer certifying, in such detail as Seller may reasonably
request, to the fulfillment of this condition.
ARTICLE IX
Indemnification
9.01. Indemnification by Seller. Seller hereby indemnifies and holds
Buyer and its directors, officers, employees, corporate affiliates and agents
("Buyer's Indemnified Persons") harmless from and against any and all loss,
cost, damage and expense, including but not limited to reasonable attorneys'
fees and expenses of litigation (collectively, "Losses"), suffered or incurred
by any Buyer's Indemnified Person (a) for nonperformance by Seller of any of its
obligations hereunder, (b) for any breach (not expressly waived in writing) of
the representations, warranties, covenants or agreements made hereunder by
Seller, (c) arising from any liability or obligation of Seller, (d) arising from
Seller's ownership, use and operation of the Assets prior to the Closing Date
and (e) arising from any infringement or alleged infringement of any patent,
copyright, trademark, trade secret or other intellectual property right or law
by any of the Assets. In addition, Seller agrees to indemnify Buyer's
Indemnified Persons, and to hold Buyer's Indemnified Persons harmless from and
against any all claims, loss, damage, liability, cost or expense whatsoever
(including all reasonable attorney's fees and expenses of litigation) resulting
to any Buyer's Indemnified Person by reason of or arising out of noncompliance
with the bulk transfer provisions of the Uniform Commercial Code or any
comparable state law to which the transactions contemplated hereby are subject.
9.02. Notice and Right to Defend Third Party Claims. Promptly, upon
receipt of notice of any claim, demand or assessment or the commencement of any
suit, action or proceeding in respect of which indemnity may be sought, any
Buyer's Indemnified Person seeking indemnification (the "Indemnitee") will give
notice thereof to the party from whom indemnification is sought (the
"Indemnitor"), within sufficient time to enable the Indemnitor to respond to
such claim or answer or otherwise plea in such action. Except to the extent that
the Indemnitor is materially and substantially prejudiced thereby, the omission
of such Indemnitee so to notify promptly the Indemnitor of any such claim,
demand, assessment, suit, action or proceeding shall not relieve the Indemnitor
from any liability which it may have to the Indemnitee. The Indemnitor will be
entitled to participate in and, to the extent that it may elect to do so, to
assume the defense, conduct or settlement thereof, using counsel approved by the
Indemnitee, which approval will not unreasonably be withheld. The Indemnitee
will cooperate with the Indemnitor in connection with any such claim, demand,
assessment, suit, action or proceeding. The Indemnitor shall not settle or
compromise any such claim, demand, assessment, suit, action or proceeding
without the prior written consent of the Indemnitee, unless the Indemnitor
provides the Indemnity with a full release from all adverse parties releasing
the Indemnitee from any liability and the Idemnitee is not required to pay any
amounts or take or refrain from taking any actions as a result thereof.
ARTICLE X
Miscellaneous
10.01. Expenses. Seller and Buyer shall bear all expenses incurred by
each of them in connection with the negotiation, preparation, execution and
performance of this Agreement and the other Transaction Documents.
10.02. Survival of Representations. Warranties and Indemnity. The
representations and warranties of each party hereto which are contained herein
or in any certificate or other document
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delivered pursuant hereto and the indemnification obligations of Seller
hereunder shall survive the Closing for a period of two (2) years from the
Closing Date, except with respect to Sections 3.03 (which shall survive
indefinitely) and 3.07 (which shall survive for the applicable statute of
limitations).
10.03. Further Assurances. At any time or from time to time after the
Closing, at the Buyer's request, Seller shall execute and deliver to Buyer such
other instruments and take such other actions as are reasonably necessary in
order to more effectively transfer, convey and assign to the Purchaser, and to
confirm the Purchaser's title to, all Assets and to put Buyer in actual
possession and operating control of the Assets. On and after the Closing Date,
Seller and Buyer shall take all appropriate action and execute all documents,
instruments or conveyances of any kind which may be necessary or advisable to
carry out any of the provisions hereof and to consummate the transactions
contemplated hereby.
10.04. Notices, All notices, demands and other communications which may
or are required to be given hereunder or with respect hereto shall be in
writing, shall be given either by personal delivery or by certified mail, return
receipt requested, and shall be deemed to have been given or made when
personally delivered or when received via certified mail, addressed to the
respective parties as follows:
(a) If to Seller:
Fiberstars, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Seller's EN:_______
or to such other address as Seller may from time to time designate by notice to
Buyer with respect tofuture notices, demands and other communications to Seller;
(b) if to Buyer:
Respironics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Buyer's EN: ▇▇-▇▇▇▇▇▇▇
or to such other address as Buyer may from time to time designate by notice to
Seller with respect to future notices, demands and other communications to
Buyer.
10.05. Postponement and Waiver. Any postponement or waiver pursuant to
this Agreement shall be in writing and shall be effective only in the specific
instance and for the purpose for which given. No failure or delay on the part of
any party in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies expressly specified in this Agreement are cumulative and are not
exclusive of any rights or remedies which any party would otherwise have.
-10-
10.06. Termination. (a) This Agreement may be terminated at any time
prior to the Closing Date:
(i) by mutual agreement of Seller and Buyer; and
(ii) by Buyer, on the one hand, and Seller, on the other hand,
if the Closing shall not have occurred on or before March 31, 1999;
provided, that this Agreement may not be so terminated by Buyer or by
Seller if the party seeking to terminate is in material breach of its
obligations hereunder.
10.07. Assignment. This Agreement shall not be assignable by any party
hereto, except that Buyer may assign this Agreement to any affiliate of Buyer.
10.08. Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and supersedes any and all other agreements between the
parties relating to the subject matter hereof.
10.09. Invalidity. In the event that any one or more of the provisions
contained in this Agreement, or in any other instrument referred to herein,
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any such other instrument.
10.10. Captions. The captions of Articles and Sections hereof are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions of this Agreement.
10.11. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts and upon facsimiles, each of which shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
10.12. Termination of Existing Distribution Agreement. Effective as of
the Closing Date, the Existing Distribution Agreement between Seller and FMP be
and it hereby is terminated and no further force and effect, except for these
provisions of the Existing Distribution Agreement which by their terms survive
termination and the right of first refusal contained in Section 16.03 which now
rests with Buyer as FMP's corporate parent.
[Signature Page follows]
-11-
10.13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
WITNESS the due execution of this Asset Purchase Agreement as of the day
and year first above written.
RESPIRONICS, INC.,
as Buyer
By
------------------------------
Title SR VP
---------------------------
FIBERSTARS, INC.,
as Seller
By
------------------------------
Title Chief Operating Officer
----------------------------
-12-
10.13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
WITNESS the due execution of this Asset Purchase Agreement as of the day
and year first above written.
RESPIRONICS, INC.,
as Buyer
By
-----------------------------------
Title
---------------------------------
FIBERSTARS, INC.,
as Seller
By
-----------------------------------
Title
---------------------------------
-12-
Exhibit A to Asset Purchase Agreement
PHOTOTHERAPY SYSTEM/FIBERSTARS TECHNOLOGY/OPTOBLANKET PORTION
The Fiber Optic Optoblanket Phototherapy System has been designed for
replacement of belitites in the treatment of hyperbilirubinomia (jaundice). It
has been developed for the purpose of lowering the serumbilirubin in a newborn
child. The optoblanket system utilizes a light to disintegrate the bilirubin so
that it can be easily discharged from the baby's body. The optoblanket system
consists of two parts: the fiber optic illuminator, which acts as the light
source for the system, and the light-emitting fiber optic blanket
("optoblanket"), which spreads the phototherapy light laterally onto the baby's
body for the treatment.
Optoblanket Portion:
The optoblanket is composed of a bundle of fibers whose ends have a
polished finish and are encircled together. The phototherapy can be performed by
wrapping the optoblanket onto the baby's body directly. The optoblanket is
attached to the lightbox.
Fiber Optic Illuminator/Fiberstars Technology:
Fiberstars manufactures several fiber optic illuminator variations which
incorporate Fiberstars patents and/or proprietary technology and are designed
specifically for the Phototherapy System. Engineering designs for the accurate
light alignment, ventilation and cooling, and filtering for the proper light
spectrum have been created for this system. An appropriate light level can thus
be generated and efficiently coupled into the fiber bundle.
The Phototherapy System includes, but is not limited to, products with
the following Specifications:
A-1
ILLUSTRATIVE SPECIFICATIONS
Illuminator:
Size: 12.13" W X 9.57" D X 4.5"H Weight: 14.8 pounds
Model: MD-1000 and MD-2000
Fiberoptic Cable:
Length: 5ft. from tip to boot
Fiberoptic Panel:
Overall Pad Size - Standard: 4" X 15" (Excluding the Boot)
Illuminated Area - Standard: 3" X 14"
Overall Pad Size - Neonatal: 5" X 7"
Illuminated Area - Neonatal: (Excluding the Boot) 4" X 6"
Optical Filter:
Light Bandwidth: 400 to 550 nanometers
Infrared (590 - 1100 nm) and Ultraviolet (200-370 nm) is reduced to less than 1%
with the help of Dichroic Reflector and Filter.
Irradiance Level:
Standard Panel - Level I Setting: 10uW/cm2/nm*
Standard Panel - Level H Setting: l5uW/cm2/nm*
Neonatal Panel - Level I Setting: 25uW/cm2/nm*
Neonatal panel - Level II Setting: 35uW/cm2/nm*
** Minimum Average Irradiance level of the illuminated area when the
illuminator is operated at 115 V ac.
Illuminator Lamp:
Lamp Type: 150W 21V Quartz Halogen, Fiberoptic Medical Products Part
No. FS-1 10
Lamp Life: 400 hours depending on the Irradiance Level Selector.**
* This is an average lamp life theoretically calculated as per the ANSI
standards when the illuminator is operated at 115 V ac.
Electrical Specification:
Operating Voltage: 110-120 V ac Chassis Leakage Current: Less than 50 ?A
Wattage: 200 W Ground Impedance: Less than 0.1 Ohm
Environmental Operating Temperatures:
15 degrees C to 30 degrees C (59 degrees F to 86 degrees F)
Humidity:
0 - 88 more or less 2% Relative Humidity at 32 more or less 2 degrees C
Storage Temperature:
0 degrees C to 45 degrees C (32 degrees F to 113 degrees F)
Storage Standard:
U.L. listed for the U.S. as Medical and Dental Equipment *UL 544) and
Health Care Applicant (UL 1431) standards; and, for Canada market as per
Electromedical Equipment (C22.2 No: 125) standards.
A-2
Illuminator:
Model: MD-2000-I
Size: 12.13" WX 9.57" DX4.5" H
Weight: 14.8 pounds
Fiberoptic Panels:
Model: EG-2000 Standard Panel
Overall Pad Size - Standard: 4"X15" (excluding the boot)
Illuminated Area - Standard: 3"X14"
Model: EG-2000N (Neonatal Panel)
Overall Pad Size - Neonatal: F"X7" (excluding the boot)
Illuminated Area - Neonatal: 4"X6"
Fiberoptic Cable: For both the panels
Length: 5 ft. from tip to boot
Optical Filter:
Light Bandwidth: 400 to 550 nanometers
Infrared (590-1100 nm) and Ultraviolet (200-370 nm) is reduced to less
than 1% with the help of Dichroic Reflector and Filter.
Irradiance Level:
Standard Panel - Level I Setting: 1OgW/cm2/nm*
Standard Panel - Level II Setting: 15gW/cm2/nm*
Neonatal Panel - Level I Setting: 2SgW/cm2/nm*
Neonatal Panel - Level II Setting: 35gW/cm2/nm*
*Minimum Average irradiance level of the illuminated area when the
illuminator is operated at 100/120/220/240 V-.
illuminator Lamps:
Lamp Type: 150 W, 2 V Quartz Halogen, Fiberoptic Medical Products
Part No. FS- 110
Lamp Life: 400 hours depending on the Irradiance Level Selector.**
**This is an average lamp life theoretically calculated as per the ANSI
standards when the illuminator is operated as 100/1 20/220/240V-.
Electrical Specifications:
Rated Voltage/Frequency: 100/120/220/240V-, 50/60 H2
Rated Input: 200 ▇▇▇▇▇
Chassis Leakage Current: Less than 50muA (Meets JEC requirements)
Ground Impedance: Less than 0.1 Ohm
Mode of Operation: Continuous
Fuse Ratings: For 100/120 V-Applications: Use T 2.5A, 250 V fuse
For 200/240 V-Applications: Use T 1.25A, 250 V fuse
Classification:
Protection Class: Class I
Protection Type:
Type BF
A-3
Environmental Conditions:
Transport & Storage:
1 Ambient Temperature Range: -40a to +700C
2 Relative Humidity Range, including Condensation: 10% to 100%
3 Atmospheric Pressure Range: 500 hPa to 1060 hPa
Operation:
1 Ambient Temperature Range: +150C to +300C
2 Relative Humidity Range: 0 to 88+2% at 32+20C
Protection Against Ingress of Water: Ordinary (IPXO)
Safety Standards:
Product is tested and certified by TUV Product Service Inc. in accordance to:
IEC 601-1:1988
Amendment 1 to IEC 601-1:1990
Med GV
Standard Features:
Dual Lamp Carousel
Dual Irradiance Selector Switch
Light Emission Shutter
Thermal Cut-off Switch
Line Interrupt Switch
Primary and Secondary Fused
Panel Locking Device
A-4
Exhibit B to Asset Purchase Agreement
▇▇▇▇ OF SALE AND ASSIGNMENT
For good and valuable consideration, receipt of which by FIBERSTARS,
NC., a California corporation ("Seller"), is hereby acknowledged, and pursuant
to the Asset Purchase Agreement dated as of December 30, 1998 (the "Agreement"),
between Seller and RESPIRONICS, NC., a Delaware corporation ("Buyer"), Seller
hereby grants, assigns and transfers to Buyer, its legal successors and assigns,
the Assets, as defined in the Agreement, consisting generally (without limiting
or varying the terms of the Agreement) of the Phototherapy System (as defined in
the Agreement) and all assets (personal, tangible and intangible) and properties
of Seller relating to the Phototherapy System (as more fully defined in the
Agreement, the "Assets"), to have and to hold the same unto Buyer, its
successors and assigns forever.
Seller warrants and represents to Buyer that Seller is the lawful owner
of the Assets, free from any claim of ownership or Lien (as defined in the
Agreement) of any others; Seller will defend Buyer's title to the Assets against
any claims of Liens or ownership whatsoever.
Seller agrees to take any and all such further action and execute and
deliver any and all such further documents as may be reasonably necessary, in
Buyer's reasonable opinion, to vest title to the Assets in Buyer.
Dated: December 30, 1998
FIBERSTARS, INC.
By:
---------------------------------
Title:
---------------------------------
▇-▇
Exhibit C to Asset Purchase Agreement
ALLOCATION OF PURCHASE PRICE
[See attached.]
C-1
Form 8594
??? No. 1545-1021
(??????????)
Asset Acquisition Statement ------------------------
Under Section 1060
Department of the Treasury Attachement
Internal Revenue Service ??????????? No. 61
-----------------------------------------------------------------------------------------------------
Name as shown on return Identification number as shown on return
RESPIRONICS, INC. ▇▇-▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------
Check the box that identifies you [x]Buyer [ ]Seller
-----------------------------------------------------------------------------------------------------
Part I General Information - To be completed by filers.
-----------------------------------------------------------------------------------------------------
1 Name of other party to the transaction Other party's identification number
FIBERSTARS, INC. ▇▇-▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------
Address (number, street and room or suite no.)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------
City or town, state, and ZIP code
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------
2 Date of sale 3 Total Sale Price
DECEMBER 30, 1998 826,000
-----------------------------------------------------------------------------------------------------
Part II Assets Transferred - To be completed by all filers of an original statement
-----------------------------------------------------------------------------------------------------
4 Assets Aggregate Fair Market Value (Actual Amount for Class I) Allocation of Sales Price
-----------------------------------------------------------------------------------------------------
Class I $ $
-----------------------------------------------------------------------------------------------------
Class II $ $
-----------------------------------------------------------------------------------------------------
Class III $ $
-----------------------------------------------------------------------------------------------------
Class IV $ 826,000 $ 826,000
-----------------------------------------------------------------------------------------------------
Total $ 826,000 $ 826,000
------------------------------------------------------------------------------------------------------
5 Did the buyer and seller provide for an allocation of the sales price in the sales contract or in
another written document signed by both parties? .................................... [ ]Yes [ ]No
If "Yes," are the aggregate fair market values listed for each of asset Classes I, II, III and IV the
amounts agreed upon in your sales contracts or in a separate written document? .... [ ]Yes [ ]No
------------------------------------------------------------------------------------------------------
6 In connection with the purchase of the group of assets, did the buyer also purchase a license of
a covenant not to compete or enter into a lease agreement, employment contract, management
contract or similar arrangement with the seller (or managers, directors, officers or employees
of the seller)? ..................................................................... [ ]Yes [ ]No
If "Yes," specify (a) the type of agreement, and (b) the maximum amount of consideration (not
including interest) paid or to be paid under the agreement. See the instructions for line 6.
------------------------------------------------------------------------------------------------------
a) COVENANT NOT TO COMPETE
------------------------------------------------------------------------------------------------------
B) NO SPECIFIED AMOUNT; COVENANT INCLUDED IN SALES CONTRACT
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
For Paperwork Reduction Act Notice, see instructions. Form 8594 (Rev. 1-96)
Form 8594 (Rev. 1-96) Page 2
------------------------------------------------------------------------------------------------------
Part III Supplemental Statement - To be completed only if amending an original statement of
previously filed supplemental statement because of an increase or decrease in consideration.
------------------------------------------------------------------------------------------------------
7 Assets Allocation of Sales Price Income or (Decrease) Redetermined Allocation of Sales Price
as Previously Reported
------------------------------------------------------------------------------------------------------
Class I $ $ $
------------------------------------------------------------------------------------------------------
Class II $ $ $
------------------------------------------------------------------------------------------------------
Class III $ $ $
------------------------------------------------------------------------------------------------------
Class IV $ $ $
------------------------------------------------------------------------------------------------------
Total $ $ $
------------------------------------------------------------------------------------------------------
8 Reason(s) for increase or decrease. Attach additional sheets if more space is needed.
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
9 Tax year and tax return form number with which the original Form 8594 and any supplemental
statements were filed.
------------------------------------------------------------------------------------------------------
Exhibit D to Asset Purchase Agreement
FIBER OPTIC ILLUMINATOR BY PART NUMBER
MD-1000
MD-2000
DM-2000-I
Plus parts therto for waranty replacements
D-1
