**Exhibit 10.4**

**ASSET PURCHASE AGREEMENT**

 

This Asset PurchaseAgreement (the “Agreement”) is entered into as of this 18th day of  January, 2002 (the “Effective Date”) by andbetween Sterion Incorporated (“Buyer”) and Bellingham Medical, Inc. (“Seller”).

 

**RECITALS****:**

 

A.            Sellerconducts a business (the “Business”) which manufactures, sells and distributeswound closure strips and other products as described on Exhibit A (the“Products”).

 

B.            Buyerdesires to purchase and assume from Seller, and Seller desires to sell andtransfer to Buyer certain of the assets and liabilities of Seller relating tothe Business, upon the terms and subject to the conditions set forth herein;

 

**AGREEMENTS****:**

 

**NOW, THEREFORE**, in consideration of theforegoing, of the mutual promises herein contained and of other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto, intending to be legally bound, hereby agreeas follows:

 

 

ARTICLE1.

PURCHASEOF ASSETS; NO ASSUMPTION OF LIABILITIES

 

1.1.          Purchase of Assets. Subject to the terms and conditions of this Agreement, Seller agrees onthe Closing Date (as defined in this Agreement) to assign, sell, transfer,convey, and deliver to Buyer, and Buyer agrees on the Closing Date to purchase fromSeller, all of the assets and personal property of Seller (excepting only theassets specifically identified as “Excluded Assets” in Section 1.2 below)related to or used in the operation of the Business, wherever the same may belocated (collectively referred to as the “Purchased Assets”) as follows:

 

a.                                       All furniture,equipmcent, machinery and tooling (“Equipment”) described in Exhibit 1.1(a)hereto;

 

b.                                      All intangiblepersonal property, business records, telephone numbers, and customer lists andgoodwill (together with all documents, records, files, computer tapes or discs,or other media on or in which the same may be evidenced or documented)(“Intangible Property”), including without limitation the following:

 

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(i)                                     The corporatename of Secller and all assumed names under which it conducts the Business;

 

(ii)                                  All tradenames,trademarks or service mark registrations and applications, common lawtrademarks, copyrights and copyright registrations and applications(“Trademarks”) as identified on Exhibit 1.1(b)(ii) hereto and all goodwillassociated therewith;

 

(iii)                               All domesticand foreign letters patent, patent applications, and patent and know-howlicenses (“Patents”) as listed on Exhibit 1.1(b)(iii) hereto; and

 

(iv)                              All technology,know-how, trade secrets, manufacturing processes, formulae, drawings, designsand computer programs related to or used or useful in the Business, and alldocumentary evidence thereof (“Technology”) as listed on Exhibit 1.1(b)(iv) hereto;

 

(v)                                 All of Seller’sbusiness records and files, relating to the Business and Purchased Assets,including, without limitation, customer lists and records, sales information,supplier records, cost and pricing information, and other records and copies ofsuch records on whatever media such records or copies are maintained (the“Business Records”); provided however that Seller may keep a copy of suchrecords as may be necessary for purpose of government or similar record keepingrequirements.

 

c.                                       All inventory,materials, supplies and work-in-progress as of the Closing Date (“Inventory”);

 

d.                                      All licensesand permits, to the extent transferable (“Licenses and Permits”) as set forthin Exhibit 1.1(e) hereto;

 

e.                                       All rights ofSeller under contracts, agreements, commitments and other arrangements relatingto the Business to which Seller is a party or is otherwise bound (the“Contracts”), listed on Exhibit 1.1(f) hereto, including, without limitation,all contracts:

 

(i)                                     which restrictsin any manner Seller’s right to compete with anyone in any part of the world orrestricts Seller’s right to sell to or purchase from anyone;

 

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(ii)                                  for the paymentor receipt of license fees or royalties to or from any person or entity;

 

(iii)                               of brokerage,agency, representation, distribution, or franchise;

 

(iv)                              for theadvertisement, display or promotion of any of the Products of the Seller;

 

(v)                                 for service,consulting or management affecting any of the Assets or the Business;

 

(vi)                              which is aguaranty, performance, bid or completion bond, or surety or indemnificationcontract;

 

(vii)                           which requiresthe making of a charitable contribution; or

 

(viii)                        which providesfor the receipt or expenditure by Buyer in excess of $15,000 at any timefollowing the Closing Date.

 

(ix)                                which therequirements for performance extend beyond one (1) year from the date of thisAgreement.

 

Notwithstanding the listingof contracts on Exhibit 1.1(f), only those specifically designated thereon as acontract to be assumed by Buyer shall be considered an Assumed Contract(collectively, the “Assumed Contracts”).

 

1.2.          Excluded Assets. Notwithstanding anything herein to the contrary, Buyer does notpurchase, and Seller does not sell, any of the following assets (“ExcludedAssets”):

 

a.                                       All cash orcash equivalents on hand or on deposit at any bank as of the Closing Date.

 

b.                                      Any interest inreal property.

 

c.                                       All accountsreceivable of Seller.

 

d.                                      All claims orcauses of action which seller may have relating to Excluded Assets or relatingto Excluded Liabilities.

 

e.                                       Seller’scorporate minute book, stock records, and similar records, including financialrecords and tax returns.

 

f.                                         All of Seller’srights in Contracts which are not Assumed Contracts.

 

g.                                      All assets inany of Seller’s Employee Plans.

 

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h.                                      Seller’s rightsunder this Agreement.

 

1.3.          Assumption of Liabilities.  On the Closing Date, Buyer hereby assumes the followingobligations and liabilities (the “Assumed Liabilities”):

 

a.                                       All obligationsarising from and after the Closing Date under any contracts specificallyidentified in Schedule 1.1(f) as the Assumed Contracts (provided that Buyerdoes not assume, and Seller shall pay, all past-due obligations thereunder).

 

b.                                      Any liabilitiesof Seller specifically identified on Exhibit 1.3(b) hereto, but only in theamounts set forth on Exhibit 1.3(b).

 

1.4.          Exclusion of Liabilities.  Except for the foregoing Assumed Contracts and the AssumedLiabilities, Buyer shall not assume any liabilities, obligations orundertakings of Seller of any kind or nature whatsoever, whether fixed orcontingent, known or unknown, determined or determinable, due or not yet due(“Excluded Liabilities”).  Without limitingthe generality of the foregoing sentence, the Excluded Liabilities include:

 

a.                                       Liabilities orobligations arising out of an event that occurred, Products sold or servicesperformed by Seller, or Seller’s ownership of its assets or the operation ofthe Business on or prior to, the Closing Date; provided, however, that Buyer shall be responsible for deliveringProducts which were sold prior to the Closing Date and for which Seller hasaccepted and entered the order as of the Closing Date.

 

b.                                      Liabilities andobligations of Seller for accrued audit fees, accrued commissions, accruedpayroll (including associated employer taxes or employee withholdings), accruedinsurance premiums, and garnishments payable of the Business incurred by Seller

 

c.                                       Liabilities orobligations for foreign, federal, state, county, local or other governmentaltaxes of Seller relating to the operation of the Business or the ownership ofthe Assets on or prior to the Closing Date;

 

d.                                      Liabilities orobligations related to or arising out of any Employee Plan, workers’compensation claim or any other liabilities to employees or former employees ofSeller;

 

e.                                       Liabilities orobligations arising out of any litigation or administrative or arbitrationproceeding to which Seller is a party or any claims by or against Sellerarising from events or facts existing on or prior to the Closing Date;

 

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f.                                         Liabilities orobligations resulting from any breach by Seller on or prior to the Closing Dateof any contract or agreement to which the Seller is party or by which theSeller is bound, including, without limitation, any Assumed Contract;

 

g.                                      Liabilities orobligations resulting from any violation by Seller, the Shareholders, or anyemployee, director or agent of Seller, or any predecessor for which Seller maybe liable, of any applicable foreign, federal, state, county, local or othergovernmental laws, decrees, ordinances or regulations, or any permit, license,consent, certificate, approval or authorization issued pursuant to such laws,decrees, ordinances or regulations, including, without limitation, thoseapplicable to discrimination in employment, employment practices, wage andhour, retirement, labor relations, occupational safety, health, tradepractices, environmental matters, competition, pricing, product warranties,product liability and product advertising;

 

h.                                      Liabilities orobligations to any investment banker, broker, finder or other intermediarywhich has been retained by or is authorized to act on behalf of Seller who maybe entitled to or may claim any fee or commission from Buyer in connection withthe transactions contemplated by this Agreement.

 

i.                                          Liabilities orobligations (whether interest, principal, fees, penalties or otherwise) ofSeller (i) for borrowed money; (ii) evidenced by bonds, debentures, notes orother similar instruments, (iii) to pay the deferred purchase price of propertyor services, (iv) and any of the foregoing guaranteed by Seller.

 

j.                                          All accountspayable of Seller.

 

k.                                       Seller’sobligations under this Agreement.

 

1.5.          Sales and Use Tax. Buyer shall be responsible for payment of any sales or use taxassessable with respect to the transactions herein.

 

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ARTICLE2.

PURCHASEPRICE AND PAYMENT OF PURCHASE PRICE

 

2.1           Purchase Price. The purchase price (the “Purchase Price”) for the Purchased Assets andthe performance by Seller of its obligations under this Agreement shall beThree Hundred Fifty Thousand Dollars ($350,000), payable to the Seller in fullin immediately available funds on the Closing Date.

 

2.2           Allocation of Purchase Price.  The Purchase Price shall be allocated amongthe Purchased Assets as set forth in Exhibit 2.2.  The parties agree to report this transaction for federal taxpurposes in accordance with the allocations set forth in Exhibit 2.2.

 

 

ARTICLE3

EMPLOYEEMATTERS

 

3.1           Employees. During the period after the date of this Agreement, but before theClosing Date, Buyer will have the option of interviewing and making an offer inwriting of employment at will to those employees listed on Exhibit 3.1 hereto(each, a “**Selected Employee**”).While Seller will cooperate with Buyer to assist Buyer to hire and retain theservices of all Selected Employees, Buyer acknowledges and agrees that theSelected Employee has the final decision whether to transfer with the Businessand the failure of one or more Selected Employee(s) to accept an offer ofemployment from Buyer shall not be deemed to be a breach of thisAgreement.  Buyer shall have noobligation to make any offer of employment to any Selected Employee earlierthan thirty (30) days after the first public announcement made pursuant toSection 10.1.

 

3.2           Benefits. Each Selected Employee will be covered under the Employee Plans of Buyeravailable to other employees of Buyer who are employed in similar categories ofemployment.  Buyer shall offer eachSelected Employee the opportunity, as of the Closing Date, to participate inall of Buyer’s Employee Plans for which each such Selected Employee would beeligible under the guidelines for such plans. Before the Closing Date, Buyer shall provide to the Selected Employeessummaries of the material terms and conditions of and guidelines for Buyer’sEmployee Plans (including, but not limited to, medical and dental insuranceplans, life insurance plan, pension plan, savings plan, short-term andlong-term disability plans, employee stock ownership plan, vacation plan andseverance or termination plan).

 

 

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ARTICLE4

REPRESENTATIONSAND WARRANTIES

OFSELLER

Seller makes the followingrepresentations and warranties to Buyer with the intention that Buyer may relyupon the same, and acknowledges that the same shall be true as of the ClosingDate (as if made at the Closing) and shall survive the Closing of thistransaction.

 

4.1           Organization. Seller is a corporation duly organized, validly existing and in goodstanding under the laws of the State of Minnesota, has all requisite corporatepower and authority, corporate and otherwise, to own its properties and assetsand conduct the Business, as it is currently conducted.  Seller does not have any subsidiary andSeller is not a shareholder, partner or joint venturer with any other person orlegal entity.  Seller has not failed toqualify as a foreign corporation in any other state or states where suchfailure may have a material adverse effect on the Business.

 

4.2           Corporate Authority.  The Seller has all requisite power and authority to enter into and perform this Agreement.  The execution and delivery of this Agreementand the consummation of the transactions contemplated in this Agreement havebeen duly authorized by all requisite action of Seller’s Board of Directors andshareholders.  This Agreement has beenexecuted and delivered by a duly authorized officer of Seller and is a validand binding agreement of the Seller, enforceable against them in accordancewith its terms.

 

4.3           Financial Statements.

 

a.                                       Financial Statements.  Seller has furnished Buyer a true andcomplete copy of its audited balance sheets and statements of income for itsfiscal years ended December 31, 2000, and has furnished unaudited updatethereof as of and for the period ending December 31, 2001 (collectively the“Financial Statements”, all of which are attached as Schedule 4.3(a)hereto).  The audited FinancialStatements have been prepared in conformance with generally accepted accountingprinciples and procedures applied on a basis consistent with prior periods andwill fairly present in all material respects the financial condition of Selleras of the represented dates thereof and the results of Seller’s operations forthe periods covered thereby.  For purposesof this Agreement, the Financial Statements shall be deemed to include anynotes thereto.

 

b.                                      No AdverseChanges.  Since January 9, 2002, therehas not occurred or arisen (whether or not in the ordinary course of business,except subsection (iii) below): (i) any material adverse change in the in theBusiness, Purchased Assets, relationships with customers or suppliers,backlogs, sales, income, profit margins, assets, liabilities or financialcondition of Seller, (ii) any change in Seller’s accounting methods orpractices, (iii) any sale or transfer of any asset or any amendment of anyagreement of Seller whether or not  inthe ordinary course of business, (iv) any loss of or damage to the PurchasedAssets due to abuse, misuse, fire, damage, destruction or other casualty,whether or not covered by insurance, affecting any of the Purchased Assets orany portion of the

 

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Business (v) any labortrouble, (vi)  to Seller’s knowledge anyreasonably foreseeable increase in operating costs of the Business notcommensurate with increased production, (vii) any material warranty orliability claims or losses, or (viii) any other event or condition known toSeller to have occurred or to exist which, singly or in the aggregate,materially and adversely affect the Purchased Assets or the Business.

 

c.                                       UndisclosedLiabilities.  Except asset forth on Schedule 4.3(c),  Sellerhas no liabilities (whether known or unknown, accrued, absolute, contingent orotherwise) for which Seller would be liable in any single instance for morethan $1000 or in the aggregate more than $5000, that exist or arise out of anytransaction or state of facts existing on or prior to the Closing Date otherthan as and to the extent reflected or reserved against in the Financial Statements(none of which is a liability for borrowed money (other than under currentcredit facilities), breach of contract, breach of warranty, tort, infringementor lawsuit).

 

4.4           Tax Reports, Returns and Payment.  Seller has timely filed (subject toextension) all federal and applicable state, local, and foreign tax orassessment reports and returns of every kind required to be filed by Sellerwith relation to the Business, including, without limitation, income tax, salesand use tax, real estate tax, personal property tax and unemployment tax, andhas duly paid all taxes and other charges (including interest and penalties)due to or claimed to be due by any taxing authorities.  True and correct copies of the reports and returnsfiled by Seller during the last three tax years have been made available toBuyer.  Where required, timely estimatedpayments or installment payments of tax liabilities have been made to allgovernmental agencies in amounts sufficient to avoid underpayment penalties orlate payment penalties applicable thereto. During the three (3) years preceding the Closing Date, such income taxreturns have not been subjected to any examination or audit by governmentalauthorities.

 

4.5           Title to Assets. Other than the Excluded Assets and the employees of the Business, thePurchased Assets constitute all property owned by Seller which is necessary forthe conduct of the Business as now conducted. Seller is the sole owner of the Purchased Assets, and holds good andmarketable title thereto free and clear of all liens, charges, encumbrances orthird party claims or interests of any kind whatsoever, except for the currentliens for Seller’s bank debt.

 

4.6           Tangible Personal Property.  All personal property included in thePurchased Assets is in substantially the same operating condition as existed onJanuary 9, 2002, ordinary wear and tear excepted.  Seller hereby assigns to Buyer as of the Closing Date any and allwarranties covering such property existing as of the Closing Date.

 

                4.7           Inventory.  The Inventory reflected on Seller’s booksand records has been valued at the lower of cost or market in accordance withgenerally accepted accounting principles applied on a basis consistent withSeller’s past practices.  In the twelve(12) months prior to the Closing Date, there has not been a material change inthe level of Seller’s Inventory other than

 

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changes in the ordinary course of businessconsistent with Seller’s past practices. All raw material and work-in-progress Inventory included in thePurchased Assets is of a quality and quantity usable in the ordinary course ofbusiness.

 

4.8           Trademarks. Seller has filed the trademarks registrations for the Trademarks listedon Exhibit 1.1(b)(ii).  Exhibit 1.1(b)(ii)sets forth all Trademarks owned, used by, accruing to the benefit of ornecessary or useful to the operation of the Business by Seller.  The Trademarks and other names are notlicensed to or licensed from any other person or entity.  Seller has not received any notice or claimthat Seller’s title to or use of the Trademarks is impaired, encumbered orinvalid or is unenforceable by it.  Tothe best of Seller’s knowledge, Seller’s use of any Trademark does not infringeupon any intellectual property rights held by any other person or entity.  There is no claim or action pending orthreatened with respect to the Trademarks. To the best of Seller’s knowledge there has been no infringement orimproper use of any Trademark by any third party.

 

4.9           Patents.  Exhibit 1.1(b)(iii) sets forth all Patents owned, used by,accruing to the benefit of or necessary or useful to the operation of theBusiness by Seller. The Patents are not licensed to or licensed from any otherperson or entity.  Seller has notreceived any notice or claim that Seller’s title to or use of the Patents isimpaired, encumbered or invalid or is unenforceable by it.  To the best of Seller’s knowledge, Seller’suse of any Patent does not infringe upon any intellectual property rights heldby any other person or entity and there is no claim or action pending orthreatened with respect to the Patents. To the best of Seller’s knowledge there has been no infringement orimproper use of any Patent by any third party.

 

4.10         Licenses and Permits.  To the best of Seller’s knowledge, Seller possesses all necessarypermits, licenses and approvals, governmental or otherwise, without which itcould not conduct the Business in its present form and at its present location,all of which are listed on Exhibit 1.1(e). All of the Licenses and Permits are valid and in good standing andSeller has not received any notice that the Licenses and Permits will lapse orbe terminated by action of any governmental authority or otherwise.  Except as set forth on Exhibit 1.1(e), tothe best of Seller’s knowledge, all of the Licenses and Permits are freelyassignable and transferable to Buyer at the Closing and will continue to be infull force and effect after such transfer.

 

4.11         Agreements, Contracts and Commitments.

 

a.                                       Employee Plans.  There is no liability that will be imposedupon Buyer with respect to any Employee Plan. “Employee Plan” means any pension, retirement, disability, medical,dental, or other health insurance plan, life insurance or other death benefitplan, profit sharing, deferred compensation, stock option, bonus or otherincentive plan, vacation benefit plan, severance plan, or other employeebenefit plan or arrangements including, without limitation, any “pension plan”as defined in Section 3(2) of the Employee Retirement Income Security Act of1974, as amended (“ERISA”), and any “welfare plan” as defined in Section 3(1)of ERISA, whether or not any of the foregoing is funded, (i) to which

 

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Seller is a party or bywhich Seller is bound; or (ii) with respect to which Seller has made anypayments or contributions since January 1, 1998, or may otherwise have anyliability (including any such plan or other arrangement formerly maintained bySeller).

 

b.                                      Union andEmployment Contracts and Other Employment Matters.

 

(i)                                     Seller is not aparty to any collective bargaining agreement or any other written employmentagreement, nor is Seller a party to any other contract or understanding (oralor written) that contains any severance pay liabilities or obligations, exceptfor accrued, unused vacation pay or accrued and unused sick leave pay.

 

(ii)                                  During the lastthree (3) years Seller has experienced no work stoppages, walkouts or strikesor attempts by its employees to organize a union.

 

(iii)                               Except asdisclosed in Schedule 4.12(b)(iii) hereto, there have been no employee orex-employee lawsuits or claims, or any claims of unfair labor practices or thelike, in the past three (3) years.

 

d.                                      Breach.  Seller has performed in all materialrespects all obligations required to be performed by Seller to date under eachAssumed Contract; and neither Seller nor, to the knowledge of Seller, any otherparty is in default under any Assumed Contract.  No event has occurred which after the giving of notice or thelapse of time or otherwise would constitute a default under, or result in abreach of by Seller of any Assumed Contract.

 

e.                                       Copies ofContracts; Terms and Binding Effect.  Exhibit 1.1(f) contains an accurate and complete list of allContracts.  True, complete and correctcopies of all Assumed Contracts have been delivered to Buyer or are attached tothe Schedules where required by this Agreement; there are no amendments to ormodifications of, or agreements of the parties relating to, any such AssumedContracts which have not been delivered to Buyer; and each such AssumedContract is considered valid and binding on Seller to it in accordance with itsrespective terms (except as such enforceability may be limited by the effect ofbankruptcy, insolvency or similar laws affecting creditor rights generally orby general principles of equity).

 

4.12         Insurance. Seller maintains the insurance identified in Schedule 4.12.

 

4.13         Litigation and Related Matters.

 

a.                                       Except as setforth on Schedule 4.13, there are no claims (including, without limitation,workers’ compensation claims), action, suits, inquiries,

 

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investigations, orproceedings pending or threatened or imminent, relating to the Seller, thePurchased Assets, any portion of the Business, any of the Assumed Liabilitiesor the transactions contemplated by this Agreement, and, to the best knowledgeof Seller, there is no basis for any such claim, action or proceeding.  Seller has complied in all material respectswith all statutes, laws and regulations, orders, rules, regulations andrequirements (“Laws”) applicable to it, the Business, or the Purchased Assets,including Laws relating to environmental matters and Laws promulgated bygovernmental or other authorities, relating to the Purchased Assets and theoperation of the Business.  Withoutlimiting the generality of the foregoing, Seller has not used or storedhazardous, toxic or contaminating wastes or substances on any real property ordischarged or released any such substances upon any real property, including,but not limited to, underground injection of such substances, in violation ofany environmental Laws for which Seller would be liable in any single instancefor more than $1000 or in the aggregate more than $5000.

 

b.                                      Seller is notsubject to any material existing judgment, order, decree, or other actionaffecting the operation of the Business or the Purchased Assets or which wouldprevent, impede, or make illegal the consummation of the transactionscontemplated in this Agreement, or which would have a material adverse effecton Seller or on the Business or any of the Purchased Assets.

 

c.                                       No legalactions have been commenced against Seller with respect to the Business or thePurchased Assets within the three (3) years prior to the Closing Date.

 

4.14         Customers. Except as provided in Schedule 4.14, no single customer of Selleraccounted for more than ten percent (10%) of Seller’s revenues in the Businessduring the fiscal year ending prior to the date of this Agreement.  Seller has received no written notice thatany customer intends to cease doing business with Seller or materially alterthe amount of business or terms upon which it does with Seller.

 

4.15         Products.  Tothe best of Seller’s knowledge, all Products sold by Seller conform in allmaterial respects to all applicable laws, ordinances, regulations, trade andindustry standards, contract specifications and descriptive material oradvertisements associated with the Products. Schedule 4.15 discloses all written claims received by Seller within thelast three years based upon alleged breach of product warranty, strictliability in tort, or any other allegation of liability arising from Seller’ssale of goods, including Products (hereafter collectively referred to as“Product Liability Claims”).

 

4.16         Conflicts; Required Consents.  Except as provided in Schedule 4.16, neitherthe execution and delivery of this Agreement by Seller nor compliance by Sellerwith the terms and provisions of this Agreement will (a) conflict with orresult in a breach of (i) any of the terms,

 

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conditions or provisions of the Articles ofIncorporation, Bylaws or other governing instruments of Seller, (ii) anyjudgment, order, decree or ruling to which the Seller is a party, (iii) anyinjunction of any court or governmental authority to which either of them issubject, or (iv) any Assumed Contract; or (b) require the affirmative consentor approval of any third party other than the approval of Seller’sshareholders.

 

4.17         Binding Obligation. This Agreement constitutes the legal, valid and binding obligation ofSeller in accordance with the terms hereof. Seller is not subject to any charter, mortgage, lien, lease, agreement,contract, instrument, law, rule, regulation, order, judgment or decree, or anyother restriction of any kind or character, which would prevent theconsummation of the transactions contemplated in this Agreement.

 

4.18         Maintenance of Business.  Since January 9, 2002, Seller has conducted the Business only inthe usual and ordinary manner, including:

 

a.                                       except asdisclosed on Schedule 4.18, timely payment and discharge of all bills andmonetary obligations and timely and proper performance of all of itsobligations and commitments under all Assumed Contracts;

 

b.                                      preservationand maintenance of its Business assets, including customer, vendor and employeerelationships consistent with past practices;

 

c.                                       processing orshipment of any customer orders in a manner consistent with ordinary businesspractices.

 

Further, since January 9,2002, Seller has not:

 

d.                                      except asdisclosed on Schedule 4.16, to its knowledge, created or suffered to exist anyEncumbrances with respect to any of the Purchased Assets which has not beendischarged;

 

e.                                       sold ortransferred any assets of a type similar to the Purchased Assets, except forsales of inventory in the ordinary course of its business;

 

f.                                         made any changein the conduct or nature of the Business;

 

g.                                      changed anymethod of accounting; or

 

h.                                      waived anyrights that are the subject of this Agreement.

 

4.19         Absence of Certain Business Practices.  Neither Seller nor any officer, employee oragent of Seller, nor any other person acting on its behalf, has directly orindirectly, within the past five years given or agreed to give any gift orsimilar benefit to any customer, supplier,

 

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governmental employee or other person who isor may be in a position to help or hinder the Business (or assist Seller inconnection with any actual or proposed transaction) which (i) would subjectSeller to any damage or penalty in any civil, criminal or governmentallitigation or proceeding, or (ii) if not continued in the future, wouldmaterially adversely affect the Assets of the Business, or the prospects of theBusiness or which would subject Seller to suit or penalty in any private orgovernmental litigation or proceeding.

 

4.20         Disclosure. No material representation or warranty in this Agreement or in anycertificate, schedule, statement or other document furnished or to be furnishedpursuant hereto or in connection with the transactions contemplated herebycontains or will contain any untrue statement of a material fact or omits orwill omit to state any material fact required to be stated herein or therein ornecessary to make the statements herein or therein not misleading.

 

 

ARTICLE5

REPRESENTATIONSAND WARRANTIES OF BUYER

 

Buyer makes the following representationsand warranties to Seller with the intention that Seller may rely upon the same,and acknowledges that the same shall be true as of the Closing Date (as if madeat the Closing) and shall survive the Closing of this transaction.

 

5.1           Organization. Buyer is a corporation, duly organized, validly existing in goodstanding under the laws of the State of Minnesota, and has all requisitecorporate power and authority, corporate and otherwise, to own its propertiesand conduct the business in which it is presently engaged.

 

5.2           Corporate Authority.  Buyer has all requisite power and authority to enter into and perform this Agreement.  The execution and delivery of this Agreementand the consummation of the transactions contemplated in this Agreement havebeen duly authorized by all requisite action of Buyer’s Board of Directors andshareholders.  This Agreement has beenexecuted and delivered by a duly authorized officer of Buyer and is a valid andbinding agreement of the Buyer, enforceable against them in accordance with itsterms.

 

5.3           Breaches of Contracts; Required Consents.  Neither the execution and delivery of thisAgreement by Buyer, nor compliance by Buyer with the terms and provisions ofthis Agreement, will (a) conflict with or result in a breach of:  (i) any of the terms, conditions orprovisions of the Articles of Incorporation, Bylaws or other governinginstruments of Buyer, (ii) any judgment, order, decree or ruling to which theBuyer is a party, (iii) any injunction of any court or governmental authorityto which it is subject, or (iv) any agreement, contract or commitment listed onany Exhibit hereto and which is material to the financial condition of Buyer;or (b) require the affirmative consent or approval of any third party.

 

5.4           Binding Obligation.  This Agreement constitutes the legal, valid and bindingobligation of Buyer in accordance with the terms hereof.  Buyer is not subject to any charter,mortgage, lien, lease, agreement, contract, instrument, law, rule, regulation,order, judgment or

 

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decree, or any other restriction of any kindor character, which would prevent the consummation of the transactionscontemplated in this Agreement.

 

5.5           Disclosure. No material representation or warranty in this Agreement or in anycertificate, schedule, statement or other document furnished or to be furnishedpursuant hereto or in connection with the transactions contemplated herebycontains or will contain any untrue statement of a material fact or omits orwill omit to state any material fact required to be stated herein or therein ornecessary to make the statements herein or therein not misleading.

 

 

ARTICLE6

CONDITIONSPRECEDENT TO CLOSING

 

6.1           Conditions Precedent to Obligations of Seller.  The obligations of Seller under thisAgreement are subject to fulfillment prior to or at the Closing of each of thefollowing conditions, unless waived in writing by Seller:

 

a.                                       Representationsand Warranties.  Each ofthe representations and warranties made by Buyer in this Agreement or in anyinstrument, schedule, certificate or writing delivered by Buyer pursuant tothis Agreement, shall be true and correct when made and shall be true andcorrect at and as of the Closing Date as though such representation andwarranties were made or given on and as of the Closing Date.  Buyer shall have performed or complied withall obligations and covenants required by this Agreement to be performed orcomplied with by Buyer by the Closing Date. Seller shall have received a certificate signed by the appropriateofficer of Buyer to the foregoing effect.

 

b.                                      Absence ofCertain Legal Proceedings.  Nosuit or other legal proceeding shall have been commenced seeking to restrict orprohibit the transactions contemplated by this Agreement.

 

c.                                       Other Matters.  Buyer shall have delivered the documentsrequired under Section 7.3.

 

6.2           Conditions Precedent to Obligations of Buyer.  The obligations of Buyer under thisAgreement are subject to fulfillment prior to or at Closing of each of thefollowing conditions, unless waived in writing by Buyer:

 

a.                                       Representationsand Warranties.  Each ofthe representations and warranties made by Seller in this Agreement, or in anyinstrument, schedule, certificate or writing delivered by Seller pursuant tothis Agreement, shall be true and correct when made and as of the ClosingDate.  Seller shall have performed orcomplied with all obligations and covenants required by this Agreement to beperformed or complied with 

 

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by Seller by the ClosingDate.  Buyer shall have received acertificate signed by the appropriate officer of Seller to the foregoingeffect.

 

b.                                      Approvals;Absence of Certain Legal Proceedings.  All required approvals or consents shall have been obtained bySeller and no suit or other legal proceeding shall have been commenced seekingto restrict or prohibit the transactions contemplated by this Agreement.

 

c.                                       CorporateAuthorization.  All actionrequired by law, Seller’s Articles of Incorporation, Bylaws or otherwise to betaken by the Boards of Directors and shareholders of Seller to authorize theexecution, delivery and performance of this Agreement and the transactionscontemplated thereby shall have been duly and validly taken.

 

d.                                      Preservation ofBusiness.  Sellershall use commercially reasonable efforts to preserve intact its businessorganization and goodwill, keep available the services of its respectiveofficers and employees and maintain satisfactory relationships with thosepersons having business relationships with it.

 

e.                                       Other Matters.  Seller shall have delivered the documentsrequired under Section 7.2.

 

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ARTICLE7

CLOSING

 

7.1           Closing. The closing of the transaction contemplated by this Agreement(“Closing”) shall be held at the offices of Lindquist & Vennum P.L.L.P.,4200 IDS Center, Minneapolis, MN 55402 no later than 9:00 a.m. onFebruary 8, 2002, but effective at the close of business on such date (the “ClosingDate”).

 

7.2           Seller’s Deliveries.  Seller agrees to execute and/or deliver the following documentsto Buyer at the Closing:

 

a.                                       Allcertificates, schedules, exhibits, and attachments in completed form andspecifying the information required by the provisions of this Agreement.

 

b.                                      A certificateof the Secretary of Seller certifying as to (i) a copy of resolutions of theSeller’s Board of Directors which authorize the execution, delivery andperformance of this Agreement as having been duly adopted and as being in fullforce and effect on the Closing Date, (ii) a copy of resolutions of theshareholders of Seller which authorize this Agreement and the transactionscontemplated herein as having been duly adopted and as being in full force andeffect on the Closing Date, (iii) a copy of the Seller’s Articles ofIncorporation as certified by the Secretary of State of Minnesota in effect asof the Closing Date, and (iv) a true and correct copy of the Seller’s Bylaws ineffect as of the Closing Date.

 

c.                                       A certificateof good standing of Seller certified by the Secretary of State of Minnesota asof no more than two (2) days prior to the Closing Date.

 

d.                                      A Bill of Sale,a Trademark and Patent Assignment and instruments of assignment and transferfor the sale of the Purchased Assets.

 

e.                                       Instruments ofassumption of the Assumed Liabilities.

 

f.                                         Amendment toSeller’s Articles of Incorporation changing Seller’s name, in form complete andadequate for filing.

 

g.                                      All necessaryconsents under the Assumed Contracts.

 

h.                                      Such otherdocuments as Buyer may reasonably request for the purpose of assigning,transferring, granting, conveying, and confirming to Buyer or reducing to itspossession, any and all assets, property and rights to be assigned, conveyed,or transferred pursuant to the terms of this Agreement.

 

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7.3           Buyer’s Deliveries.  Buyer agrees to execute and/or deliver the following to Seller atthe Closing:

 

a.                                       The PurchasePrice.

 

b.                                      Instrument ofassumption of the Assumed Liabilities.

 

c.                                       A certificateof the Secretary of Buyer certifying as to (i) a copy of resolutions of theBuyer’s Board of Directors which authorize the execution, delivery andperformance of this Agreement as having been duly adopted and as being in fullforce and effect on the Closing Date, (ii) a copy of the Buyer’s Articles ofIncorporation as certified by the Secretary of State of Minnesota in effect asof the Closing Date, and (iii) a true and correct copy of the Buyer’s Bylaws ineffect as of the Closing Date.

 

d.                                      Such otherdocuments as Seller reasonably may request to carry out the transactionscontemplated under this Agreement.

 

 

ARTICLE8

POSTCLOSING OBLIGATIONS

 

8.1           Further Documents and Assurances.  At any time and from time to time after theClosing Date, each party shall, upon request of another party, execute,acknowledge and deliver all such further and other assurances and documents,including such documents as may be necessary or appropriate to perfect title inBuyer of the Trademarks, Patents and Technology and will take such actionconsistent with the terms of this Agreement, as may be reasonably requested tocarry out the transactions contemplated herein and to permit each party toenjoy its rights and benefits hereunder. If requested by Buyer, Seller further agrees to prosecute or otherwiseenforce in their own respective names for the benefit of Buyer, any claim,right or benefit transferred by this Agreement that may require prosecution orenforcement in Seller’s name.

 

8.2           Payment of Debts and Liabilities.  Seller shall pay all of its liabilities anddebts relating to the Excluded Liabilities in the ordinary course as the samebecome due.

 

8.3           Satisfaction of Liens on Purchased Assets. Sellershall take all actions necessary to satisfy all liens on the Purchased Assetsimmediately following Closing. Seller agrees to provide Buyer with evidenceacceptable to Buyer of such satisfaction.

 

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ARTICLE9

INDEMNIFICATION

 

9.1           Survival of Representations, Warranties and Agreements.The representations, warranties and agreements contained in this Agreement orin any certificate delivered pursuant to this Agreement shall survive theClosing Date and remain in full force and effect after the Closing Date for aperiod of one (1) year.

 

9.2           Indemnification by Seller.  For a period of one (1) year, Seller shallindemnify and hold Buyer harmless at all times from and after the date of thisAgreement, against and in respect of all damages, losses, costs and expenses(including reasonable attorney fees) which Buyer may suffer or incur inconnection with any of the following:

 

a.                                       Any claim,demand, action or proceeding asserted by a creditor of Seller or respecting anyliabilities of Seller that are included in the Excluded Liabilities.

 

b.                                      The materialbreach of any of the representations, warranties or covenants of Seller in thisAgreement.

 

c.                                       Any and allclaims by third parties arising out of Seller’s conduct of the Business or useor ownership of any assets, including Purchased Assets, on or prior to theClosing Date.

 

d.                                      Third partyproduct liability claims  filed withintwelve months following the Closing Date concerning products manufactured andsold by Seller or which are finished goods included in the Inventory on theClosing Date and sold in the Business after the Closing Date.

 

e.                                       Any reasonablecosts and expenses associated with defending against any of the foregoingclaims, liabilities, obligations, costs, damages, losses and expenses.

 

9.3           Indemnification by Buyer.  Buyer shall indemnify and hold Seller harmless at all times fromand after the date of this Agreement, against and in respect of all damages,losses, costs and expenses (including reasonable attorney fees) which Sellermay suffer or incur in connection with any of the following:

 

a.                                       Any claim,demand, action or proceeding asserted by any third party respecting anyliabilities that are included in the Assumed Liabilities.

 

b.                                      All claims bythird parties arising out of the conduct of the Business or use or ownership ofany of the Purchased Assets from and after the Closing (including, withoutlimitation, any product liability claims concerning Products which are sold byBuyer from and after the Closing Date, unless covered by Section 9.1(d)).

 

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c.                                       The breach ofany of the representations, warranties or covenants of Buyer in this Agreement.

 

d.                                      Any costs andexpenses associated with defending against any of the foregoing claims,liabilities, obligations, costs, damages, losses and expenses.

 

9.4           Cooperation; Notice.  In the event a party hereto (the “Indemnifying Party”) isindemnifying the other party hereto (the “Indemnified Party”), the IndemnifiedParty agrees to provide the Indemnifying Party such cooperation, information orassistance as the Indemnifying Party may reasonably request.  The Indemnified Party shall give promptnotice to the Indemnifying Party of each matter, claim, demand, fact or othercircumstances upon which a claim for indemnification (“Claim”) under thisArticle 9 is based.  Such notice shallcontain, with respect to each Claim, such facts and information as are thenreasonably available, and the specific basis for indemnification hereunder.

 

9.5           Defense of Claims. The Indemnifying Party shall have the right to assume defense of and tosettle any Claim asserted by a third party against the Indemnified Party withcounsel reasonably acceptable to the Indemnified Party so long as theIndemnifying Party is diligently defending such Claim; provided that theIndemnified Party may, at its expense, participate in such proceeding.  The Indemnifying Party shall not settle anyClaim without the consent of the Indemnified Party (which consent shall not beunreasonably withheld, conditioned or delayed), unless such settlement requiresno admission of liability on the part of the Indemnified Party and noassumption of any obligation or monetary payment for which the IndemnifiedParty has not been fully indemnified and protected against.  The Indemnified Party may not settle anyClaim for which it may seek indemnification from an Indemnifying Party withoutthe Indemnifying Party’s consent, such consent not to be unreasonably withheld,conditioned or delayed.

 

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ARTICLE10

GENERAL

 

10.1         Public Announcements.  None of the parties to this Agreement shall issue or make anypress release or other public statements with respect to this Agreement or thetransactions described herein to employees, customers, distributors, suppliersor other persons except and unless such release, statement or announcement hasbeen jointly approved by the parties (which approval shall not be unreasonablywithheld or delayed), except as may be required by applicable law (including,but not limited to the Securities Exchange Act of 1934) or by obligationspursuant to any listing agreement with any securities market or any securitiesmarket regulations.  If any party is sorequired to issue or make a press release, public statement or otherannouncement, such party shall inform the other party prior to issuing ormaking any such press release, public statement or announcement and shallreasonably consult with the other party regarding the content thereof ifpracticable.

 

10.2         Counterparts. This Agreement may be executed in counterparts and by different partieson different counterparts with the same effect as if the signatures theretowere on the same instrument.  ThisAgreement shall be effective and binding upon all parties to this Agreement atsuch time as all parties have executed a counterpart of this Agreement.

 

10.3         Notices.  Anynotice or other communication required or permitted hereunder shall be inwriting and shall be deemed to have been given, when received, if personallydelivered, and, three days after deposited, if placed in the U.S. mails fordelivery by registered or certified mail, return receipt requested, postageprepaid, addressed to the address of the respective party as stated under suchparty’s signature space on this Agreement. Addresses may be changed by written notice given pursuant to thisSection.

 

10.4         Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit ofthe parties to this Agreement and their successors or assigns.

 

10.5         Expenses. Except as otherwise provided herein, each party hereto shall each bearand pay for its own costs and expenses incurred by it or on its behalf inconnection with the transactions contemplated hereby, including, withoutlimitation, all fees and disbursements of lawyers, accountants, financialconsultants, brokers or finders incurred through the Closing Date.

 

10.6         Headings and Construction.  The descriptive headings of the several Articles and Sections ofthis Agreement and of the several Exhibits to this Agreement are inserted forconvenience only and do not constitute a part of this Agreement.  This Agreement shall not be construedagainst either party since each party has negotiated its provisions andcontributed to its drafting.

 

10.7         Entire Agreement; Modification and Waiver.  This Agreement, together with the Exhibitsand the related written agreements specifically referred to herein, representsthe only agreement among the parties concerning the subject matter hereof andsupersedes all prior

 

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agreements, whether written or oral, relatingthereto.  No purported amendment,modification or waiver of any provision hereof shall be binding unless setforth in a written document signed by all parties (in the case of amendments ormodifications) or by the party to be charged thereby (in the case ofwaivers).  Any waiver shall be limitedto the provision hereof and the circumstance or event specifically made subjectthereto and shall not be deemed a waiver of any other term hereof or of thesame circumstance or event upon any recurrence thereof.

 

10.8         Jurisdiction. The parties agree that the forum for any controversy arising under thisAgreement shall be exclusively in the State of Minnesota.

 

10.9         Governing Law. This Agreement and the legal relations between the parties shall begoverned by and construed in accordance with the laws of the State of Minnesota(without giving effect to principles of conflict of law thereof).

 

10.10       Attorneys Fees. In an action to enforce a party’s rights hereunder, the prevailing partyshall be entitled to recover its cost and expenses (including attorneys’ fees,whether or not suit is brought) from the other party.

 

10.11       Benefit.  Nothingin this Agreement, expressed or implied, is intended to confer on any personother than the parties to this Agreement or their respective successors orassigns, any rights, remedies, obligations or liabilities under or by reason ofthis Agreement.

 

10.12       Mediation.

 

a.                                       Any dispute,controversy or claim arising out of this agreement, or the interpretation,application, breach, termination or validity thereof, including any claim ofinducement by fraud or otherwise, shall, before submission to arbitration inaccordance with the following Section of this Agreement, first be mediatedthrough non-binding mediation in accordance with the Model Procedures for theMediation of Business Disputes promulgated by the Center for Public Resources(“**CPR**”) then in effect, exceptwhere those rules conflict with these provisions, in which case theseprovisions control.  The mediation shallbe conducted in Minneapolis, Minnesota and shall be attended by a seniorexecutive with authority to resolve the dispute from each of the operatingcompanies that are parties.

 

b.                                      The mediatorshall be an attorney specializing in business litigation who has at least 15years of experience as a lawyer with a law firm or corporation of over 10lawyers or was a judge of a court of general jurisdiction and who shall beappointed from the list of neutrals maintained by CPR.

 

c.                                       The partiesshall promptly confer in an effort to select a mediator by mutualagreement.  In the absence of such anagreement, the mediator shall

 

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be selected from a listgenerated by CPR with each party having the right to exercise challenges forcause and two peremptory challenges within 72 hours of receiving the CPR list.

 

d.                                      The mediatorshall confer with the parties to design procedures to conclude the mediationwithin no more than 45 days after initiation. Under no circumstances shall the commencement of arbitration underSection 11.13 below be delayed more than 45 days by the mediation processspecified herein.

 

e.                                       Each partyagrees to toll all applicable statutes of limitation during the mediationprocess and not to use the period or pendency of the mediation to disadvantagethe other party procedurally or otherwise. No statements made by either side during the mediation may be used bythe other during any subsequent arbitration.

 

f.                                         Each party hasthe right to pursue provisional relief from any court, such as attachment,preliminary injunction, replevin, etc., to avoid irreparable harm, maintain thestatusquo, or preserve the subject matter of the arbitration,even though mediation has not been commenced or completed.

 

10.13       Arbitration of Disputes.

 

a.                                       Any dispute,claim or controversy arising from or related in any way to this Agreement orthe interpretation, application, breach, termination or validity thereof,including any claim of inducement of this Agreement by fraud or otherwise, willbe submitted for resolution to arbitration pursuant to the commercialarbitration rules then pertaining of the CPR, except where those rules conflictwith these provisions, in which case these provisions control.  The arbitration will be held in Minneapolis,Minnesota.

 

b.                                      The panel shallconsist of one arbitrator chosen from the CPR Panels of Distinguished Neutralswho is a lawyer specializing in business litigation with at least 15 yearsexperience with a law firm or corporation of over 10 lawyers or was a judge ofa court of general jurisdiction.

 

c.                                       The partiesagree to cooperate (1) to obtain selection of the arbitrator within 30 days ofinitiation of the arbitration, (2) to meet with the arbitrator within 30 daysof selection and (3) to agree at that meeting or before upon procedures fordiscovery and as to the conduct of the hearing which will result in the hearingbeing concluded within no more than 9 months after selection of the arbitratorand in the award being rendered within 60 days of the conclusion of thehearings, or of any post-hearing briefing, which briefing will be completed byboth sides with 20 days

 

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after the conclusion of thehearings.  In the event no suchagreement is reached, the CPR will select an arbitrator, allowing appropriatestrikes for reasons of conflict or other cause and three peremptory challengesfor each side.  The arbitrator shall seta date for the hearing, commit to the rendering of the award within 60 days ofthe conclusion of the evidence at the hearing, or of any post-hearing briefing(which briefing will be completed by both sides in no more than 20 days afterthe conclusion of the hearings), and provide for discovery according to thesetime limits, giving recognition to the understanding of the parties hereto thatthey contemplate reasonable discovery, including document demands anddepositions, but that such discovery be limited so that the time limitsspecified herein may be met without undue difficulty.  In no event will the arbitrator allow either side to obtain morethan a total of 40 hours of deposition testimony from all witnesses, includingboth fact and expert witnesses.  To thatend each of the parties hereto agrees to pursue no more than the followingdiscovery in the aggregate from all parties and non-parties to the action: atotal of no more than 20 requests for documents (including subparts) set forthin no more than two separately served document demands; a total of no more than20 interrogatories (including subparts) set forth in no more than twoseparately served sets of interrogatories. In the event multiple hearing daysare required, they will be scheduled consecutively to the greatest extentpossible.

 

d.                                      The arbitratorshall render its award following the substantive law of Minnesota.  The arbitrator shall render an opinionsetting forth findings of fact and conclusions of law with the reasons thereforstated.  A transcript of the evidenceadduced at the hearing shall be made and shall, upon request, be made availableto either party.

 

e.                                       To the extentpossible, the arbitration hearings and award will be maintained in confidence.

 

f.                                         The UnitedStates District Court for the District of Minnesota may enter judgment upon anyaward.  In the event the panel’s awardexceeds $5 million in monetary Damages or includes or consists of equitablerelief, then the court shall vacate, modify or correct any award where thearbitrators’ findings of fact are clearly erroneous, and/or where thearbitrators’ conclusions of law are erroneous; in other words, it willundertake the same review as if it were a federal appellate court reviewing adistrict court’s findings of fact and conclusions of law rendered after a benchtrial.  An award for less than $5million in Damages and not including equitable relief may be vacated, modifiedor corrected only upon  the groundsspecified in the Federal Arbitration Act. The parties consent to the jurisdiction of the above-specified Court forthe enforcement of these provisions, the entry of judgment on any award, andthe vacatur, modification and correction of any award as

 

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above specified.  In the event such Court lacks jurisdiction,then any court having jurisdiction of this matter may enter judgment upon anyaward and provide the same relief, and undertake the same review, as specifiedherein.

 

g.                                      Each party hasthe right before or during the arbitration to seek and obtain from theappropriate court provisional remedies such as attachment, preliminaryinjunction, replevin, etc. to avoid irreparable harm, maintain the statusquo, or preserve the subject matter of the arbitration.

 

h.                                      EACH PARTYHERETO WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY.

 

i.                                          EACH PARTYHERETO WAIVES ANY CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES FROM THE OTHER.

 

j.                                          EACH PARTYHERETO WAIVES ANY CLAIM OF CONSEQUENTIAL DAMAGES FROM THE OTHER.

 

 

 

[Signaturesto Asset Purchase Agreement on next page]

 

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Each of the parties heretohas caused this Asset Purchase Agreement to be executed in the mannerappropriate to each, all as of the day and year first above written.

 
|   | STERION INCORPORATED     |
|--------|--------------------------|
|   |                     |   |
|   |                     |   |
|   | By:                      | /s/  J. David Berkley |
|   |                     | J. David Berkley, President |
|   |                     |   |
|   | Address:                 | 13828 Lincoln Street NE |
|   |                     | Ham Lake, MN  55304 |
|   |                     |   |
|   | BELLINGHAM MEDICAL, INC. |
|   |                     |   |
|   |                     |   |
|   | By:                      | /s/  Godfrey Bellingham |
|   |                     | Godfrey Bellingham, Chairman |
|   |                     |   |
|   | Address:                 | 2401 Pilot Knob Road |
|   |                     | Mendota Heights, MN 55120 |
|   |                     |   |
|        |                          |  |  |  |

 

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