Exhibit 10.1

















 

EXHIBIT 10.1




ASSET PURCHASE AGREEMENT




THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered
into as of October 31, 2005, between Pro-Dex, Inc., a Colorado corporation with
offices located at 151 East Columbine Avenue, Santa Ana, California 92707 ("Purchaser"),
and IntraVantage, Inc., a Delaware corporation with offices located at 2950
Xenium Lane North, Suite 148, Plymouth, Minnesota, 55441-2623 ("Seller").


R E C I
T A L S


A.        Seller owns and operates a dental products business
(the "Business").


B.         Purchaser desires to acquire from Seller, and Seller
desires to sell to Purchaser, all of the Assets (as defined below) used by
Seller in the operation of the Business.


NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:


ARTICLE
I


DEFINED TERMS


The following capitalized terms, when used in this Agreement,
shall have the meanings set forth below, unless the context clearly indicates
otherwise.



1.1             
"Affiliate" has the meaning set
forth in Rule 12b-2 of the regulations promulgated under the Securities
Exchange Act of 1934.



1.2             
"Agreement" means this Asset
Purchase Agreement.



1.3             
"Amendment to Supply Agreement"
means the Amendment to Supply Agreement, dated June 17, 2005, between Purchaser
and Seller.



1.4             
"Amendment No. 2 to Supply Agreement" means the Amendment No. 2 to Supply Agreement, dated
September 1, 2005, between Purchaser and Seller.



1.5             
"Assets" means all right, title and
interest in and to all of the assets of Seller set forth on Attachment 1.5.





1.6             
"Assignment Agreements" means the
assignment agreements in the forms attached as Exhibit B, under which
Seller will assign, and Purchaser will assume, all of Seller's right, title and
interest in and to all of those Assets which are contracts, agreements,
Purchased Intellectual Property and permits.

 









































1.7             "Assumed Liabilities" means the
liabilities set forth on Attachment 1.7, and only the liabilities set
forth on Attachment 1.7.  The Assumed Liabilities shall not include any
liability of Seller which is not expressly included on Attachment 1.7.



1.8             "Bill of Sale" means the bill of
sale in the form attached as Exhibit C, under which Seller will sell,
transfer, assign and convey to Purchaser all of Seller's rights, title and
interest in and to all of those Assets which are tangible personal property.



1.9           
"Business" means the dental
products business owned and operated by Seller.



1.10         
"Closing" means the closing of the
purchase and sale of the Assets in accordance with this Agreement.



1.11         
"Closing Date" means
the date on which Closing will take place, as specified in Section 3.1.



1.12         
"Credit Facility" means
Seller's credit facility specified in Section 2.2(d).



1.13         
"Disclosure Schedule" means the disclosure schedules described in the preamble to
Article IV and attached hereto as Exhibit A.



1.14         
"Governmental Authority" shall mean any federal, state, local or foreign governmental,
administrative or regulatory authority, agency, commission, tribunal, court or
other body.



1.15         
"Installment Payments" means the installment payments payable by Purchaser to Seller
pursuant to Section 2.2(b).



1.16         
"Liabilities" means all
indebtedness, claims, liabilities, obligations, responsibilities, losses,
damages, judgments, punitive damages, economic damages, treble damages, costs
and expenses (including, without limitation, reasonable attorney, expert,
engineering and consulting fees and costs and any fees and costs associated
with any investigation, feasibility, or remedial action studies or
transportation, disposal or other remedial actions), fines, penalties and
monetary sanctions, and interest, whether accrued, absolute or contingent,
known or unknown, and whether or not of a kind required by generally accepted
accounting principles to be set forth on a financial statement or in notes
thereto.



1.17         
"License Agreement" means
the License Agreement in the form attached as Exhibit D, whereby
Purchaser shall license to Seller all Purchased Intellectual Property for use
in conjunction with any non-dental product or application.



1.18         
"Losses" means any
demand, claims, actions, suits, proceedings, assessments, judgments, awards,
costs, losses, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees and related costs).

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1.19         
"Person" means an individual, a
partnership, a corporation, a limited liability company, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).



1.20         
"Purchase Price" means
the purchase price to be paid for the Assets in accordance with Section 2.2.



1.21         
"Purchase Price Adjustment" has the
meaning set forth in Section 2.3.



1.22         
"Purchaser" means
Pro-Dex, Inc., a Colorado corporation.



1.23         
"Purchased Intellectual
Property" means Seller's intellectual property
set forth on Schedule 4.7.



1.24         
"Restricted Territory" means all states, territories, districts, provinces and
commonwealths of the United States, and Canada and throughout the world in
which Seller has conducted any aspect of the Business, and all states,
territories, districts and commonwealths of the United States, Canada and
throughout the world in which Purchaser conducts its business (including,
without limitation, the Business) hereafter.



1.25         
"Royalty Agreement" means the
Royalty Agreement in the form attached as Exhibit E, whereby Purchaser
agrees to make certain royalty payments to Seller for the five year period
immediately following the Closing Date.



1.26         
"Seller" means IntraVantage, Inc.,
a Delaware corporation.   



1.27         
"Seller's Knowledge" means
(i) the actual knowledge of the directors of Seller, and (ii) the actual
knowledge, after reasonable investigation, of any executive officer, or key
employee (identified on Attachment 1.27 hereto) of Seller.



1.28         
"Supply Agreement" means
the Supply Agreement, dated June 28, 2004, between Purchaser and Seller.



1.29         
"Termination and Release Agreement" means the Termination and Release Agreement in the form attached
as Exhibit F, whereby Purchaser and Seller shall terminate the Supply
Agreement, the Amendment to Supply Agreement, and the Amendment No. 2 to Supply
Agreement and release the other party from its respective obligations under
such agreements; provided, however, that Sections 10 and 11 of the Supply
Agreement shall survive such termination and release.



1.30         
"UCC Termination Statements" means
the UCC3 Termination Statements in the forms attached hereto as Exhibit H.


ARTICLE
II


PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF
LIABILITIES

 

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2.1             Sale of Assets.  Subject to the
terms and conditions set forth in this Agreement, Purchaser agrees to purchase
from Seller, and Seller agrees to sell, transfer, convey and deliver to
Purchaser, all of the Assets at the Closing for the consideration specified in Section
2.2 below, subject to the adjustment in Section 2.3 below.  In
addition, at the Closing, Purchaser agrees to assume and become responsible for
all of the Assumed Liabilities.  Purchaser will not assume or have any
responsibility, however, with respect to any other obligation or liability or
Seller not specifically included within the definition of Assumed Liabilities.



2.2             
Purchase Price.  The Purchase Price
for the Assets shall be payable as follows:



(a)               
Two Hundred Fifty Thousand Dollars ($250,000) in cash to Seller at
Closing, subject to the Purchase Price Adjustment as set forth in Section
2.3.


(b)              
Four Hundred Thousand Dollars ($400,000) in cash to Seller, payable in
annual installments of $100,000 on each of the first through fourth anniversary
of the Closing Date (the "Installment Payments").  If Purchaser fails to
timely make any Installment Payment, then the unpaid sum of such Installment
Payment shall accrue interest, commencing on the first day after the
Installment Payment was due, at a rate of five percent (5%) per annum. 
Notwithstanding the foregoing, no interest shall accrue on any non-payment or
late payment resulting from Purchaser's exercise of its offset rights pursuant
to Section 7.4.


(c)               
Purchaser shall assume the Assumed Liabilities at Closing.


(d)              
Purchaser shall cause Seller to be released from any further obligation
under Seller's secured commercial bank credit facility with Equity Bank (the "Credit
Facility") as of Closing.  Purchaser shall have the option, in its sole
discretion, to assume Seller's obligation under the Credit Facility, payoff the
Credit Facility, or a combination of partial payoff and assumption of the
remaining obligation under the Credit Facility.


(e)               
Purchaser shall enter into the Termination and Release Agreement in the
form attached as Exhibit F.



2.3             
Purchase Price Adjustment.  The Purchase Price shall be adjusted as follows: In the
event, as of Closing, any amounts are owed by Seller to Purchaser pursuant to
the Amendment to Supply Agreement and/or pursuant to the Amendment No. 2 to
Supply Agreement, including, without limitation, any amounts uncollectible by
Purchaser as a result of prior credits to Seller's customers, then the $250,000
otherwise due to Seller at Closing will be reduced by such total amount due to
Purchaser pursuant to the Amendment to Supply Agreement and/or Amendment No. 2
to Supply Agreement (the "Purchase Price Adjustment").



2.4             
Purchase Price Allocation; Taxes. 
The parties agree to allocate the Purchase Price among the Assets for all
purposes (including financial accounting and tax purposes) in accordance with
the allocation schedule attached to this Agreement as Attachment 2.4. 
Any transfer, documentary, sales, use or other taxes assessed upon or with
respect to the transfer of the Assets to Purchaser, and any recording or filing
fees with respect thereto, shall be the responsibility of Seller.

 

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ARTICLE
III


CLOSING



3.1             
Closing Date.  The Closing shall
occur at a time convenient to the parties; provided that all conditions to
Closing herein set forth will have been satisfied; and further provided that
Closing will occur not later than October 31, 2005, (the "Closing Date"),
unless the parties agree in writing to an extension of the Closing Date.



3.2             
Place of Closing.  Closing will
take place at the offices of Rutan & Tucker, LLP at 611 Anton Boulevard,
Fourteenth Floor, Costa Mesa, California 92626 or at such other place as the
parties may agree in writing.



3.3              
Performance by Seller at Closing. 
At Closing, Seller will deliver to Purchaser the following:


(a)               Within ten (10) calendar days of the Closing Date, Seller shall, at
Purchaser's expense, cause those Assets which are
tangible personal property to be delivered to Purchaser's warehouse located at 151
East Columbine Avenue, Santa Ana, California 92707. 
Seller shall bear all risk of loss or damage with respect to all such Assets
until delivery is accepted by Purchaser at Purchaser's warehouse;


(b)              The Assignment Agreements, in the form attached as Exhibit B,
duly executed by Seller;


(c)               The Bill of Sale, in the form attached as Exhibit C, duly
executed by Seller;


(d)              
The License Agreement, in the form attached as Exhibit D, duly
executed by Seller;


(e)               The Royalty Agreement, in the form attached as Exhibit E, duly
executed by Seller;


(f)                The Termination and Release Agreement, in the form attached hereto as Exhibit
F, duly executed by Seller;


(g)               [reserved];


(h)               The UCC Termination Statements, in the form attached hereto as Exhibit H,
duly executed by Dale E. Kleber and William Harris Investors Ventures
Fund 1, LLC, respectively (which execution shall evidence the
authorization of Purchaser to file such UCC Termination Statements with the
Delaware Secretary of State, and such other agencies and in such other
jurisdictions as Purchaser deems necessary or appropriate to terminate the
security interests covered thereby);


(i)                 Copies of resolutions of both the Board of Directors and the
shareholders of Seller authorizing and approving this Agreement and all other
transactions and agreements contemplated hereby, certified by the Secretary of
Seller;

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(j)                
A certificate of the Delaware Secretary of State verifying the good
standing of Seller on a date within twenty (20) days prior to the Closing Date;


(k)               
[reserved];


(l)                 Evidence of all third party notices and/or consents (including, without
limitation, all notices and/or consents set forth on Schedule 4.3) which
may be necessary or desirable, in the reasonable opinion of Purchaser and its
counsel, for the sale, transfer and conveyance of the Assets to Purchaser; and


(m)               All other instruments and documents which are necessary, in the
reasonable opinion of Purchaser and its counsel, to fulfill the obligations of
Seller under this Agreement which are required to be fulfilled on or prior to
the Closing Date.



3.4             
Performance by Purchaser at Closing. 
At Closing, Purchaser will deliver to Seller the following:


(a)               
The cash portion of the Purchase Price by cashier's check or wire
transfer, payable to Seller as provided in Section 2.2(a);


(b)                The Assignment Agreements, in the form attached as Exhibit B,
duly executed by Purchaser;


(c)               
The License Agreement, in the form attached as Exhibit D, duly
executed by Purchaser;


(d)               
The Royalty Agreement, in the form attached as Exhibit E, duly
executed by Purchaser;


(e)               
The Termination and Release Agreement, in the form attached hereto as Exhibit
F, duly executed by Purchaser;


(f)                
A letter from Equity Bank, attesting to its release of Seller from any
further obligation under the Credit Facility pursuant to Section 2.2(d);


(g)               
A certificate of the Colorado Secretary of State verifying the good
standing of Purchaser on a date within twenty (20) days prior to the Closing
Date;


(h)               Copies of resolutions of the Board of Directors of Purchaser authorizing
and approving this Agreement and all other transactions and agreements
contemplated hereby, certified by the Secretary of Purchaser; and


(i)                 All other instruments and documents which are necessary, in the
reasonable opinion of Seller and its counsel, to fulfill the obligations of
Purchaser under this Agreement which are required to be fulfilled on or prior
to the Closing Date.

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3.5             
Approval of Documents.  Unless
otherwise provided herein, all instruments and documents to be delivered will
be dated as of the Closing Date and will be reasonably satisfactory to the
parties and their respective counsel, as to form and content.


ARTICLE
IV


REPRESENTATIONS AND WARRANTIES BY SELLER


Seller represents and warrants to Purchaser that the following
statements are true and correct on the date hereof, except as set forth in the
disclosure schedule delivered by Seller to Purchaser on the date hereof and
attached hereto as Exhibit A (the "Disclosure Schedule"):



4.1             
Corporate Status.  Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has all requisite corporate power and
authority and all licenses, permits and authorizations necessary to own the
Assets and carry on its business as it is now being conducted.



4.2             
Corporate Documents.  Seller has
provided Purchaser true, correct and complete copies of Certificate of
Incorporation and Bylaws, including all amendments thereto, and true, correct
and complete copies of the minutes of all directors' and shareholders' meetings
of Seller.



4.3             Authority to Perform Agreement. 
Seller has the power to enter into this Agreement and to carry out its
obligations hereunder, and the execution, delivery and performance of this
Agreement by Seller has been duly authorized by all necessary corporate action
on the part of the shareholders and board of directors of Seller.  The
execution and performance of this Agreement does not violate, or result in a
beach of, or constitute a default under, any judgment, order or decree to which
Seller or any of the Assets may be subject.  Such execution or performance does
not constitute a violation of or conflict with any duty to which Seller is
subject or any provision of the Certificate of Incorporation or Bylaws of
Seller.  Neither the exercise and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, nor compliance with the
terms and provisions hereof, will result in the creation or imposition of any
lien, charge or encumbrance upon any of the property of Seller pursuant to the
terms of, or conflict in any way with the provisions of, or constitute a
default under, or require the consent of any other party to, any indenture, mortgage,
deed of trust, agreement, lease, or other instrument to which Seller is a party
or by which it may be bound or to which it, the Business or any of the Assets
may be subject, except for the consents or approvals of those Persons
identified on Schedule 4.3, which consents or approvals have been
obtained or will be obtained prior to Closing.  Except as set forth on Schedule
4.3, neither the execution of this Agreement nor consummation of the sale
of the Assets hereunder requires notice to or the approval or consent of any
Governmental Authority having jurisdiction over the Business or of any party to
any agreement with Seller, as a condition to the continuance of Seller's
conduct of its business or the continuance by Purchaser of the Business or of such
agreements after the sale, transfer and conveyance of the Assets in accordance
with this Agreement.

 

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4.4             
Litigation.  Except as set forth on
Schedule 4.4, there are no actions, suits, claims, proceedings or
investigations pending or, to Seller's Knowledge, threatened against or
affecting the Business or the Assets at law or in equity or before or by any
federal, state, municipal or other governmental court, department, commission,
board, bureau, agency or instrumentality, domestic or foreign.  Except as set forth
on Schedule 4.4, Seller is not subject to or in default with respect to
any order, writ, injunction or decree of any court or federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality with respect to the Business or the Assets.  Seller has
complied in all material respects with all laws, regulations and orders
applicable to the Business and the Assets.  None of the actions, suits, claims,
proceedings and investigations disclosed on Schedule 4.4 could result in
any adverse change in the business, financial condition, operations, results of
operations or future prospects of the Business, or materially impair the value
of the Assets.



4.5              
Stockholder, Officer and Employee Claims.  No stockholder, officer or employee of Seller has any claim
or claims against the Business or the Assets.



4.6              Title to Assets.  Except as
disclosed on Schedule 4.6, Seller has good and marketable title to all
of the Assets, free and clear of any and all mortgages, liens, pledges, privileges,
charges or encumbrances of every kind, nature and description; all tangible
properties which comprise the Assets are in Seller's possession or custody or
under its control.



4.7             
Intellectual Properties.  Subject
to the terms of the Royalty Agreement between Purchaser and Seller of even date
herewith, (i) Seller owns or has the right to use pursuant to license,
sublicense, agreement or permission all patents, patent applications, patent
rights, licenses, trademarks, trademark applications, trademark rights, trade
names, trade name rights, service marks, service mark rights, copyrights,
copyright applications and similar rights necessary or desirable for the
operation of its Business as currently conducted (the "Purchased
Intellectual Property"),and  (ii) each item of Purchased Intellectual
Property owned or used by Seller immediately prior to the Closing will be owned
or available for use by Purchaser on identical terms and conditions immediately
following the Closing.  Seller has taken all necessary action to maintain and
protect each item of Purchased Intellectual Property.  Schedule 4.7
identifies all patents, patent applications, patent rights, licenses,
trademarks, trademark applications, trademark rights, trade names, trade name
rights, service marks, service mark rights, copyrights, copyright applications
and similar rights constituting the Purchased Intellectual Property.  Seller
has delivered to Purchaser true, correct and complete copies of all
registrations, applications, licenses, agreements and permission for the
Purchased Intellectual Property.  Seller is not infringing or otherwise acting
adversely to the right of any other person under or in respect to, any patent,
license, trademark, trade name service mark, copyright or similar intangible
right.



4.8              
Insurance.   Schedule 4.8 sets forth the following information with
respect to each insurance policy to which Seller has been a party, a named
insured, or otherwise the beneficiary of coverage at any time within the past
three (3) years:


(a)               the name, address, and telephone number of the agent;


(b)              
the name of the insurer, the name of the policyholder, and the name of
each covered insured;


(c)               
the policy number and the period of coverage;

 

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(d)              
the scope (including an indication of whether the coverage was on a
claim made, occurrence, or other basis) and amount (including a description of
how deductibles and ceilings are calculated and operate) of coverage; and


(e)               
a description of any retroactive premium adjustments or other
loss-sharing arrangements.


For the four year period prior to and
including June 23, 2005, Seller was covered by insurance (on an occurrence
basis) in scope and amount customary and reasonable for the business in which
it has engaged during the aforementioned period.  Schedule
4.8 describes any self-insurance arrangements affecting Seller.



4.9             Financial Statements.  Seller has
provided Purchaser with a balance sheet of Seller as of September 30, 2005, and
the related statements of income, retained earnings and cash flow for the
period then ended, a copy of which is attached hereto as Schedule 4.9
(the "Financial Statements"), and such other financial information,
corporate records and documents material to the operation of Seller's business
as Purchaser has reasonably requested.  The Financial Statements are true and
correct in all material respects and present fairly the financial condition and
results of operations of Seller for the period specified. The books of account
from which the Financial Statements were prepared accurately reflect all of the
items of income and expense, all assets and liabilities, and all accruals. 
Seller has no undisclosed depreciable assets, and all depreciation and
investment credit taken for tax purposes is disclosed on the Financial
Statements.



4.10         
Conduct of Business, Licenses, Etc. 
Except as disclosed in Schedule 4.10, the conduct of the Business is not
dependent on any governmental or private license, permit or other
authorization, and the consummation of the transactions contemplated by this
Agreement will not terminate or adversely affect any such license, permit or
authorization.



4.11         
 Disclosure.  Neither this Agreement
nor any of the Attachments, Schedules or Exhibits attached to this Agreement
contains any untrue statement of any material fact or omits to state any
material fact required to be stated herein or therein, or necessary in order to
make the statements contained herein or therein not misleading.  To Seller's
Knowledge, there is no fact which materially adversely affects, or in the
future may (so far as Seller can now reasonably foresee) materially adversely
affect the Assets or the prospects or condition (financial or otherwise) of the
Business, which fact has not been disclosed in writing to Purchaser prior to
the date hereof or set forth herein or in the Schedules attached to this
Agreement.



4.12         
 Condition of Tangible Assets.  All of those Assets which are tangible personal property
are in good condition and repair and are in conformity with all applicable
rules, regulations and laws.



4.13         
 Tax Returns.  All federal, state,
local, county, franchise, sales, use, excise, property and other taxes which
are due and payable have been duly paid.  Seller has withheld and paid all
taxes required to have been withheld and paid in connection with amounts paid
or owing to any employee, independent contractor, creditor, stockholder or
other third party.

 

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ARTICLE
V


REPRESENTATIONS AND WARRANTIES BY PURCHASER


Purchaser represents and warrants to Seller that the following
statements are true and correct on the date hereof:



5.1             
Organization in Good Standing. 
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado.



5.2             
Authority to Perform Agreement. 
Purchaser has the corporate power to enter into this Agreement and to carry out
its obligations hereunder.  The execution and delivery of this Agreement, the
payments provided for herein, and the consummation of transactions contemplated
hereby, have been duly authorized by Purchaser's board of directors, and no
other corporate proceeding on the part of Purchaser is necessary to authorize
Purchaser's officers to perform this Agreement and the transactions
contemplated herein.


ARTICLE
VI


COVENANTS



6.1             
Reimbursement for Uncollectible Accounts.  Seller will indemnify and hold Purchaser harmless from any
accounts receivable included in the Assets which become more than ninety (90)
days past due (in addition to any obligation to indemnify created under Article VII
below).  Purchaser may, at its option, offset against the payment of (i) any
Installment Payments and/or (ii) any royalty payment under the Royalty
Agreement, any and all amounts to which Purchaser is entitled pursuant to this Section
6.1 in accordance with Section 7.4.



6.2             
Further Action.  If at any time
after Closing any further action is necessary or desirable to carry out the
purposes of this Agreement, Purchaser and Seller will take such further action
(including the execution and delivery of such further instruments and
documents) as the other party to this Agreement reasonably may request, all at
the sole cost and expense of the requesting party unless the requesting party
is entitled to indemnification thereof under Article VII below. 
Seller acknowledges and agrees that from and after the Closing, Purchaser will
be entitled to possession of all documents, books, records, tax records,
agreements and financial data of any sort relating to the Assets.  To the extent that Purchaser fails to make required
administrative/governmental payments to maintain in force and effect the
Purchased Intellectual Property, then Seller shall have the right to make such
payments provided, however, that Seller's election to make such payments shall
have no effect on Purchaser's title, right and ownership of the Purchased
Intellectual Property which shall remain wholly in Purchaser's possession.
 

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6.3             
Litigation Support.  If and for so
long as any party actively is contesting or defending against any action, suit,
proceeding, hearing, investigation, charge, complaint, claim or demand in
connection with (i) any transaction contemplated under this Agreement or (ii)
any fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Business or the Assets, the other party will
cooperate with it and its counsel in the contest or defense, make available its
personnel, and provide such testimony and access to its books and records as
may be necessary or desirable in connection with the contest or defense, all at
the sole cost and expense of the contesting or defending party, unless the
contesting or defending party is entitled to indemnification therefor under Article
VII below.



6.4             
Transition.  Seller will not take
any action that is designed or intended to have the effect of discouraging any
lessor, licensor, customer, supplier, or other business associate of Seller
from maintaining the same business relationships with Purchaser after the
Closing as such party maintained with Seller prior to the Closing.  Seller will
refer all customer inquiries relating to the Business to Purchaser from and
after Closing.



6.5             
Employees.  Purchaser
may need to contract with various key personnel of Seller as of or after the
Closing.  Seller shall take all actions reasonably required by Purchaser to
assist in this process including, without limitation, providing Purchaser
access to all Seller's organizational charts, personnel records and payroll
records and by allowing and encouraging Seller's employees to meet with
Purchaser's representatives.  Notwithstanding anything to the contrary in this
Agreement, Purchaser shall have no obligation of any kind with respect to any
of Seller's employees. Seller shall be solely responsible for the termination
and any related costs of all Seller's employees who are terminated or whose
employment is otherwise adversely affected by Seller's execution and
performance of this Agreement.



6.6             
 Non-Competition.   



(a)               
As further consideration for the purchase and sale of the Assets and the
other agreements and transactions contemplated by this Agreement, during the
period commencing on the Closing Date, and ending on the date which is five (5)
years thereafter (the "Restricted Period"), Seller shall not, in any
Restricted Territory, directly or indirectly:


(i)                engage in any business, activity, or enterprise competitive with or
substantially similar to the Business, including, without limitation, in the
manufacture, production, design, engineering, importation, purchase, marketing,
sale, distribution, research or development of any dental products, or engage
or invest in, own, manage, operate, finance, control, solicit business related
to, or participate in the ownership, management, operation, financing, or
control of, be employed by, lend its name or any similar name, or lend its
credit to, or render services or advice to, any Person engaged in any business,
activity or enterprise competitive with the Business including, without
limitation, in the manufacture, production, design, engineering, importation,
purchase, marketing, sale, distribution, research or development of any dental
products;


(ii)               
on behalf of itself or any other Person, recruit or solicit  any person
who has been an employee, representative, consultant or agent of Purchaser or
former employee of Seller hired by Purchaser, to terminate his or her
employment with Purchaser;

 

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(iii)              
solicit, call upon, or attempt to communicate with any customer, former
customer, or prospective customer of Purchaser or Seller for the purposes of
manufacture, production, design, engineering, importation, purchase, marketing,
sale, distribution, research or development of any dental products; provided,
however, that Seller may solicit, call upon, or attempt to communicate with any
customer, former customer, or prospective customer of Purchaser or Seller
pursuant to specific written instructions from Purchaser.  For purposes of this
paragraph, "contact" means interaction between Seller or any of its officers,
directors, employees or agents directly or indirectly, and the customer, former
customer or prospective customer which takes place to further the business
relationship, or performing of services, on behalf of Seller.


(b)              
Seller shall be deemed to be competing with Purchaser in violation of Section
6.6(a) if Seller, or any Affiliate of Seller (except the directors of
Seller currently members of William Harris), is engaged or participates in any
activity or activities described in Section 6.6(a), directly or
indirectly, whether for its own account or for that of any other Person, and
whether as a shareholder, partner or investor controlling any such entity or as
principal, agent, representative, proprietor or partner, or in any other
capacity; provided, however, that nothing herein shall prohibit
purely passive investments in any business so long as the aggregate interest
represented by such investments does not exceed one percent (1%) of any class
of the outstanding debt or equity securities of said business.


(c)               
Because a breach, or failure to comply with, this Section 6.6
will cause irreparable injury to Purchaser for which there is no adequate
remedy at law and the exact amount of which will be difficult to ascertain, if
Seller or any Affiliate of Seller, should in any way breach, or fail to comply
with, the terms of this Section 6.6, Purchaser shall be entitled to seek
and obtain an injunction restraining such Seller and/or it Affiliate(s), as
applicable, from any such breach or failure without having to prove monetary
damages.  All remedies expressly provided for herein are cumulative of any and
all other remedies now existing at law or in equity, to the extent permitted
under applicable law.  Purchaser shall, in addition to the remedies herein
provided, be entitled to avail itself of all such other remedies as may now or
hereafter exist at law or in equity for compensation, and for the specific
enforcement of the covenants contained herein without the necessity of proving
actual damages.  Resort to any remedy provided for hereunder or provided for by
law shall not preclude or bar the concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the recovery by Purchaser of
monetary damages and compensation, including, without limitation, its right to
indemnification pursuant to Article VII.

 

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(d)              
If any provision of this Section 6.6 shall finally be
judicially determined to be invalid, ineffective or unenforceable, such
determination shall apply only in the jurisdiction in which such adjudication
is made and every other provision of this Section 6.6 shall remain
in full force and effect.  The invalid, ineffective or unenforceable provision
shall, without further action by the parties, be automatically amended, to the
extent permitted under applicable law, to effect the original purpose and
intent of the invalid, ineffective or unenforceable provision (and if such
provision governs the duration of the Restricted Period or geographic scope of
the Restricted Territory, such provision shall be amended to reduce such
duration or scope, as applicable, as minimally as possible so that such
provision is valid, effective and enforceable for the longest period of time
and fullest geographic area as is adjudged permissible for such provision to be
valid, effective and enforceable); provided, however, that such
amendment shall apply only with respect to the operation of such provision in
the particular jurisdiction in which such adjudication is made.


(e)               
Seller acknowledges that the duration of the Restricted Period, the
geographic scope of the Restricted Territory, and the scope of restricted
activities described in Section 6.6(a) are reasonable and necessary
to protect the legitimate business interests of Purchaser in view of the nature
of the Business, the nature of the business in which Purchaser is engaged, and
the nature of the transactions contemplated by this Agreement.  Seller
understands that the foregoing restrictions will significantly limit or bar its
ability to engage in business related to the Business, but nevertheless
believes that it has received and will receive, directly or indirectly,
sufficient consideration and other benefits pursuant to this Agreement and the
other agreements relating to this Agreement to clearly justify such
restrictions.


(f)                
Seller shall cooperate with Purchaser in Purchaser's communication and
negotiation with certain key equity-owning personnel of Seller with whom
Purchaser desires to enter into non-compete agreements on similar terms as set
forth in Sections 6.6(a)-(e) above.


6.7             
FDA Regulatory Matters.   


(a)               
To the fullest extent permitted by applicable laws and regulations,
Seller agrees to permit Purchaser, without further compensation or obligation
to Seller, to sell products under Seller's United States Food and Drug
Administration ("FDA") 510(k) certification relating to anesthesia
delivery products.   


(b)               
Seller agrees to take such action (including the execution and delivery
of such further instruments and documents) as Purchaser may reasonably request
to assist Purchaser in securing its own FDA 510(k) certification regarding
products related to the Business.


(c)               
Promptly upon the written request of Purchaser, Seller agrees to take
such action (including the execution and delivery of such further instruments
and documents) as Purchaser deems necessary or appropriate to terminate
Seller's 510(k) certification.  Seller shall not take any action to terminate
Seller's 510(k) certification until requested in writing by Purchaser pursuant
to this Section 6.7(c).

 

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(d)              
Seller shall promptly forward to Purchaser any communications or
inquiries received by Seller from or regarding (i) the United States Food and
Drug Administration, (ii) comparable state or foreign agencies, or (iii)
similar regulatory matters, which relate to or are connected with the
Business.  In the event such communications or inquiries are received verbally,
Seller shall promptly provide Purchaser an accurate description of such
communications or inquiries, along with contact information for the source of
such communications or inquiries.


ARTICLE
VII


INDEMNIFICATION OF PURCHASER



7.1             
Survival of Representations, Warranties and Covenants.  The representations, warranties and covenants contained in
this Agreement shall survive the Closing.



7.2             
Indemnity for the Benefit of Purchaser.  Seller agrees to and shall indemnify Purchaser and hold
Purchaser harmless from and against the following:


(a)               
For a period of two (2) years from the Closing
Date:


(i)                any and all Losses or Liabilities resulting from
any misrepresentation made, or breach of warranty given or covenant made by
Seller in this Agreement, except those set forth in Sections 4.6 or 4.7;
and


(ii)               
any and all Losses or Liabilities incurred by,
arising out of, or relating in any way to matters pertaining to the conduct of
the Business which have arisen or may arise because or as a result of any fact,
event or transaction existing or occurring on or before the Closing Date,
regardless of when the cause of action thereof shall be deemed to arise.


(b)              
For an indefinite period:


(i)                 
any and all Losses or Liabilities resulting from any misrepresentation
made, or breach of warranty given or covenant made in Sections 4.6 or 4.7;
and


(ii)                 
failure to comply with the provisions of any bulk sale laws pursuant to Section
7.9.



7.3             
Indemnity for the Benefit of Seller. 
For a period of two (2) years from the Closing Date, Purchaser agrees to and
shall indemnify Seller and hold Seller harmless from and against the following:


(a)               Any and all Losses and Liabilities resulting from any misrepresentation
made or breach of warranty given or covenant made by Purchaser in this
Agreement; and  


(b)              
Any and all Losses and Liabilities incurred by, arising out of, or
relating in any way to matters pertaining to the conduct of the business of
Purchaser which may arise because or as a result of any fact, event or
transaction occurring after the Closing Date, except for claims which are
subject to Seller's indemnification obligations under Section 7.2.  

 

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7.4             
Right of Offset.  In addition to
any other remedies which Purchaser may have against Seller at law, in equity or
pursuant to this Agreement, Purchaser may, at its option, offset against the
payment of (i) any Installment Payments and/or (ii) any royalty payment under
the Royalty Agreement, any and all amounts with respect to which Purchaser is
entitled to indemnification pursuant to Sections 6.1, 7.2 or 7.6,
regardless of when the claim for indemnification shall be deemed to arise. 
Purchaser shall exercise its right of offset by notifying Seller that Purchaser
is reducing an Installment Payment or royalty payment anytime prior to the due
date for such Installment Payment or royalty payment.



7.5             
Notice.  If a party shall claim any
right of indemnity under Sections 7.2 or 7.3, the party shall give the
other party a written notice of such claim, setting forth in reasonable detail
the facts giving rise to the claim and the amount of liability asserted by
reason thereof.



7.6             
 Matters Involving Third Parties.


(a)               
If any third party shall notify either party to this Agreement (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may
give rise to a claim for indemnification against any other party to this
Agreement (the "Indemnifying Party") under this Article VII, then
the Indemnified Party shall promptly notify the Indemnifying Party thereof in
writing; provided, however, that no delay on the part of the Indemnified Party
in notifying the Indemnifying Party shall relieve the Indemnifying Party from
any obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.


(b)              
The Indemnifying Party will have the right to defend the Indemnified
Party against the Third Party Claim with counsel of its choice reasonably
satisfactory to the Indemnified Party so long as (i) the Indemnifying Party
notifies the Indemnified Party that the Indemnifying Party will indemnify the
Indemnified Party from the Third Party Claim, (ii) the Indemnifying Party
provides the Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the financial resources
to defend against the Third Party Claim and fulfill its indemnification
obligations hereunder, (iii) the Third Party Claim involves only money damages
and does not seek an injunction or other equitable relief, (iv) settlement of,
or an adverse judgment with respect to, the Third Party Claim is not, in the
good faith judgment of the Indemnified Party, likely to establish a precedential
custom or practice materially adverse to the continuing business interests of
the Indemnified Party, and (v) the Indemnifying Party conducts the defense of
the Third Party Claim actively and diligently.


(c)               
So long as the Indemnifying Party is conducting the defense of the Third
Party Claim in accordance with Section 7.6(b) above, (i) the Indemnified
Party may retain separate co-counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, (ii) the Indemnified Party
will not consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of the
Indemnifying Party, which shall not be unreasonably withheld, and (iii) the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party, which shall not be withheld unreasonably.

 

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(d)              
If any of the conditions in Section 7.6(b) above is or becomes
unsatisfied, however, (i) the Indemnified Party may defend against, and consent
to the entry of any judgment or enter into any settlement with respect to, the
Third Party Claim in any manner it reasonably may deem appropriate (and the
Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), (ii) the Indemnifying Party will
reimburse the Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including reasonable attorneys' fees
and expenses), and (iii) the Indemnifying Party will remain responsible for any
Losses and Liabilities the Indemnified Party may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the Third Party Claim to
the fullest extent provided in this Article VII.



7.7             
Amount of Damages.  Each party
agrees that the amount of any Liabilities or Losses claimed by it under the
indemnity provided in this Article VII shall be a net amount
after adjustment for any benefit to such party from insurance receipts from
third parties or offsetting tax advantages.



7.8             
Resolution of Disputes.  Any
dispute arising under or related to this Agreement shall be resolved by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, in Orange County, California.  The arbitration hearing
shall be conducted by a single neutral arbitrator, who shall be an active
California State Bar member in good standing.  In addition to all other powers,
the arbitrator shall have the right to determine all issues of arbitrability
and shall have the authority to issue subpoenas.  The parties shall be entitled
to conduct discovery in connection with any claims that are arbitrated under
this Section.  All discovery shall be completed within ninety (90) calendar
days after the request for arbitration is filed with the appropriate
authorities and the first hearing date shall be set for no later than thirty
(30) calendar days after the completion of discovery.  The arbitrator may
extend such period for any reason, including without limitation, legal
objections raised to such discovery or unavailability of a witness due to
absence or illness.  Depositions may be taken by either party upon seven
calendar days written notice, and requests for production or inspection of
documents shall be responded to within 10 calendar days after service.  All
disputes relating to discovery that cannot be resolved by the parties shall be
submitted to the arbitrator, whose decision shall be final and binding upon the
parties.  The prevailing party in any such arbitration shall be entitled to any
award of its reasonable attorneys' fees and expenses.  Any party shall be
entitled to file an action in Orange County Superior Court, which shall have
jurisdiction over the parties of this Agreement, to compel or aid in the
arbitration, or for injunctive relief.  Judgment on any arbitration award may
be entered in any court of appropriate jurisdiction.



7.9             
Waiver of Bulk Sales Law Compliance.  Purchaser acknowledges that Seller will not comply with the
provisions of any bulk sales laws of any jurisdiction in connection with the
transactions contemplated by this Agreement.  Seller hereby covenants and
agrees to indemnify and hold Purchaser harmless, in accordance with this Article
VII, from and against any and all Liabilities or Losses which Purchaser may
incur as a result of any failure to comply with any applicable bulk sales laws
in connection with this Agreement.

 

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7.10         
  Indemnification Cap. 
Notwithstanding any provision herein to the contrary, the total liability of
Seller to indemnify and hold Purchaser harmless pursuant to this Article VII
shall be limited to $650,000 in the aggregate.


ARTICLE
VIII


MISCELLANEOUS



8.1             
Notices.  All notices, requests,
demands, and other communications called for by this Agreement shall be in
writing and shall be deemed to have been given if delivered or mailed first
class, postage prepaid:


If to
Seller, to:

IntraVantage, Inc.

2950 Xenium Lane North, Suite 148

Plymouth, Minnesota 55441-2623

Attn:                                                                     
 





If to Purchaser, to:

Pro-Dex, Inc.

151 East Columbine Avenue

Santa Ana, California 92707

Attn: Patrick Johnson


With
copy to:

Rutan & Tucker, LLP

611 Anton Blvd., 14th Floor

Costa Mesa, California 92626-1931

Attn: Thomas J. Crane


In the
event any party shall change its address contained in this Section 8.1
such party shall provide the other party to this Agreement notification of such
change in accordance with this Section 8.1.



8.2             Counterparts.  For the convenience
of the parties hereto, this Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.



8.3             Headings.  The headings of the
several articles and sections herein are inserted for convenience of reference
only and are not intended to be a part of, or affect the meaning of
interpretation of, this Agreement.



8.4             
Parties in Interest.  This
Agreement shall benefit and bind the parties and their respective successors
and assigns.



8.5             Governing Law.  This Agreement
shall be construed and enforced in accordance with the laws of the State of
California, without reference to the choice of law principles thereof.

 

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8.6             Amendment.  This Agreement may be
amended by written instrument executed by both Seller and Purchaser.



8.7             Entire Agreement.  This Agreement,
including the agreements referenced herein, contain the entire understanding of
the parties relating to the subject matter hereof and supersede any prior
agreements, written or oral, with respect to the same subject matter.  The
Attachments, Exhibits and Schedules identified in this Agreement are
incorporated in and made a part of this Agreement by reference.



8.8             Expenses.  Each party shall
separately bear the expenses incurred by it in connection with this Agreement;
provided, however, that if either party shall commence legal action to
specifically enforce or otherwise seek redress under or for breach of this
Agreement, the prevailing party in such action shall be entitled to recover its
costs and reasonable attorneys' fees therein, including costs and fees incurred
in any appellate proceeding.  Seller shall be
entitled to recover from Purchaser all expenses (including reasonable
attorneys' fees and costs) incurred in conjunction with the collection of any
Installment Payments due pursuant to Section 2.2(b), except where
Purchaser's failure to pay any such Installment Payments is a result of
Purchaser's exercise of its offset rights pursuant to Section 7.4.



8.9             Waiver.  Any of the terms or
conditions of this Agreement may be waived at any time by the party which is
entitled to the benefit thereof.  All such waivers shall be in writing and no
waiver by any party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.



8.10          
Construction.  The
parties have participated jointly in the negotiation and drafting of this
Agreement.  In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
an no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of the Agreement. 
Any reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise.  The parties intend that each
representation, warranty and covenant contained in this Agreement shall have
independent significance.  If any party has breached any representation,
warranty or covenant contained herein in any respect, the fact that there
exists another representation, warranty or covenant relating to the same
subject matter (regardless of their relative levels of specificity) which the
parties have not breached shall not detract from or mitigate the fact that the
parties in breach of the first representation, warranty or covenant.




[SIGNATURE PAGE FOLLOWS]

 

 

 

 

 

 

 

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IN WITNESS WHEREOF, Purchaser and Seller have executed this Asset
Purchase Agreement as of the date and year first above written.



PURCHASER:                                                 Pro-Dex,
Inc., a Colorado corporation





By:       /s/ Patrick Johnson                                            



      Its:    President and C.E.O.                                     
 





SELLER:                                                          IntraVantage,
Inc., a Delaware corporation





By:       /s/ Daniel W. Larkin                                          



      Its:    President and C.O.O.                                    
 

 

 

 

 

 

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