exv10w20



 







EXHIBIT 10.20




NOTARIAL DEED




PURCHASE AGREEMENT FOR A PARTIAL ENTERPRISE




between




FormMed Biomedicals AG




and




ARTES Medical USA, Inc.





 









 







Before me, the undersigned Notary public (Urkundsperson) of the Canton of Zug, Helga Schlumpf, with
offices at Gubelstrasse 11, CH-6300 Zug, appeared today, July 22, 2004:





	1.	 	Mr. Ulrich Naumann, date of birth March 10, 1956, resident for business purposes at
Seestrasse 8, 6314 Unterägeri, Switzerland
	 
	 	 	acting not on his own behalf but as person with power to sign (Zeichnungsberechtigter) with
sole signature of FormMed Biomedicals AG, Seestrasse 8, 6314 Unterägeri, Switzerland,
entered on the Commercial Register of the Canton of Zug (Main Register) under number
CH-170.3.021.971-3, according to the confirmation from the Register of Commerce, dated July
21, 2004 and the Protocol of FormMed Biomedicals AG’s extraordinary shareholders meeting
dated July 2, 2004





– hereinafter: the Seller –





	2.	 	Dr. Stefan M. Lemperle, date of birth May 7, 1965, resident for business purposes at La Jolla
Center I, 4660 La Jolla Village Drive, Suite 825, San Diego, CA 92122, USA,
	 
	 	 	acting not on his own behalf, but as authorised Chief Executive Officer of ARTES Medical
USA, Inc., La Jolla Center I, 4660 La Jolla Village Drive, Suite 825, San Diego, CA 92122,
USA, according to the Secretary’s Certificate dated July 15, 2004, with apostille, and the
minutes of a special meeting of the board of directors of ARTES of July 15, 2004





– hereinafter: the Buyer –



The persons appearing identified themselves to the satisfaction of the notary.



The notary asked whether he or any one of his business associates or any person with whom the
notary shares business premises had already acted or was currently acting for the persons appearing
or their representatives in an unofficial capacity in the same matter.



The parties denied any prior involvement within the meaning of § 3 Para. 1 No. 7
Beurkundungsgesetz.1



The undersigned Notary Public issues this notarial deed on the following record on an agreement
upon request of the parties:




PURCHASE AGREEMENT FOR A PARTIAL ENTERPRISE




Preamble:



The Seller is an enterprise involved in the development, manufacture and distribution of components
for the use to manufacture medical devices, in particular biomaterial for plastic






 




			
	1	 	Beurkundungsgesetz: German Notarization Act




1









 









surgery and implantology. Part of the business activities of the Seller is the development,
manufacture and distribution under license of polymethylmethacrylate (“PMMA”) microspheres for
polymer and alloplastic implants (“PMMA Materials”). In addition to holding a license for the
manufacture of PMMA Materials, Seller also possesses the know-how for the manufacture of PMMA
Materials and the associated production equipment and certain trademarks for PMMA Materials. The
manufacturing know-how, all development activities and the production equipment are essentially
held by Mediplant GmbH Biomaterials & Medical Devices, registered at the Commercial Register of
Frankfurt am Main Local Court under HRB 53763 (hereinafter: Mediplant), a wholly owned subsidiary
of the Seller.



The Buyer, who already possesses in particular the US rights for the manufacture of PMMA Material,
wishes to acquire from the Seller, and the Seller wishes to sell and transfer to the Buyer, on the
terms and conditions set out in this Agreement, the whole of the Seller’s existing PMMA business
and all related assets, know-how, associated production processes and techniques, certain
trademarks owned by Seller, and all shares in Mediplant. The PMMA business and related assets,
rights, interests and properties being sold and transferred by Seller to Buyer pursuant to this
Agreement as set forth in Article B. Section 3 are referred to collectively as the “PMMA Business
and Assets.”



The parties are therefore entering into this Agreement.




Article A.

Purchase Price





	(1)	 	The purchase price for the PMMA Business and Assets is US $3,750,000.00 payable in
installments as set out below. All installments will be paid by wire transfer to the account
of Seller at      ***      . All due dates for the payment of the purchase price under this
Agreement are understood to be the dates when the money is credited to the Seller’s account.
The parties acknowledge and agree that Buyer made an advance payment of the purchase price to
Seller in the amount of US$ 160,437.50 on February 12, 2004, that this advance payment will be
credited against the first installment of the purchase price, and that the outstanding balance
remaining to be paid on the first installment is US$ 339,562.50.






	 	(a)	 	The outstanding balance payable on the first installment of the purchase price,
amounting to US $339,562.50 shall be due on the date of signature of this Agreement.
	 
	 	(b)	 	The second installment of the purchase price, amounting to US$ 500,000.00 shall
be due on July 31, 2004.
	 
	 	(c)	 	The third installment of the purchase price, amounting to US $500,000.00 shall
be due on September 30, 2004.
	 
	 	(d)	 	The fourth installment of the purchase price, amounting to US $500,000.00 shall
be due on December 31, 2004.







 




			
	***	 	Portions of this page have been omitted
pursuant to a request for Confidential Treatment filed separately with the
Commission.




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	 	(e)	 	The fifth instalment of the purchase price, amounting to US $500,000.00 shall
be due on March 31, 2005.
	 
	 	(f)	 	The sixth instalment of the purchase price, amounting to US $500,000.00 shall
be due on June 30, 2005.
	 
	 	(g)	 	The seventh instalment of the purchase price, amounting to US $500,000.00 shall
be due on September 30, 2005.
	 
	 	(h)	 	The eighth instalment of the purchase price, amounting to US $250,000.00 shall
be due on December 31, 2005.






	(2)	 	Buyer shall have the right to prepay the entire amount of the purchase price at any time
without penalty.
	 
	(3)	 	Upon signature of this Agreement: (i) all profits attributable to the shares of Mediplant
from and after January 1, 2004 (the “Effective Date”) shall be for the account of the Buyer,
and any undistributed profits attributable to periods before the Effective Date shall be for
the account of the Seller; and (ii) all loan and other obligations of Mediplant to the Seller,
including but not limited to the loan agreement between Seller and Mediplant dated November 7,
2001 presently owed by Mediplant to the Seller together with all accrued interest payable on
such loan balance, shall be deemed discharged and satisfied in full, retroactively, to the
Effective Date.
	 
	(4)	 	Nothing contained in this Agreement shall prejudice Seller’s right to recover from Buyer the
full outstanding balance owed by Buyer to Seller pursuant to invoices on inter-company
account.
	 
	(5)	 	The parties have agreed that the purchase price shall be allocated to the respective assets
being purchased as follows:






	 	(a)	 	The Shares in Mediplant as defined in Article B. Section 1 below:
US$3,000,000.00;
	 
	 	(b)	 	The Trademarks as defined in Article B. Section 3 below:
US$500,000.00; and
	 
	 	(c)	 	The Know-How as defined in Article B. Section 3 below:
US$250,000.00






	(6)	 	In the event Buyer receives any license fees (lump sum and/or regular license fee and/or
royalty payments) and/or equity investments from licensees or distributors in any of
***, ***, *** , *** or *** , then in that event Buyer shall promptly pay to
Seller by wire transfer an amount equal to ***% of any such payments. All such payments by
Buyer will be credited against the outstanding installments of the purchase price in the
reverse order of their maturity.







 




			
	***	 	Portions of this page have been omitted
pursuant to a request for Confidential Treatment filed separately with the
Commission.




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Article B.

Sale and Transfer of the shares in Mediplant and the PMMA Business and Assets




Section 1

Definition of Shares in Mediplant





				
	(1)	 	The Seller is sole shareholder of Mediplant.
	 	 	 	 
	(2)	 	The nominal capital of Mediplant is EURO 26,000.00 and is fully paid up. It consists of the
following shares (hereinafter: Shares):
	 	 	 	 
	 	 	1 share to the nominal sum of 	EURO 13,000.00
	 	 	 	 
	 	 	1 additional share to the nominal sum of 	EURO 13,000.00.





Section 2

Sale and assignment of Shares





	 	 	The Seller sells the Shares designated in Article B. Section 1 above to the Buyer and
assigning same to the Buyer. The sale and assignment shall take effect with signing of this
Agreement. The Buyer accepts the sale and assignment of the forementioned Shares.





Section 3

Definition of PMMA Business and Assets





	(1)	 	The PMMA Business and Assets being sold and transferred to Buyer pursuant to this Agreement
comprise the assets, rights, interests and properties of Seller, as at the date of this
Agreement, as are set out below (collectively, the “PMMA Business and Assets”):






	 	(a)	 	All business activities of Seller in connection with the development,
manufacture, sale and distribution of PMMA Materials.
	 
	 	(b)	 	The trademarks described in Exhibit A hereto (the “Trademarks”). Seller and
Buyer waived the requirement for the reading of Exhibit A.
	 
	 	(c)	 	All of the following tangible and intangible intellectual property rights,
collectively referred to in this Agreement as the “Know-How: (i) except for the patents
described in paragraph (d) below (the “Patents”), all industrial and intellectual
property rights required for the manufacture of PMMA Materials, associated production
processes, business documents and operating documents, and know-how in respect of the
methods and processes necessary for the manufacture and quality assurance of PMMA
Materials; (ii) all research data and documentation, tables, experiment reports,
technical and commercial information, customer and supplier lists, trade secrets and
formulae in the ownership or control of Seller and all rights and interests of Seller
which are associated with, necessary to used or employed in connection with the
development, manufacture, sale or distribution of PMMA Materials; and (iii) a detailed
written description of the manufacturing process for PMMA Materials (the “Instruction
Manual”) and a detailed written description of the products which are intended to
result from the




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	 	 	 	manufacturing process (the “Product Description”) which will be provided to Buyer
not later than 90 days after the date of this Agreement.
	 
	 	(d)	 	All Seller’s rights and interests as licensee under the Exclusive License
Agreement (Vertrag über eine ausschließliche Lizenz) between the Seller as licensee and
the patent holder Dr. Martin Lemperle, Feldbergstr. 36, 60323 Frankfurt am Main as
licensor, an Exclusive License Agreement dated
March 28. / April 6, 1998 (hereafter: Exclusive License Agreement) in respect of the
following patents (hereafter: the Patents):





	 	 	 
	P18907235-9

	 	Brazil
	406 375

	 	European patent for Belgium, Switzerland, Spain, France,

Great Britain, Luxembourg, the Netherlands, Sweden
	E119012

	 	European patent for Austria
	589090720-08

	 	European patent for Germany
	HK1004519

	 	European patent for Hong Kong
	20087/BE/95

	 	European patent for Italy
	9790049-2

	 	European patent for Singapore







	 	 	The Buyer is aware of the full contents of the Exclusive License Agreement. The assignment
is subject to the condition precedent of approval by the patent holder and licensor, Dr.
Martin Lemperle.
	 
	 	 	The Buyer intends to acquire the Patents and all rights thereunder from Dr. Martin Lemperle
by means of a contract of sale so that, in a simultaneous transfer from the Seller to the
Buyer of the rights under the Exclusive Licence Agreement, the licensor and the licensee
would be one and the same person. On the effectiveness of the above assignment of the
Exclusive License Agreement and the effectiveness of the contract for the purchase of the
Patents between the Buyer and Dr. Martin Lemperle, the Exclusive License Agreement will
expire by way of confusion (Konfusion) of rights.





Section 4

Sale and Assignment of PMMA Business and Assets





	(1)	 	Upon payment by the Buyer of the first instalment of the purchase price, Seller sells and
will transfer immediately the PMMA Business and Assets to Buyer with retroactive effect to
January 1, 2004 (the “Effective Date”). Seller will cooperate with Buyer in the transfer of
the PMMA Business and Assets to Buyer and the registration thereof in the name of Buyer as
owner, effective as of the Effective Date. Seller will promptly execute and deliver all such
documents and instruments and do all such other lawful acts and things as may be necessary or
desirable to effect such transfer of ownership to and registration in the name of Buyer.
	 
	(2)	 	Buyer buys and accepts the transfer of the PMMA Business and Assets as described in this
Section 4.




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Article C.

Representations of Seller



Except for (i) matters specifically disclosed in this Agreement, (ii) the matters set out in the
Statement of Exceptions contained in Article D. of this Agreement (the “Statement of Exceptions”),
and/or (iii) the matters disclosed in deed no 206, 2004 by the notary Dr. Manfred Rack, Frankfurt
am Main (the “Disclosure Documents”), Seller represents (Beschaffenheitsmerkmale) to Buyer that, as
at the Effective Date and the date of this Agreement:





	(1)	 	The information provided in this Agreement in relation to the Seller, Mediplant, the Shares
and the PMMA Business and Assets, including but not limited to the Trademarks, is correct and
complete. The Seller may freely dispose of the Shares. The Shares are not encumbered with
rights of third parties. There are no shareholders of Mediplant other than the Seller. Seller
will sell and transfer the Shares to Buyer free and clear of all liens, claims, charges and
encumbrances. The Shares and the PMMA Business and Assets constitute the whole of the business
and assets of Seller that are associated with, necessary to, or used or employed in connection
with the business of the Seller in developing, manufacturing, selling and distributing PMMA
Materials.
	 
	(2)	 	There are no defects in Seller’s ownership of and title to the PMMA Business and Assets, and
the Seller will sell and transfer the PMMA Business and Assets to Buyer free and clear of all
liens, claims, charges and encumbrances.
	 
	(3)	 	Mediplant is a limited liability company (Gesellschaft mit beschränkter Haftung) properly
constituted under the laws of the Federal Republic of Germany and existing effectively in
accordance with its articles of association. There exist neither shareholders’ resolutions
which amend the articles of association and which have not yet been entered on the Commercial
Register nor any ancillary agreements relating to the constitution and organization of
Mediplant.
	 
	(4)	 	Mediplant has no equity interest in other enterprises and is under no obligation to acquire
any such interests.
	 
	(5)	 	Mediplant has not entered into with the Seller or any third parties any contracts between
business enterprises within the meaning of §§ 291 ff. AktG2 or agreements on the
formation of a silent partnership (stille Gesellschaft).
	 
	(6)	 	No rules of procedure for the management of Mediplant exist.
	 
	(7)	 	Neither a supervisory board nor an advisory board, administrative board or similar
institution has been established for Mediplant, nor does a shareholders’ committee exist for
Mediplant.







 




			
	2	 	AktG: German Company Law




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	(8)	 	The registered office and sole production site of Mediplant is at Ernst-Wiss-Strasse 18 in
65933 Frankfurt am Main.
	 
	(9)	 	There exist only the following tenancy agreements involving Mediplant:






	 	(a)	 	Tenancy agreement for the commercial use of premises between Mediplant as
tenant and Ms Marianne Kämpf as landlord regarding office and commercial space in the
property at Ernst-Wiss-Strasse 18 in 65933 Frankfurt am Main, dated September 27, 1999;
	 
	 	(b)	 	Subtenancy agreement between Mediplant as lessor and the firm Polyfea Polymer-
und Produktentwicklung Albrecht Dinkelaker, Ernst-Wiss-Str. 18, 65933 Frankfurt am
Main, as lessee regarding two rented rooms on the business premises of Mediplant at
Ernst-Wiss-Strasse 18 in 65933 Frankfurt am Main, dated October 30, 1999.






	(10)	 	Mediplant is not a party to any rental or leasing agreements for plant, machinery, fixtures
or fittings.
	 
	(11)	 	Mediplant has no contractual or other obligations for the acquisition of fixed assets which
involve in any one or series of transactions more than EUR 5,000.00 or the equivalent in any
other currency.
	 
	(12)	 	Registration of the trade of Mediplant, namely the development, manufacture and distribution
of biomaterial, has been filed with the City of Frankfurt am Main pursuant to § 15 Para. 1
Gewerbeordnung.3
	 
	(13)	 	Mediplant has no environmentally hazardous materials or underground or aboveground storage
facilities for environmentally hazardous materials.
	 
	(14)	 	The business operations of Mediplant have not caused any environmental pollution and no
reasonable grounds exist to believe that they will cause any environmental pollution.
	 
	(15)	 	Mediplant has not been the subject of any orders or complaints by governmental or regulatory
authorities or third parties under industrial or environmental laws or regulations over the
past five years.
	 
	(16)	 	The production facility of Mediplant is supplied with fresh water and waste water is
disposed of through the usual pipe systems and the usual sewage system respectively.
	 
	(17)	 	Mediplant is not a party to any collaboration agreements, development contracts or other
agreements in the field of industrial property rights.
	 
	(18)	 	There exists only one licence for MS Office concerning the use of software by Mediplant.







 




			
	3	 	Gewerbeordnung: German Industrial Code




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	(19)	 	Mediplant is the owner of and loss payee under the following insurance policies:






	 	•	 	Liability insurance policy with Frankfurter Versicherungs-Aktiengesellschaft /
Allianz Versicherungs-Aktiengesellschaft under policy no.
  ***   ;
	 
	 	•	 	Fire and business interruption insurance policy with Frankfurter
Versicherungs-Aktiengesellschaft / Allianz Versicherungs-Aktiengesellschaft under
policy no.
  ***
   ;
	 
	 	•	 	Index-linked property insurance policy (dynamische Sachversicherung) with
Frankfurter Versicherungs-Aktiengesellschaft / Allianz Versicherungs-Aktiengesellschaft
under policy no.
  ***






	(20)	 	No claims covered by the insurance policies owned by Mediplant have made by or against
Mediplant in the past five years.
	 
	(21)	 	Mediplant is not a party to any agreements with commercial agents, independent dealers or
other distribution agreements.
	 
	(22)	 	Mediplant employs one manager and two part-time employees as further described in Exhibit B
hereto.
	 
	(23)	 	Mediplant has not been involved in any labor law disputes in the past five years. Mediplant
is not subject nor a party to any collective agreements, or any work agreements or business
practices agreements.
	 
	(24)	 	Seller has delivered to Buyer the financial statements of Mediplant (including balance
sheet, profit and loss account and notes thereto together with the annual report of
management) for the calendar years ended December 31, 1999, 2000, 2001, 2002 and 2003, audited
by the tax accountant of Mediplant, all such financial statements and accounts, notes and
annual reports being referred to collectively as the “Financial Statements.” The Financial
Statements (i) have been prepared in accordance with and accurately reflect the books and
records of Mediplant, (ii) have been prepared in accordance with generally accepted German
accounting principles consistently applied by Mediplant throughout the periods indicated, and
(iii) present the financial position of Mediplant as of the respective dates of the balance
sheets included and the results of its operations for the respective periods indicated.
	 
	(25)	 	The tax returns of Mediplant for the years 2000, 2001, 2002 and 2003 have been properly and
correctly submitted. The tax assessments arising on the basis of the tax returns for 2000,
2001 and 2002 have been settled in full.
	 
	(26)	 	No government tax audit has taken place or is threatened.
	 
	(27)	 	There are no shortfalls in monetary contributions to the share capital of Mediplant or in
the full value of contributions in kind to its share capital.







 




			
	***	 	Portions of this page have been omitted
pursuant to a request for Confidential Treatment filed separately with the
Commission.




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	(28)	 	There are no obligations of the Seller to third parties arising from the granting of
guarantees, the furnishing of bonds or the cumulative assumption of debt for the obligations
of Mediplant. Mediplant has not granted any guarantees, furnished any bonds, or assumed the
debt of any third parties. Except as specifically disclosed and reserved against in the
Financial Statements, Mediplant has no debts.
	 
	(29)	 	The execution, delivery and performance of this Agreement by the Seller including the sale
of the Shares to Buyer have been duly authorized by all necessary corporate and shareholder
action on the part of both the Seller and Mediplant. A copy of the Shareholder Resolution of
FormMed’s shareholders authorizing the signature, delivery and performance of this Agreement
by FormMed is attached as Exhibit C to this Agreement.
	 
	(30)	 	The extraordinary meeting of shareholders of Mediplant held on July 21, 2004, gave its
consent to the sale and transfer of the Shares to the Buyer. The management of Mediplant has
declared to the Seller the consent of Mediplant to transfer of the Shares. A copy of the
consent of the shareholders of Mediplant is attached as Exhibit D to this Agreement, and a
certified true copy of the consent of the management of Mediplant is attached as Exhibit E to
this Agreement.
	 
	(31)	 	Seller further makes the additional representations (Beschaffenheitsmerkmale) contained in
the Schedule attached to this Agreement as Exhibit F (the “Schedule of Additional
Representations”).





Article D.

Statement of Exceptions



All claims and causes of action based upon or arising out of the following matters constitute
exceptions to the representations of Seller set out in Article C. of this Agreement the
representations contained in the Schedule of Additional Representations attached hereto as Exhibit
F:





	(1)	 	The License Agreement dated December 22, 1993, as amended, between Arte Pharma
Pharmazeutische Produkte GmbH, legal predecessor of FormMed Biomedicals AG, as licensor, and
R.M.I. ROFIL Medical International B.V. as licensee; the prolongation of such License
Agreement by a new agreement dated August 25, 1999; or the termination of any of the
foregoing.
	 
	(2)	 	The License Agreement dated January 30/March 06, 2000 between FormMed Biomedicals AG as
licensor and ARSIS Medical Holding B.V. as licensee; the extension of such License Agreement
by instrument dated March 10/March 15, 2002; or the termination of any of the foregoing.
	 
	(3)	 	The position of Dr. Martin Lemperle as a former shareholder of ARSIS Medical Holding B.V.
	 
	(4)	 	Any alleged license agreement between FormMed Biomedicals AG and European Medical Contract
Manufacturing B.V. or the alleged termination thereof.




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	(5)	 	The Exclusive License Agreement dated February 4/February 10, 1997 between Dr. Martin
Lemperle as owner/licensor and Bristol-Myers Squibb Company as licensee, to which BioForm,
Inc. (“BioForm”), is the successor licensee by virtue of an assignment from Bristol-Myers
Squibb Company; or the termination of such Exclusive License Agreement.





Article E.

Events of Default and Remedies





	(1)	 	In the event of any breach or default by any party (a “Defaulting Party”) in any of its
obligations or representations contained in this Agreement, the non-defaulting party shall
give written notice of such breach or default to the Defaulting Party. Such a Notice (a
“Default Notice”) shall state with particularity the breach or default on which the notice is
based and request the Defaulting Party to remedy or cure the breach or default within the
following periods (a “Remedy Period”): (i) if the breach or default occurs on or before July
31, 2004 the Remedy Period is 30 days after receipt of the Default Notice; and (ii) if the
breach or default occurs after July 31, 2004 the Remedy Period is 60 days after receipt of the
Default Notice.
	 
	(2)	 	During the applicable Remedy Period the parties will use all reasonable efforts to resolve
amicably the breach or default by negotiations in good faith. However, any breach or default
which is not remedied or cured or resolved by negotiations in good faith within the applicable
Remedy Period will constitute an event of default under this Agreement (hereafter: Event of
Default).
	 
	(3)	 	Upon the happening of an Event of Default by Seller, the Buyer shall be entitled to a
reduction in the purchase price paid for the Shares and/or the PMMA Business and Assets, as
the case may be, in accordance with §§ 437 No. 2, 441 BGB (German Civil Code) or refund of the
purchase price paid in excess. The Buyer shall not be entitled to withhold payment (right of
retention) in respect of any instalment of the purchase price or any part thereof except (i)
with the prior written consent of Seller, or (ii) upon ascertainment of an Event of Default by
Seller by final decision of a court of competent jurisdiction.
	 
	(4)	 	The parties are agreed that the representations of Seller contained in Article C of this
Agreement, including the Schedule of Additional Representation attached to this Agreement as
Exhibit F , do not constitute guarantees of quality within the meaning of § 444 BGB (German
Civil Code) but are to be regarded as “Beschaffenheitsmerkmale.”
	 
	(5)	 	The Seller shall be liable solely in accordance with the regulations of this Agreement, save
in the case of fraud or intentional misrepresentation. The right to rescind, save in the case
of fraud or intentional misrepresentation, and the right to improvement or subsequent
performance under §§ 437 No. 1, 439 BGB (German Civil Code) are expressly excluded.
	 
	(6)	 	Upon the happening of an Event of Default by the Buyer, the Seller shall be entitled to
exercise all rights and remedies to which it may be entitled according to German law and this
Agreement including, if applicable, its rights and remedies under the Assignment




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	 	 	Agreement and Security Agreement attached to this Agreement as, respectively, Exhibit G and
Exhibit H, and its rights and remedies under the Pledge Agreement attached to this Agreement
as Exhibit I.
	 
	(7)	 	All claims arising from or in connection with this Agreement shall become time-barred two
years after the date of signature of this Agreement.





Article F.

Tax Audits





	(1)	 	The Seller is responsible for all taxes attributable to Mediplant for all periods up to the
Effective Date. In the event of an external fiscal audit in respect of any period before the
Effective Date, the Buyer shall ensure that Mediplant gives the Seller and its professional
advisers the opportunity to participate in such audit. Seller shall keep strictly
confidential, and ensure that its professional advisers participating in any such audit keep
strictly confidential, all matters arising in relation to any such audit. The Buyer shall
ensure that Mediplant informs the Seller promptly of the announcement or commencement of any
such audits. If the Seller and Buyer cannot agree to a tax assessment resulting from any such
audit, Buyer shall at the request of Seller, and at Seller’s cost and expense, cause Mediplant
to contest or appeal such assessment by appropriate proceedings under the direction and
control of the Seller and at Seller’s cost and expense.
	 
	(2)	 	The Seller shall indemnify Buyer and hold Buyer harmless from and against any liability for
tax assessments relating to Mediplant for all periods up to the Effective Date.





Article G.

Confidentiality



Save for the disclosure of such information as is or becomes (i) publicly available through no
fault of any party hereto, (ii) required by the public disclosure laws or regulations of any
governmental or regulatory authority, (iii) necessary or appropriate in making any public filing or
obtaining any governmental or regulatory approval or consent required for the consummation of the
transactions contemplated by this Agreement, (iv) necessary or appropriate in connection with any
legal proceedings, and/or (v) necessary for the information of Buyer’s existing or prospective
investors:





	(1)	 	the parties undertake to maintain the strictest confidentiality with regard to the contents
of this Agreement and the transactions contemplated by this Agreement;
	 
	(2)	 	the parties agree that the information received in connection with the negotiation and
conclusion of this Agreement shall be treated with the strictest confidentiality; and
	 
	(3)	 	no party shall issue a press release or make any similar announcement with regard to the
legal matters contemplated by this Agreement without prior consultation with the other party
or parties and the written consent of the other party or parties.




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Article H.

Costs and Taxes





	(1)	 	Each party shall bear its own legal fees and expenses in connection with negotiating,
preparing and carrying out the transactions contemplated by this Agreement. Buyer will bear
all transfer and registration costs and all sales, transfer or similar taxes due or assessable
on the sale and transfer of the PMMA Business and Assets hereunder, exclusive of taxes which
are to be legally borne by the Seller. Buyer shall bear one-half of the costs of all notarial
certifications, and Seller the other half of such costs.
	 
	(2)	 	As used in this Agreement the phrase “legal fees and expenses” means (i) the fees,
disbursements and other expenses of legal counsel in providing representation and counseling,
(ii) the fees, disbursements and other expenses of expert witnesses, (iii) court costs and
filing fees and costs fixed by law or assessed by public agencies, and (iv) the cost of
depositions, transcripts and translation.





Article I.

Miscellaneous





	(1)	 	Severability
	 
	 	 	If any provisions of this Agreement, or any provisions included in the future, are wholly or
partially invalid or impractical, or become legally invalid or impractical at a later time,
this shall not affect the validity of the remaining provisions of this Agreement. The same
applies in the event that this Agreement is found to contain any omissions. In place of the
invalid or impractical provisions, or in order to correct the omission, another appropriate
provision will apply, which as far as legally possible, most closely approximates that
originally intended by the parties, or that which they would have intended, in accordance
with the sense and purpose of this Agreement, if they had considered the point in question
at the time of conclusion of this Agreement or the later inclusion of additional provisions.
The same applies if a provision is invalid, unlawful or unenforceable based on the extent of
services, payments or times specified in the Agreement; in this case, a legally permissible
extent of services, payments or times most closely approximating that intended will be
deemed to be agreed.






	(2)	 	Amendments and Waivers






	 	(a)	 	No amendment, modification or interpretation of any of the provisions of this
Agreement is effective unless made in writing and signed by the parties.
	 
	 	(b)	 	No waiver of any provision of this Agreement or right or remedy thereunder is
effective unless made in writing and signed by the party or parties making such waiver.
No waiver of any provision, right or remedy in one instance constitutes a waiver
thereof in any other instance unless the writing so specifies. No failure or delay on
the part of any party in the exercise or claim of any power or right under this
Agreement operates as a waiver thereof, and no single or partial exercise or claim of
any such power or right precludes any other or further exercise or claim thereof.




12









 






	 	(c)	 	Any amendment to the foregoing requirements for the written form also requires
the written form.






	(3)	 	Binding Language
	 
	 	 	The parties agree that the binding language of this Agreement is English.
	 
	(4)	 	Exclusive Venue
	 
	 	 	The exclusive venue is agreed to be the District Court (Landgericht) Frankfurt am Main
(Germany).
	 
	(5)	 	Governing Law
	 
	 	 	The parties agree the exclusive applicability of the law of the Federal Republic of Germany
to this Agreement. The application of the United Nations Convention on Contracts for the
International Sale of Goods to this Agreement is hereby expressly excluded.
	 
	(6)	 	Notices
	 
	 	 	Any notice, request, demand, consent, approval, declaration or similar communication (a
“notice”) under this Agreement shall be given or made in writing and shall be delivered
personally, sent by certified or registered mail with postage prepaid, or sent by telefax or
courier service with fees prepaid, addressed to the party or parties to whom they are
directed at the following addresses, or at such other address as may be designated by notice
from such party to each other party





	 	 	 	 	 
	 

	 	To:
	 	SELLER
	 

	 	 	 	Mr. Ulrich Naumann
	 

	 	 	 	FormMed Biomedicals AG
	 

	 	 	 	Seestr. 8
	 

	 	 	 	6314 Unterageri
	 

	 	 	 	Switzerland
	 

	 	 	 	Telefax: +41 (41) 7520307
	 
	 

	 	To:
	 	BUYER
	 

	 	 	 	Dr. Stefan M. Lemperle, M.D.
	 

	 	 	 	Artes Medical USA, Inc.
	 

	 	 	 	La Jolla Center I
	 

	 	 	 	4660 La Jolla Village Drive
	 

	 	 	 	Suite 825
	 

	 	 	 	San Diego, California 92122
	 

	 	 	 	United States of America
	 

	 	 	 	Telefax: (858) 550-9997







	 	 	Any notice given or made in the manner prescribed in this paragraph shall be deemed received
when delivered. ANY PURPORTED NOTICE BY E-MAIL SHALL BE INEFFECTIVE.






13









 








	(7)	 	Additional Action
	 
	 	 	Each party shall execute and deliver all such documents and instruments as may be reasonably
required or advisable, and shall use all reasonable business efforts to do, or cause to be
done, and to assist and cooperate with each other in doing, all things reasonably required
or advisable to consummate and make effective, in the most expeditious manner practicable,
the transactions contemplated by this Agreement.
	 
	(8)	 	Attachments
	 
	 	 	All appendices, schedules, exhibits, annexes and other attachments to this Agreement are
integral parts hereof and incorporated into it by reference.
	 
	(9)	 	Prior Agreements
	 
	 	 	This Agreement supersedes all prior agreements and understandings between the parties,
whether written or oral, with respect to its subject matter.





Article J.

Further Provisions





	(1)	 	To the corresponding question of the notary, the Seller declared that the assets of Mediplant
and the operation to be transferred did not include any real property.
	 
	(2)	 	The notary instructed the parties that the Buyer has unlimited liability for the monetary
contributions not performed and for the shortfalls of contributions in kind not effected at
full value of all shareholders.
	 
	(3)	 	The recording notary is requested to notify Mediplant of transfer of the Shares in accordance
with § 16 GmbHG (German Limited Liability Company Act).





Article K.

Powers of Attorney



The persons appearing hereby authorize the Notary Public, each for himself and released from the
prohibition of self-contracting, to make supplementary declarations of all kinds and to do all that
is necessary and expedient for execution in the above matter as well as to effect notifications to
the Commercial Register.




Place Zug                                        Date July 22nd, 2004




	 	 	 
	/s/ Dr. Stefan Lemperle

	 	/s/ Ulrich Naumann
	 

	 	 
	Dr. Stefan M. Lemperle

	 	Ulrich Naumann
	CEO of ARTES Medical USA, Inc.

	 	FormMed Biomedicals AG






14









 





PUBLIC NOTARISATION



The undersigned Notary Public of the Canton of Zug, attorney-at-law Helga Schlumpf, Gubelstrasse
11, 6300 Zug, herewith publicly notarises:



This record together with its annexes was read aloud in my presence to the persons appearing, the
record was approved by them and signed by them in my presence.



The persons appearing waived the requirement for the reading of Exhibit A.




	 	 	 
	Zug, July 22, 2004

	 	The Notary Public
	 
	 	 
	 

	 	(Urkundsperson des Kantons Zug)
	 
	 	 
	



	 

	 	/s/ Helga Schlumpf
	 

	 	Helga Schlumpf
	









This deed was issued in 8 specimens (1 for the notary, 7 for the parties)




 









 





Exhibit A




to the




Purchase Agreement for a partial Enterprise




- Trademarks –





 










 




Page 1




TRADEMARKS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	FormMed
	Trademark	 	Serial No	 	Public. No	 	Country	 	Owner	 	Deposited	 	Registered	 	File
	ARTEPLAST
	 	2031205	 	2031205	 	Germany	 	FMB	 	 	 	1993-02-26	 	FCH-002
	ARTEPLAST
	 	601339	 	601339	 	IR*	 	FMB	 	 	 	1993-04-26	 	FCH-002-IR
	ARTEPHARMA
	 	2031206	 	2031206	 	Germany	 	FMB	 	 	 	1993-02-26	 	FCH-003
	ARTEPHARMA
	 	1533615	 	1533615	 	Great Britain	 	FMB	 	 	 	1992-10-28	 	FCH-003-GB
	ARTEPHARMA
	 	601340	 	601340	 	IR**	 	FMB	 	 	 	1993-04-26	 	FCH-003-IR
	ARTEPHARMA
	 	5-43309	 	3237449	 	Japan	 	FMB	 	 	 	1996-12-25	 	FCH-003-JP
	ARTECOLL
	 	2039522	 	2039522	 	Germany	 	FMB	 	 	 	1993-06-30	 	FCH-004
	ARTECOLL
	 	2017877	 	1638796	 	Argentina	 	FMB	 	 	 	1997-07-24	 	FCH-004-AR
	ARTECOLL
	 	701850	 	701850	 	Australia	 	FMB	 	 	 	1997-06-20	 	FCH-004-AU
	ARTECOLL
	 	819011002	 	819011002	 	Brazil	 	ARTE PHARMA	 	 	 	1998-09-08	 	FCH-004-BR
	ARTECOLL
	 	801636	 	TMA523113	 	Canada	 	FMB	 	 	 	2000-02-15	 	FCH-004-CA
	ARTECOLL
	 	415739	 	531471	 	Chile	 	FMB	 	 	 	1999-01-06	 	FCH-004-CL
	ARTECOLL
	 	3050432	 	0	 	EM*	 	FMB	 	2003-02-13	 	0	 	FCH-004-EM
	ARTECOLL
	 	2042682	 	2042682	 	Great Britain	 	FMB	 	 	 	1995-10-26	 	FCH 004-GB
	ARTECOLL
	 	9805661	 	133/2000	 	Hong Kong	 	FMB	 	 	 	2000-01-05	 	FCH-004-HK
	ARTECOLL
	 	1191799	 	1191799	 	Israel	 	FMB	 	 	 	1999-09-07	 	FCH-004-IL
	ARTECOLL
	 	807824	 	274434	 	India	 	FMB	 	1998-06-25	 	2003-11-10	 	FCH-004-IN
	ARTECOLL
	 	2039522	 	612046	 	IR***	 	FMB	 	 	 	1993-10-08	 	FCH-004-IR
	ARTECOLL
	 	8-137582	 	4218461	 	Japan	 	FMB	 	 	 	1998-12-04	 	FCH-004-JP
	ARTECOLL
	 	97-1210	 	397845	 	Korea	 	FMB	 	 	 	1998-02-09	 	FCH-004-KR
	 
	 	 	 	394875	 	 	 	 	 	 	 	 	 	 
















 




Page 2



Trademarks (continued)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	FormMed
	Trademark	 	Serial No	 	Public. No	 	Country	 	Owner	 	Deposited	 	Registered	 	File
	ARTECOLL
	 	329912	 	629135	 	Mexico	 	FMB	 	 	 	1999-10-21	 	FCH-004-MX
	ARTECOLL
	 	98/059440
 98/05940	 	0	 	Malaysia	 	FMB	 	1998-05-19	 	0	 	FCH-004-MY
	ARTECOLL
	 	4-1998-035
 4-1998-03571	 	0	 	Philippines	 	FMB	 	1998-05-15	 	2003-06-26	 	FCH-004-PH
	ARTECOLL
	 	302643	 	KOR53063 
3 
Kor53063k	 	Thailand	 	FMB	 	 	 	1996-12-21	 	FCH-004-TH
	ARTECOLL
	 	85063876	 	804461	 	Taiwan	 	FMB	 	 	 	1998-06-01	 	FCH-004-TW
	ARTECOLL
	 	75/036,478	 	2155277	 	USA	 	FMB	 	 	 	1998-05-05	 	FCH-004-US
	ARTECOLL
	 	98/07984	 	1998/0798 
1998/07984	 	South Africa	 	FMB	 	 	 	1998-0512	 	FCH-004-ZA
	ARTEGEL
	 	A54330/5WZ	 	2039523	 	German	 	FMB	 	 	 	1993-06-30	 	FCH-005
	ARTEGEL
	 	003051067	 	003051067	 	EM*	 	FMB	 	2003-02-13	 	0	 	FCH-005-EM
	ARTEGEL
	 	2039523	 	612047	 	IR****	 	FMB	 	 	 	1993-09-30	 	FCH-005-IR
	Logo
 ARTEPHARMA
	 	A56738/10W	 	2907076	 	Germany	 	FMB	 	 	 	1995-05-29	 	FCH-006
	ARTECOLL &
 DESIGN
	 	111938	 	0	 	Canada	 	FMB	 	2001-10-24	 	nicht mehr anhängig	 	FCH-013-CA
	ARTECOLL &
DESIGN
	 	494530	 	494530	 	Switzerland	 	FMB	 	 	 	2002-02-12	 	FCH-013-CH
	ARTECOLL &
 DESIGN
	 	3431965	 	0	 	China	 	FMB	 	2003-01-10	 	0	 	FCH-013-CN
	ARTECOLL &
 DESIGN
	 	2422707	 	2422707	 	EM*	 	FMB	 	 	 	2003-07-21	 	FCH-013-EM
	ARTECOLL &
 DESIGN
	 	200206922 
200206722	 	0	 	Hong Kong	 	FMB	 	2002-05-10	 	0	 	FCH-013-HK
	ARTECOLL &
 DESIGN
	 	2001-95445	 	4649667	 	Japan	 	FMB	 	 	 	2003-02-28	 	FCH-013-JP
	ARTECOLL &
 DESIGN
	 	513585	 	0	 	Mexico	 	FMB	 	2001-10-24	 	nicht mehr anhängig	 	FCH-013-MX
	ARTECOLL &
 DESIGN
	 	T01/16626H	 	T0116626	 	Singapore	 	FMB	 	 	 	2001-10-24	 	FCH-013-SG
















 




Page 3



Trademarks (continued)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	FormMed
	Trademark	 	Serial No	 	Public. No	 	Country	 	Owner	 	Deposited	 	Registered	 	File
	ARTECOLL &
 DESIGN
	 	76/405387	 	0	 	USA	 	FMB	 	2002-05-07	 	0 nicht mehr anhängig	 	FCH-013-US
	ARTECOLL &
 USA
	 	76/405388	 	0	 	USA	 	FMB	 	2002-05-07	 	0 nicht mehr anhängig	 	FCH-014-US
	ARTECOLL USA & DESIGN
	 	76/405389	 	0	 	USA	 	FMB	 	2002-05-07	 	0 nicht mehr anhängig	 	FCH-015-US








 




			
	IR*	: 	International Registration


Germany, Austria, Benelux, China, Czech, Spain, France, Hungary,
Italy, Liechtenstein, Monaco, Slovakia
	 
	IR**	: 	International Registration


Germany, Austria, Benelux, China, Czech, Spain, France, Hungary,
Italy, Liechtenstein, Monaco, Slovakia
	 
	IR***	: 	International Registration


Germany, Austria, Benelux, Belarus, Russia, China, Czech, Spain,
France, Hungary, Italy, Liechtenstein, Monaco, Slovakia, Poland,
Republic Ukraine, Yugoslavia, Denmark, Finland, Norway, Sweden
	 
	IR****	: 	International Registration


Germany, Austria, Benelux, China, Czech, Spain, France, Hungary,
Italy, Liechtenstein, Monaco, Slovakia
	 
	EM*	: 	European Trademark


Deposited or registered in the country of the European Union


Germany, Austria, Luxemburg, The Netherlands, Belgium, Spain,
France, Italy, Finland, Sweden, Denmark, United Kingdom, Portugal,
Greece, Ireland
	 
	FMH**	: 	FMH=FormMed Healthcare AG; former firm name of FormMed Biomedicals AG
	 
	FMB	: 	FormMed Biomedicals AG
















 







Exhibit B




to the




Purchase Agreement for a partial Enterprise




- Management and Employees of Mediplant –




 









 





Exhibit B




— Management and Employees of Mediplant —




               Wolfgang Schunk


 




          Managing Director (Geschäftsführer):




          Mr. Schunk administers this job           ***          . The commitment is based upon the requirement.




          Management of Production, Production, Quality Assurance-Management:




          This job is remunerated on an hourly basis; € *** per hour.




               Sabine and Peter Herbick


 



Both operate in production and are acquainted with all tasks arising in this context (preparation
of PMMA raw material, process of sieving, analyses, hygiene control, documentation, procurement of
material, cleaning, etc.).




          Sabine and Peter Herbick execute the tasks upon demand by Mediplant. The period of a task is solely based upon the
criteria of when the product objective is achieved and is remunerated on an hourly bass; € *** per
hour.






 




			
	***	 	Portions of this page have been omitted
pursuant to a request for Confidential Treatment filed separately with the
Commission.




 









 










Exhibit C




to the




Purchase Agreement for a partial Enterprise




- Shareholder’s Resolution –



Intentionally Omitted.




 









 








Exhibit D




to the




Purchase Agreement for a partial Enterprise




- Consent of Mediplant’s shareholder to the Transfer of its Shares –



Intentionally Omitted.




 









 








Exhibit E




to the




Purchase Agreement for a partial Enterprise




- Consent of Mediplant to the Transfer of its Shares –



Intentionally Omitted.




 









 








Exhibit F




to the




Purchase Agreement for a partial Enterprise




- Schedule of Representations –



Intentionally Omitted.