Assets to be Purchased; Purchase Price. On the Closing Date (as defined below), and subject to the terms and conditions of this Agreement, the Seller shall sell, assign, convey, and transfer, and the Buyer shall purchase, acquire, accept, and assume, the Assets (as defined below), in exchange for, due or payable at the Closing (as defined below), the following consideration (the "Purchase Price"): (a) $700,000 in the form of a certified or cashiers' check, money order, or wire-transfer of immediately available funds (the "Cash"). (b) A promissory note in the form attached hereto as Exhibit A (the "$300,000 Note") in the principal amount of $300,000.00, without interest, and payable in three equal installments of principal in the amount of $100,000.00 each (or such other adjusted amount calculated as set forth below), and with the first such installment due on the 120th day after the Closing Date, the second such installment due on the 240th day after the Closing Date, and the third such installment due on the one-year anniversary of the Closing Date; provided, however, that beginning with the first day of the first full calendar month for which the Seller's customers as of the date hereof (the "Existing Customers") are billed by the Buyer and for three months thereafter (the "Three-Month Post-Closing Period"), in the event that the amount of the Buyer's average monthly accrual basis sales to such Existing Customers (exclusive of any fees, price increases or surcharges implemented by the Buyer) during the Three-Month Post-Closing Period (the "Three-Month Post-Closing Average Monthly Sales Amount") is less than $99,545.00, the difference between the Three-Month Post-Closing Average Monthly Sales Amount and $99,545.00 shall be multiplied by 12 to obtain an adjustment amount (the "Revenues Adjustment Amount"), and such Revenues Adjustment Amount shall be deducted from the Purchase Price as follows: 33% of such Revenues Adjustment Amount shall be deducted from the principal amount of the $300,000 Note; 33% of such Revenues Adjustment Amount shall be deducted from the principal amount of the $550,000 Note (as defined below); and 34% of such Revenues Adjustment Amount shall be deducted from the Shares (as defined below) by redemption and cancellation of Shares at the Share Value (as defined below) for no consideration; provided, however, that in the event that the principal amount of the $300,000 Note, the principal amount of the $550,000 Note, or the value of the Shares is insufficient to permit the full deduction allocated thereto as set forth in the immediately preceding clause, any such deficiency shall be reallocated first to the principal amount of the $300,000 Note, next to the principal amount of the $550,000 Note, and last to the Shares. Any such deduction to the $300,000 Note or the $550,000 Note pursuant to this Section 1.01(b) or Sections 1.01(e) or 5.09 shall be applied to the first payment due thereunder and then to subsequent payments due thereunder in chronological order. No later than 30 days after the end of the Three-Month Post-Closing Period, the Buyer shall provide the Seller with a true, correct and complete copy of its invoice register for such Three-Month Post-Closing Period with respect to the Existing Customers. (c) A promissory note in the form attached hereto as Exhibit I (the "$550,000 Note") in the principal amount of $550,000.00, secured by the Purchased Units (as defined below) with serial numbers 1, 4 and 5 pursuant to a Security Agreement in the form attached hereto as Exhibit M (the "Security Agreement"), with simple interest at the annual rate of 8% accruing from the Closing Date and payable in six equal installments of interest only in the amount of $3,666.66 each due monthly beginning on the 30th day after the Closing Date, and 54 equal installments of principal and interest in the amount of $12,161.83 each due monthly thereafter. To the extent that any interest is paid on the $550,000 Note and the principal amount of such note is subsequently reduced in accordance with the terms of this Agreement, any interest previously paid by the Buyer that is in excess of an 8% annual rate on such newly-reduced principal amount will be credited against the principal amount of the $550,000 Note such that the amount of interest paid on such newly-reduced principal amount, if any, will not exceed 8% annually. (d) 360,000 restricted shares (the "Shares") of the Buyer's common stock, $.001 par value per share (the "Common Stock"), valued at $1.25 per share for the purposes of this Agreement (the "Share Value"). (e) If the Buyer shall have to pay, directly or indirectly, during the first 90 days after the Closing Date, any amount, including without limitation by way of reimbursement, rebate, credit or invoice adjustment, to any Existing Customer relating to any customer complaints or grievances based on any action or failure to act by the Seller prior to the Closing Date, such payment shall be deducted from the Purchase Price as follows: 33% of such amount shall be deducted from the principal amount of the $300,000 Note; 33% of such amount shall be deducted from the principal amount of the $550,000 Note; and 34% of such amount shall be deducted from the Shares by redemption and cancellation of Shares at the Share Value for no consideration; provided, however, that in the event that the principal amount of the $300,000 Note, the principal amount of the $550,000 Note, or the value of the Shares is insufficient to permit the full deduction allocated thereto as set forth in the immediately preceding clause, any such deficiency shall be reallocated first to the principal amount of the $300,000 Note, next to the principal amount of the $550,000 Note, and last to the Shares. Notwithstanding any provision of this subsection (e) to the contrary, the Buyer shall first provide notice of any such customer complaint or grievance to the Seller, and the Seller shall have 48 hours from the receipt of such notice to respond to the Buyer regarding such customer complaint or grievance, before the Buyer shall make any such payment to any Existing Customer.
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Assets to be Purchased; Purchase Price. On the Closing Date (as defined below), and subject to the terms and conditions of this Agreement, the Seller shall sell, assign, convey, and transfer, and the Buyer shall purchase, acquire, accept, and assume, the Assets (as defined below) and the Assumed Liabilities (as defined below), in exchange for, due or payable at the Closing (as defined below), the following consideration (the "Purchase Price"):
(a) $700,000 250,000 in the form of a certified or cashiers' check, money order, or wire-transfer of immediately available funds (the "Cash").
(b) A promissory note in the form attached hereto as Exhibit A J (the "$300,000 30-Day Note") in the principal amount of $300,000.00250,000, without interest, and payable in three equal installments of principal in the amount of $100,000.00 each (or such other adjusted amount calculated subject to adjustment as set forth below), and with the first such installment due on the 120th day after the Closing Date, the second such installment due on the 240th day after the Closing Date, and the third such installment due on the one-year anniversary of the Closing Date; provided, however, that beginning with the first day of the first full calendar month for which the Seller's customers as of the date hereof in this Section 1.01(b) (the "Existing Customers") are billed by the Buyer and for three months thereafter (the "Three30-Month Post-Closing Period"), in the event that the amount of the Buyer's average monthly accrual basis sales to such Existing Customers (exclusive of any fees, price increases or surcharges implemented by the Buyer) during the Three-Month Post-Closing Period (the "Three-Month Post-Closing Average Monthly Sales Amount") is less than $99,545.00, the difference between the Three-Month Post-Closing Average Monthly Sales Amount and $99,545.00 shall be multiplied by 12 to obtain an adjustment amount (the "Revenues Adjustment Day Principal Amount"), and such Revenues Adjustment Amount shall be deducted from with no interest, secured by the Purchase Price as follows: 33% of such Revenues Adjustment Amount shall be deducted from the principal amount of the $300,000 Note; 33% of such Revenues Adjustment Amount shall be deducted from the principal amount of the $550,000 Note (as defined below); and 34% of such Revenues Adjustment Amount shall be deducted from the Shares (as defined below) by redemption and cancellation of Shares at the Share Value (as defined below) for no consideration; provided, however, that in the event that the principal amount of the $300,000 Note, the principal amount of the $550,000 Note, or the value of the Shares is insufficient to permit the full deduction allocated thereto Assets as set forth in the immediately preceding clause, any such deficiency shall be reallocated first to the principal amount of the $300,000 Note, next to the principal amount of the $550,000 Note, and last to the Shares. Any such deduction to the $300,000 Note or the $550,000 Note pursuant to this Section 1.01(b) or Sections 1.01(e) or 5.09 shall be applied to the first payment due thereunder and then to subsequent payments due thereunder more particular detail in chronological order. No later than 30 days after the end of the Three-Month Post-Closing Period, the Buyer shall provide the Seller with a true, correct and complete copy of its invoice register for such Three-Month Post-Closing Period with respect to the Existing Customers.
(c) A promissory note security agreement in the form attached hereto as Exhibit I K (the "$550,000 NoteSecurity Agreement") and personally guaranteed by Mxxxxxx X. Xxxxxxx as set forth in the principal amount of $550,000.00, secured by the Purchased Units (as defined below) with serial numbers 1, 4 and 5 pursuant to more particular detail in a Security Agreement guaranty agreement in the form attached hereto as Exhibit M L (the "Security Guaranty Agreement"), with simple interest at the annual rate of 8% accruing from the Closing Date and payable in six equal installments of interest only in the amount of $3,666.66 each due monthly beginning as follows: (i) on the 30th day after the Closing Date, and 54 equal installments of principal and interest in the amount of $12,161.83 each due monthly thereafter. To the extent that any interest is paid on the $550,000 Note and the principal amount of such note is subsequently reduced in accordance with the terms of this Agreement, any interest previously paid by the Buyer that is in excess of an 8% annual rate on such newly-reduced principal amount will be credited against the principal amount of the $550,000 Note such that the amount of interest paid on such newly-reduced principal amount, if any, will not exceed 8% annually.
(d) 360,000 restricted shares Date (the "Shares") of the Buyer's common stock, $.001 par value per share (the "Common StockFirst Consent Deadline"), valued at $1.25 per share for the purposes of this Agreement (the "Share Value").
(e) If the Buyer shall have to pay, directly or indirectly, during the first 90 days after the Closing Date, any amount, including without limitation by way of reimbursement, rebate, credit or invoice adjustment, to any Existing Customer relating to any customer complaints or grievances based on any action or failure to act by the Seller prior to the Closing Date, such payment shall be deducted from the Purchase Price as follows: 33% of such amount shall be deducted from the principal amount of the $300,000 Note; 33% of such amount shall be deducted from the principal amount of the $550,000 Note; and 34% of such amount shall be deducted from the Shares by redemption and cancellation of Shares at the Share Value for no consideration; provided, however, that in the event that the principal amount of the $300,000 Note, the principal amount of the $550,000 Note, or the value of the Shares is insufficient to permit the full deduction allocated thereto as set forth in the immediately preceding clause, any such deficiency shall be reallocated first to the principal amount of the $300,000 Note, next to the principal amount of the $550,000 Note, and last to the Shares. Notwithstanding any provision of this subsection (e) to the contrary, the Buyer shall first provide notice of any such customer complaint or grievance pay to the Seller, and Seller that portion of the Seller shall have 48 hours from the receipt of such notice to respond 30-Day Principal Amount equal to the Buyer regarding such customer complaint or grievanceamount that is the product of (W) a fraction the numerator of which is the aggregate average monthly sales for the months of May 2004, before June 2004, July 2004 and August 2004 (collectively, the Buyer shall make any such payment "Four-Month Period") under the Seller's contracts with Existing Customers (as defined below) relating to any Existing Customer.the Schedule 3.12 Consents (as defined
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Assets to be Purchased; Purchase Price. On the Closing Date (as defined below), and subject to the terms and conditions of this Agreement, the Seller shall sell, assign, convey, and transfer, and the Buyer shall purchase, acquire, accept, and assume, the Assets (as defined below) and the Assumed Liabilities (as defined below), in exchange for, due or payable at the Closing (as defined below), the following consideration (the "Purchase Price"):
(a) $700,000 620,000 in the form of a certified or cashiers' check, money order, or wire-transfer of immediately available funds (the "Cash").
(b) A promissory note in the form attached hereto as Exhibit A (the "$300,000 Note") in the principal amount of $300,000.00, without interest, and payable in three equal installments of principal in the amount of $100,000.00 each (or such other adjusted amount calculated as set forth below), and with the first such installment due on the 120th day after the Closing Date, the second such installment due on the 240th day after the Closing Date, and the third such installment due on the one-year anniversary of the Closing Date; provided, however, that beginning with the first day of the first full calendar month for which the Seller's customers as of the date hereof 750,000 (the "Existing Customers") are billed by the Buyer and for three months thereafter (the "Three-Month Post-Closing Period"), in the event that the amount of the Buyer's average monthly accrual basis sales to such Existing Customers (exclusive of any fees, price increases or surcharges implemented by the Buyer) during the Three-Month Post-Closing Period (the "Three-Month Post-Closing Average Monthly Sales Amount") is less than $99,545.00, the difference between the Three-Month Post-Closing Average Monthly Sales Amount and $99,545.00 shall be multiplied by 12 to obtain an adjustment amount (the "Revenues Adjustment Principal Amount"), and such Revenues Adjustment Amount shall be deducted from the Purchase Price as follows: 33% of such Revenues Adjustment Amount shall be deducted from the principal amount secured by certain of the $300,000 Note; 33% of such Revenues Adjustment Amount shall be deducted from the principal amount assets of the $550,000 Note (as defined below); and 34% of such Revenues Adjustment Amount shall be deducted from the Shares (as defined below) by redemption and cancellation of Shares at the Share Value (as defined below) for no consideration; provided, however, that in the event that the principal amount of the $300,000 Note, the principal amount of the $550,000 Note, or the value of the Shares is insufficient to permit the full deduction allocated thereto Buyer as set forth in the immediately preceding clause, any such deficiency shall be reallocated first to the principal amount of the $300,000 Note, next to the principal amount of the $550,000 Note, and last to the Shares. Any such deduction to the $300,000 Note or the $550,000 Note pursuant to this Section 1.01(b) or Sections 1.01(e) or 5.09 shall be applied to the first payment due thereunder and then to subsequent payments due thereunder more particular detail in chronological order. No later than 30 days after the end of the Three-Month Post-Closing Period, the Buyer shall provide the Seller with a true, correct and complete copy of its invoice register for such Three-Month Post-Closing Period with respect to the Existing Customers.
(c) A promissory note security agreement in the form attached hereto as Exhibit I (the "$550,000 Note") in the principal amount of $550,000.00, secured by the Purchased Units (as defined below) with serial numbers 1, 4 and 5 pursuant to a Security Agreement in the form attached hereto as Exhibit M B (the "Security Agreement"), with simple interest at the annual rate of 87% accruing from payable in 11 interest-only installments due monthly and with the Principal Amount and the final interest payment due on the first anniversary of the Closing Date; provided, however, that any invoiced amounts for the regulated medical waste processed by the Buyer for the Seller after the Closing Date shall be deducted from the Principal Amount and payable in six equal installments of any accrued and unpaid interest only in the amount of $3,666.66 each due monthly beginning on the 30th day after the Closing Date, and 54 equal installments of principal and interest in the amount of $12,161.83 each due monthly thereafterthereon. To the extent that any interest is paid on the $550,000 Note and the principal amount of such note Principal Amount is subsequently reduced in accordance with the terms of this Agreement, any excess interest previously paid by the Buyer that is in excess of an 8% annual rate on such newly-reduced principal amount will be credited against the principal amount of future interest payment(s) and/or the $550,000 Note Principal Amount such that the amount of interest paid on such newly-reduced principal amount, if any, the Principal Amount will not exceed 8% annually7%.
(dc) 360,000 705,072 restricted shares (the "Shares") of the Buyer's common stock, $.001 par value per share (the "Common Stock"), valued at $1.25 per share for the purposes of this Agreement (the "Share Value"); provided, however, that the number of Shares may increase or decrease subject to the following: to the extent that actual aggregate sales from existing customers relating to the contracts listed on Schedule 3.16 (the "Existing Customers") for the months of November 2003, December 2003, January 2004, February 2004, March 2004 and April 2004 (the "Actual Sales Amount") are less than $1,584,000 (the "Projected Sales Amount"), such Actual Sales Amount to be determined by May 31, 2004, the annualized difference between the Actual Sales Amount and the Projected Sales Amount shall be multiplied by 0.78 to obtain an adjustment amount (the "Sales Adjustment Amount"), and the total number of Shares issued to the Seller shall be reduced effective as of the Closing Date by a number of Shares equal to the quotient of the Sales Adjustment Amount divided by the Share Value, provided that the total number of Shares issued to the Seller shall not be less than zero pursuant to this Section 1.01(c). To the extent that the Actual Sales Amount is greater than the Projected Sales Amount, the total number of Shares issued to the Seller shall be increased effective as of the Closing Date by a number of Shares equal to the quotient of the Sales Adjustment Amount divided by the Share Value; provided further that, if within 90 days after the Closing Date certain prospective customers as listed on Schedule 1.01(c) (the "90-Day Customers") have entered into standard Buyer service contracts for terms of at least one year, or within 180 days after the Closing Date certain prospective customers as listed on Schedule 1.01(c) who have shown significant progress within 90 days after the Closing Date towards entering into standard Buyer service contracts for terms of at least one year have entered into such contracts (the "180-Day Customers"), the aggregate expected annual revenues, net of chargebacks, refunds, rebates, returns and offsets, to the Buyer from such service contracts with the 90-Day Customers and 180-Day Customers, in each such case as determined within 30 days after the initial billing to such customer, shall be multiplied by 0.50 to obtain an adjustment amount (the "Revenues Adjustment Amount"), and the total number of Shares issued to the Seller shall be increased effective as of the Closing Date by a number of Shares equal to the quotient of the Revenues Adjustment Amount divided by the Share Value. No later than 30 days after the end of each of the calendar months November 2003 through April 2004, inclusive, the Buyer shall provide the Seller with a true, correct and complete copy of its invoice register for such month with respect to customers of the Seller as of the Closing Date.
(d) The assumption of certain of the Seller's liabilities not to exceed $200,000, as more particularly described in Section 1.05 of this Agreement.
(e) If the Buyer shall have to pay, directly or indirectly, during the first 90 days year after the Closing Date, any amount, including without limitation by way of reimbursement, rebate, credit or invoice adjustment, to any Existing Customer relating to any customer complaints or grievances based on any action or failure to act by the Seller prior to the Closing Date, such payment shall be deducted by the Buyer first from the Purchase Price as follows: 33% of such amount shall be deducted from the principal amount of the $300,000 Note; 33% of such amount shall be deducted from the principal amount of the $550,000 Note; Principal Amount and 34% of such amount shall be deducted any accrued and unpaid interest accrued thereon, and second from the Shares by redemption and cancellation of Shares at the Share Value for no consideration; provided, however, that in the event that the principal amount of the $300,000 Note, the principal amount of the $550,000 Note, or the value of the Shares is insufficient to permit the full deduction allocated thereto as set forth in the immediately preceding clause, any such deficiency shall be reallocated first to the principal amount of the $300,000 Note, next to the principal amount of the $550,000 Note, and last to the Shares. Notwithstanding any provision of this subsection (e) to the contrary, the Buyer shall first provide notice of any such customer complaint or grievance to the Seller, and the Seller shall have 48 hours from the receipt of such notice to respond to the Buyer regarding such customer complaint or grievance, before the Buyer shall make any such payment to any Existing Customer.
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