PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT made and entered into by and between TRI-STATE
LASER CORPORATION, which has its principal place of business at 0000 Xxxxx
Xxxxx 00, Xxxxxxxxxxxx, XX 00000 (hereinafter referred to as "Seller"), and
LIGHT TOUCH VEIN & LASER, INC., whose address is 00000 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 (hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller is the owner of certain tangible and intangible assets
used in the business of laser surgery; and
WHEREAS, Seller desires to sell and convey such assets, certain
liabilities and obligations to Purchaser upon the provisions set forth; and
WHEREAS, Purchaser desires to purchase such assets, assume certain
liabilities and obligations from Seller for the purpose of conducting the
business engaged in by Seller.
NOW, THEREFORE, in consideration of the above premises and the mutual
promises, covenants, understandings, representations and warranties
hereinafter contained, the parties agree as follow:
1. AGREEMENT.
Seller agrees to sell and convey to Purchaser all of the tangible
and intangible assets as hereinafter set forth in Paragraph 2. The agreements
of Seller and Purchaser herein are expressly conditioned upon the terms,
conditions, covenants, representations and warranties as hereinafter set
forth.
2. PROPERTY PURCHASED.
A. ASSETS. The properties which Seller shall convey hereunder
shall be certain tangible and intangible assets used by Seller in the
operation of its business, including the name "TRI-STATE LASER" as shown on
the attached schedule designated "ASSETS" (Exhibit "A").
B. LIABILITIES. Seller acknowledges that Purchaser is acquiring
Seller's ASSETS and is assuming certain liabilities of Seller and obligations
of Seller as shown on the attached schedule designated "LIABILITIES and
OBLIGATIONS" (Exhibit "B"). Seller will indemnify and hold Purchaser harmless
against all claims for product, service and liability against Seller arising
out of operations by Seller before Closing
Such indemnity includes all claims which may
accrue before closing which may be asserted before or after closing and which
may be known or unknown by Seller.
Purchaser will indemnify and hold Seller harmless
against all claims for product, service and
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liability agreement arising out of operation by Purchaser after closing
except as described above.
3. PURCHASE PRICE.
A. The total purchase price for the ASSETS shall be 53 shares of
LIGHT TOUCH VEIN & LASER, INC. Additionally, Seller shall deliver to
Purchaser an executed Employment Agreement with Xxxxx Xxxxxx (XXXXXX),
President of Tri-State Laser Corporation. Terms and conditions are set forth
in the EMPLOYMENT CONTRACT attached hereto as Exhibit "C".
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
A. The Seller warrants and covenants as follows:
i. That the Seller is a corporation duly organized, existing
and in good standing under the laws of the State of Ohio, has full power and
lawful authority to carry on its current business and to execute and carry
out the terms, conditions and provisions of this Agreement, and that the
execution and delivery of this Agreement by Seller has been duly authorized
by proper corporate action, and that on the Closing Date the Seller will have
all necessary corporate power and authority to consummate this Agreement as
provided herein, and that this Agreement constitutes a valid obligation
binding upon Seller in accordance with its terms.
ii. That Seller shall introduce Purchaser to all customers
and shall assist Purchaser in obtaining assurances of continued business from
said customers during the
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transition period.
iii. That as of the Closing date, the ASSETS shall be operable
and usable for their intended purpose and the inventory will be usable or
salable in the Seller's ordinary business.
iv. That there is no litigation, investigation or proceeding
pending, or to the best of Seller's knowledge threatened against the ASSETS
and/or the Seller's business operations which might materially and adversely
affect the ASSETS or Seller's business operations.
v. That the execution and performance of the terms, conditions
and provisions of this Agreement and the consummation of the transactions
contemplated hereunder by the Seller, to the best of Seller's knowledge, will
not violate the provisions of any law, contract, agreement, mortgage, lease,
pledge agreement, security agreement or other agreement or instrument of any
nature.
B. The warranties, representations and covenants set forth in
this Agreement shall survive the Closing Date for a period of two (2) year
from the date of closing except for a period of four (4) years from the date
of closing for any and all tax liabilities.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
A. Purchaser represents, warrants and covenants that Purchaser
has full power and lawful authority to execute and carry out the terms of
this Agreement.
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B. That there are no lawsuits, actions or proceedings pending or
threatened which could effect Purchaser's ability to consummate the
transaction.
C. That the execution and delivery of the Agreement and
consummation of the transaction will not be in conflict with any agreements
or encumbrances to which the Purchaser is bound.
6. TITLE AND CONVEYANCE OF ASSETS.
Seller shall convey to Purchaser good and merchantable title to the
ASSETS by a Xxxx of Sale and Assignment with covenants of warranty, only as
provided by manufacturers of equipment, free of all liens and encumbrances
whatsoever in the form attached hereto as "Exhibit D".
7. CONDUCT OF BUSINESS PENDING CLOSING.
Seller covenants, represents and warrants in favor of Purchaser
that pending completion of the Closing, unless otherwise agreed to in writing
by Purchaser:
A. Between the date hereof and the Closing Date, Seller will not,
without the Purchaser's knowledge and consent, engage in any sale, enter into
any contract, incur any liability or permit any act or transaction to occur
which materially adversely affects the ASSETS of Seller's business, and which
is outside the ordinary course of business.
B. Seller will use its best efforts to preserve the business and
all ASSETS in good order and repair and preserve the goodwill of its
suppliers, customers and other necessary business
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relationships with Seller.
8. ASSUMPTION OF EMPLOYMENT CONTRACTS.
Seller specifically assigns all Employment Contracts currently in
force with its employees to Purchaser. Purchaser may, at its option, elect to
require all employees of Seller to sign new Employment Contracts with
Purchaser.
9. CLOSING.
This Agreement shall close (the "Closing") and all deliveries of
documents and the consideration shall take place as agreed to by the parties.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER.
A. All obligations of Purchaser under this Agreement shall be
subject to the fulfillment by Seller of each of the following conditions,
except to the extent any such conditions are expressly waived in writing by
Purchaser at or prior to the date of Closing:
i. All of the representations, warranties and covenants made
by Seller shall be true as of the date of this Agreement and shall likewise
be true in all material respects as of the Closing date as if made at and as
of such date.
ii. Purchaser shall have received at Closing a certificate of
the Secretary of Seller, dated the Closing Date, in the form and substance
reasonably satisfactory to Purchaser's counsel stating that:
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(1) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio, and is
duly qualified to do business and is in good standing in the State of Ohio.
(2) Seller has the full power and authority to make,
execute, deliver and perform this Agreement.
(3) All corporate and other proceedings required to be
taken by Seller authorizing Seller to enter into and carry out this Agreement
and the transactions contemplated hereby, have been duly and are properly
taken, that the same are in full force and effect, this Agreement constitutes
a valid obligation binding upon Seller in accordance with its terms and that
complete copies of which, executed by all directors and shareholders are
attached thereto.
iii. Purchaser shall have received at the Closing date the
following:
(1) A consent by Seller to use the name "TRI-STATE LASER".
(2) A fully-executed Employment Contract between
Purchaser and XXXXXX.
(3) Xxxx of Sale properly executed by Seller conveying
the Assets.
(4) Such other instruments and documents that Purchaser
shall reasonably request for the purpose of further perfecting its title in
Seller's ASSETS.
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11. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER.
A. All obligations of Seller under this Agreement shall be
subject to their receipt of the following at or prior to the date of Closing:
i. All of the representations, warranties and covenants made
by Purchaser shall be true as of the date of this Agreement and shall
likewise be true in all material respects as of the Closing date as if made
at and as of such date;
ii. Seller shall have received at Closing, a statement from
Purchaser that:
(1) Purchaser has the full power and authority to make,
execute, deliver and perform this Agreement.
(2) All corporate and other proceedings required to be
taken by Purchaser authorizing Purchaser to enter into and carry out this
Agreement and the transactions contemplated hereby, have been duly and are
properly taken, that the same are in full force and effect, this Agreement
constitutes a valid obligation binding upon Purchaser in accordance with its
terms and that complete copies of which, executed by all directors and
shareholders are attached thereto.
iii. Seller shall have received, on the day of closing, the
required stock certificates pursuant to
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Paragraph 3, an executed Employment Contract between Purchaser and
Xxxxxx, and all ancillary agreements that are referenced to in this
Agreement.
12. DEFAULT.
A. If either the Purchaser or the Seller breaches or defaults on
any of the terms, conditions, warranties and representation set forth herein,
then the other party shall notify the breaching party in writing of the
breach and provide thirty (30) days to cure the breach (unless a different
time period is set forth in the Agreement). If the breaching party has not
cured the breach or default within the time permitted herein, the Seller
shall have the right to exercise all its rights permitted by law. The Seller
shall be entitled to collect its costs, including reasonable attorney fees.
B. Purchaser shall have the right to terminate this Contract if
Seller is found to be in default (and the default is not cured pursuant to
Paragraph 11. a.), or in any other way found to have violated the
representations and warranties contained in Paragraphs 4, 5 and 7
13. ASSIGNMENT
This Agreement is nonassignable by either party except by written
agreement of the parties.
14. AMENDMENT.
This Agreement shall not be amended or modified except by means of
a written instrument executed by Seller and Purchaser.
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15. PARTIES IN INTEREST.
This Agreement shall inure to the benefit of and be binding upon
the Seller and Purchaser and their respective heirs, successors and assigns.
Nothing in this Agreement, express or implied, is intended to confer upon any
other person, other than the parties hereto, any rights or remedies under or
by reason of this Agreement.
16. NOTICES.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly delivered if in
person or if mailed by certified mail, return receipt requested, to the
address set forth above.
17. ENTIRE AGREEMENT.
This Agreement shall be governed by the law of the State of Ohio.
This Agreement sets forth the entire understanding of the parties hereto and
supersedes any and all prior agreements, arrangements and understandings
relating to the subject matter hereof. No party shall be deemed or construed
to have made any representation or warranty as a result of execution of this
Agreement nor shall any representation or warranty be implied from such
execution except representations and warranties which are expressly set forth
herein.
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IN WITNESS WHEREOF, the Purchaser and Seller have executed this Purchase
Agreement as of the date set forth below their respective signatures.
PURCHASER: SELLER:
LIGHT TOUCH VEIN & LASER, INC. TRI-STATE LASER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxx Xxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx Xxxxx Xxxxxx
Its: President Its: President
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Dated: 1/18/99 Dated: 1/15/99
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