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Exhibit 2.2
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AGREEMENT FOR PURCHASE AND SALE OF STOCK
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This AGREEMENT FOR PURCHASE AND SALE OF STOCK is entered into with an
effective date of the _____ day of October, 2007 by and between Xxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxxx (the "Sellers") TB&A HOSPITAL
TELEVISION, INC., a New York Corporation with its principal office at 00
Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000 (the "Company"), and PATIENT PORTAL
TECHNOLOGIES, INC., a Delaware corporation (the "Purchaser").
WHEREAS, Sellers are the owners and holders of 100% of the issued and
outstanding capital stock of the Company, more particularly described and set
forth in Exhibit "A" attached hereto;
WHEREAS, Purchaser desires to purchase from Sellers, and Sellers desire
to sell to Purchaser those shares set forth in Exhibit "A" hereto;
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties agree as follows:
1. PURCHASE AND SALE OF STOCK. Sellers shall assign, transfer, convey
and deliver to the Purchaser all of its right, title and interest in and to the
shares of Common Stock of the Company set forth in Exhibit "A" to this Agreement
(collectively referred to herein as the "Sellers' Shares").
2. PAYMENT FOR SELLERS'S ASSETS.
2.1 The total payment for the Sellers' Shares shall be comprised
of the following, and payable to the Sellers proportionately as their interests
appear on Exhibit "A" attached hereto:
2.1.1 CASH. At the Closing, Purchaser will pay or deliver
to Sellers the following as partial consideration for the Sellers' Shares the
sum of $3,000,000.
2.1.2 ACCOUNTS RECEIVABLES. At the Closing and as
additional consideration for the Sellers' Shares, Sellers shall be credited with
the amount of any and all Accounts Receivable existing of the Company as of such
date, and such sum shall be due and payable to the Sellers upon collection by
the Company.
3. CLOSING. The consummation of the purchase and sale of the Sellers'
Assets as provided for in this Agreement will take place by the execution of
documents in counterpart in Buffalo, NY by the appropriate and designated
signatories ("Closing") on or before the 1st day of November, 2007.
4. SELLERS'S OBLIGATIONS AT CLOSING; FURTHER ASSURANCES.
4.1 At the Closing, Sellers shall deliver or make available to the
Purchaser:
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4.1.1 Assignment of Shares signed by Sellers in the form
attached as Exhibit "B";
4.1.2 any other instruments of assignment and transfer
necessary to vest in Purchaser good and marketable title to Sellers' Shares;
4.1.3 all contracts and records relating to the operations
of the Company;
4.1.4 all corporate documents required by counsel for the
Purchaser which shall be necessary to transfer control of the Company from the
Sellers to the Purchaser;
4.1.4 all documents required by this Agreement.
4.2 At any time after the Closing, Purchaser may request and
Sellers must sign and/or deliver any documents reasonably necessary to transfer
and assign to Purchaser, and confirm Purchaser's title to Sellers' Shares, and
to assist Purchaser in the exercise of all rights thereto.
5. PURCHASER'S OBLIGATIONS AT CLOSING.
5.1 At the Closing, Purchaser shall deliver to Sellers:
5.1.1 the cash payment described in Section 2.1.1 allocated
pursuant to written instructions of Sellers to be provided to Purchaser prior to
Closing;
5.1.2 all other documents required by this Agreement.
5.1.3 proof of payment in full of all obligations to M&T
Bank
5.1.4 delivery to seller of corporate guaranty and share
pledge agreement obligations as additional security for repayment of the Xxxx X.
Xxxx and Xxxxxx X. Xxxx notes.
6. REPRESENTATIONS AND WARRANTIES BY SELLERS AND THE COMPANY. To the
best of its knowledge and belief, Sellers and the Company represent and warrant
to Purchaser as follows:
6.1 ORGANIZATION, STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, with an authorized capitalization of 100 Shares of
Class A Common Stock and 100 Shares of Class B Common Stock, of which 50 Shares
of Class A and 44.45 Shares of Class B Common Stock are issued and outstanding.
The Company has all requisite power and authority and is entitled to carry on
its business as now being conducted and to own, lease or operate its properties
as and in the places where such business is now conducted.
6.2 EXECUTION AND PERFORMANCE OF AGREEMENT; AUTHORITY. The
performance of this Agreement by Sellers and the Company will not result in a
default or breach of any other agreement to which Sellers and/or the Company are
a party. Sellers and the signatories for the Company have the authority to enter
into this Agreement.
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6.3 LITIGATION. There is no claim, order, investigation or other
proceeding against the Company, its employees, its properties, or business or
the transactions contemplated by this Agreement, and Sellers and the Company
know of no basis for the same.
6.4 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. To the best of
Sellers' and the Company's knowledge, the Company has complied with all laws
applicable to its business and the ownership and use of the Company's assets as
well as the conduct of its business will not conflict with the rights of any
other person or entity, and will not cause a default under any agreement to
which the Company is a party. Sellers and the Company are not aware of any
proposed laws, condemnations or other proceedings which would adversely affect
its business or the Company's assets in a material way.
6.5 TITLE TO PROPERTIES. The Company has good title to its assets.
None of the Company's assets are subject to any lien, lease, license, or adverse
claim except (i) as expressly set forth in Schedule 1 attached to this
Agreement, or (ii) insubstantial imperfections of title which have arisen in the
ordinary course of business. To the best of Sellers' and the Company's
knowledge, except as set forth in the schedules attached to this Agreement, the
Company's assets are in good operating condition and repair (reasonable wear and
tear accepted), are suitable for the purposes used, and are adequate for all
current operations of Sellers.
6.6 DISCLOSURE. All of Sellers' and the Company's representations
made in this Agreement and its related documents are true and contain no untrue
statements and do not omit important facts.
6.7 NO CONFLICT. To the best of Sellers knowledge, performance of
this Agreement by Sellers and the Company will not conflict with any regulations
or agreements to which Sellers and/or the Company are parties. No authorization
or filing, which has not already been completed, is necessary for Sellers or the
Company to perform this Agreement.
7. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents
and warrants to Sellers as follows:
7.1 ORGANIZATION. Purchaser is a corporation organized and in good
standing under the laws of the State of Delaware and has full authority to enter
into this Agreement and to carry on its business and to own and operate its
properties.
7.2 AUTHORIZATION AND APPROVAL OF AGREEMENT. All actions required
to be taken by Purchaser relating to the signing of this Agreement shall have
been taken at or prior to the Closing.
7.3 EXECUTION AND PERFORMANCE OF AGREEMENT. The performance
of this Agreement by Purchaser will not result in a default or breach of any
other agreement to which Purchaser is a party. Purchaser has the authority to
enter into this Agreement.
7.4 LITIGATION. There is no claim, order, investigation or other
proceeding, against Purchaser relating to the transactions contemplated by this
Agreement and Purchaser does not know or have any reason to be aware of any
basis for the same.
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8. ACCESS TO INFORMATION AND DOCUMENTS. Upon Purchaser's request,
Sellers and the Company shall give Purchaser access to the Company's personnel
and all its properties, documents and records and shall furnish copies of
documents requested by Purchaser or make them available to Purchaser. Purchaser
shall not improperly disclose the same prior to the Closing.
9. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. All obligations of
Purchaser under this Agreement are subject to, at Purchaser's option, each of
the following conditions at or prior to the Closing, and Sellers and the Company
shall use their best efforts to cause each condition to be fulfilled:
9.1 All representations of Sellers and the Company in this
Agreement or the related documents shall be correct when made and shall be
deemed to have been made again as of the Closing Date, and shall then be correct
except for changes allowed under the terms of this Agreement.
9.2 All duties required by this Agreement to be performed by
Sellers and the Company at or before the Closing shall be performed.
9.3 Since the date of this Agreement there shall be no material
adverse change in the condition of the Company's assets or its business.
9.4 All documents required to be delivered or made available to
Purchaser at or prior to the Closing shall be delivered or made available.
9.5 Shares of Common Stock (of all outstanding classes) of the
Company representing 100% of the issued and outstanding capital stock of the
Company shall have been tendered by the Sellers to the Purchaser.
10. CONDITIONS PRECEDENT TO SELLERS' OBLIGATIONS. All obligations of
Sellers at the Closing are subject to, at Sellers option, each of the following
conditions at or prior to the Closing, and Purchaser shall use its best efforts
to cause each condition to be fulfilled:
10.1 All representations of Purchaser contained in this Agreement
or the related documents shall be correct when made and as of the Closing.
10.2 All duties required by this Agreement to be performed by
Purchaser at or before the Closing shall be performed.
11. INDEMNIFICATION.
11.1.1 any loss suffered by Purchaser because a
representation was not true, a warranty was breached or a duty was not performed
by Sellers or the Company contained in this Agreement or a related document;
11.1.2 any loss suffered by Purchaser in connection with
any of the Company's liabilities which are not assumed or discharged by
Purchaser; and
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11.1.3 any claims, judgments and expenses, including legal
fees, incurred for any of the foregoing or for attempting to avoid or oppose the
same or for enforcing this indemnity.
11.2 Purchaser hereby agrees to indemnify and hold Sellers
harmless from:
11.2.1 any loss suffered by Sellers because a
representation was not true, a warranty was breached or a duty was not performed
by Purchaser contained in this Agreement or a related document;
11.2.2 any liabilities or debts of Sellers assumed by
Purchaser under this Agreement; and
11.2.3 any claims, judgments and expenses, including legal
fees, incurred for any of the foregoing or for attempting to avoid or oppose the
same or for enforcing this indemnity.
12. LIMITATION ON INDEMNIFICATION. No claim or action shall be brought
against Sellers under Section 11 for breach of a representation or warranty, for
any loss suffered by Purchaser in connection with any of the Company's
liabilities or for any other reason after the lapse of one (1) year following
the Closing. In calculating losses, there shall be deducted any amount which has
been recovered or is reasonably assured of recovery by the Purchaser from
insurance or from a third party and the amount by which any tax for which the
Purchaser is at any time liable is reduced or satisfied as a result of a claim
indemnification. Purchaser shall not be entitled to indemnification for breaches
of representations and warranties by Sellers or for any other reason until the
total amount of its losses (after deduction of all insurance proceeds, third
party recoveries and tax benefits with respect to such losses) exceeds $10,000,
after which the Purchaser shall be entitled to seek recovery of all losses in
excess of $10,000. The maximum aggregate liability of all the Sellers, for all
claims for any reason, shall not exceed $100,000, which sum shall be the
absolute limit of liability of all the Sellers.
13. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Subject to
the limitations in Section 12, all representations and warranties contained in
this Agreement shall survive the Closing.
14. NOTICES. Any notices described under this Agreement shall be in
writing and shall be deemed given when personally delivered and received by
certified mail, return receipt requested, addressed to the parties at the
addresses set forth above and below.
15. ARBITRATION. Any action, dispute, controversy or claim between or
among the parties, whether sounding in contract, tort, or otherwise ("Dispute")
shall, at the request of any party, be finally resolved by arbitration before a
single arbitrator in accordance with the commercial rules and procedures as
established by the American Arbitration Association, with venue in Erie County,
State of New York.
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16. MISCELLANEOUS.
(a) Governing Laws. The laws of the State of New York, without regard
to its choice of law principles to the extent they would result in the
application of the laws of any other state, shall govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto.
(b) Severability. If any one or more provisions of this Agreement, or
the application thereof, shall for any reason and to any extent by invalid or
unenforceable, the remainder of this Agreement shall be interpreted so as best
to reasonably effect the intent of the parties. The parties further agree to
replace any such void or unenforceable provisions of this Agreement with valid
and enforceable provisions that will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provisions.
(c) Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter and it
supersedes all prior negotiations and agreements relating to the matters
addressed herein. This Agreement may be amended only by a writing signed by all
parties hereto.
(d) No Waiver. The failure of any party to enforce any of the
provisions of this Agreement shall not be construed to be a waiver of the right
of the party thereafter to enforce such provisions.
(e) Assignment. Neither this Agreement nor any rights hereunder are
assignable or otherwise transferable by a party without the written consent of
all parties.
(f) Attorney Fees Provision. In any litigation, arbitration, or other
proceeding by which one party either seeks to enforce its rights under this
Agreement (whether in contract, tort, or both) or seeks a declaration of any
rights or obligations under this Agreement, the prevailing party shall be
awarded its reasonable attorney fees, and costs and expenses incurred.
(g) Counterparts and Facsimile Documents. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Facsimile or other electronic copies of signed documents shall be deemed to be
original signed documents for all purposes hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the date first written above.
TB&A HOSPITAL TELEVISION, INC.
By:______________________________________
PATIENT PORTAL TECHNOLOGIES, INC.
By:______________________________________
SELLING SHAREHOLDERS OF THE COMPANY:
[As Set Forth and Duly Executed On Exhibit "A" Attached Hereto]
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EXHIBIT "A"
SELLING SHAREHOLDERS OF THE COMPANY
Name: No. of Shares Signature:
And Class:
Xxxxxx X. Xxxxx 50 Class A Shares
000 Xxxx Xxx Xxx
Xxxxxxxxxxxxx, XX 00000 ------------------------------
Xxxxxx X. Xxxxxxxxx 38.90 Class B Shares
000 Xxxxxxxxx Xxxxx
X. Xxxxxxxxx, XX 00000 ------------------------------
Xxxxxxx X. Xxxxxxxx 5.55 Class B Shares
00 Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000 ------------------------------
EXHIBIT "B"
ASSIGNMENTS OF SHARES
100% of the shares are being assigned to Patient Portal Technologies, Inc
SCHEDULE 1
LIENS, ETC.
A series of promissory notes due and payable to M&T Bank in approximate
principal amount of $850,000.
A promissory note payable to Xxxxxx X. Xxxx with approximate principal balance
of $163,227.50 which is due or payable on or before 1/7/2010.
A promissory note payable to Xxxx X. Xxxx with a principal balance of $40,000
which is extended on a monthly basis.
A promissory note payable to Xxxx X. Xxxx with a principal balance of $200,000
which is due or payable on or before 7/1/2008.
Copy Machine Lease dated September 21, 2004
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