Exhibit 10.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Agreement for Purchase and Sale of Assets ("Agreement") is made as of
September 14, 2007 by and among MTI Partners II, L.P. ("MTI-II" or "Seller"), a
limited partnership with a principal business address of 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxx 0, Xxxxx 000, Xxxxxxx, Xxxxxxx, and Modern Medical Modalities
Corporation ("MMMC" or "Buyer"), a New Jersey corporation with a principal
business address of 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx.
1. Sale and Transfer of Assets. Subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell, convey, transfer, assign, and
deliver to Buyer, and Buyer agrees to purchase from Seller, the assets
("Assets") of Seller as described on Exhibit "A" hereto.
2. Consideration From Buyer at Closing. As full payment for the transfer
of the Assets to Buyer, at the closing ("Closing") of the sale of Assets, Buyer
shall deliver to Seller a stock certificate(s) in the name of Seller, or its
assigns, representing 500,000 shares of MMMC common stock, and a stock warrant
agreement in the name of Seller, or its assigns, representing 900,000 shares of
MMMC common stock at $0.70 per share exercise price, and shall pay $250,000 USD
within 12 months from the date of this agreement to Seller, or its assigns as
specified in Exhibit "B" (which collectively represents the "Purchase Price").
3. Assumption of Liabilities. It is expressly understood and agreed that
Buyer shall not be liable for any of the obligations or liabilities of Seller of
any kind and nature.
4. Taxes. Seller shall be responsible and shall pay all taxes of any kind
or character relating to the Assets, if any. Furthermore, Seller shall be
responsible for the payment of any transfer taxes of any kind or character
arising from the sale and transfer of the Assets pursuant to this Agreement.
5. Representations and Warranties of Seller. Seller represents and
warrants, that:
5.1 Debts, Obligations and Liabilities. Seller does not have any debts,
liabilities, or obligations of any nature, whether accrued, absolute,
contingent, or otherwise, whether due or to become due, related to or
encumbering the Assets.
5.2 Tax Returns Filed. Within the times and in the manner prescribed by
law, Seller has filed all tax returns required by law and has paid all taxes,
assessments and penalties due and payable. There are no present disputes as to
taxes of any nature payable by Seller. Seller will provide Buyer with copies of
all tax returns filed for the last three fiscal years if requested by Buyer.
5.3 Trade Names, Trademarks and Copyrights. Exhibit "C" to this Agreement
is a schedule of all trade names, trademarks, service marks and copyrights and
their registrations, if any, owned by Seller or in which Seller has any rights
or licenses, solely as they relate to the Assets. Seller has no knowledge of any
infringement or alleged infringement by others of any such trade name,
trademark, service xxxx or copyright. Seller has not infringed, and is not now
infringing, on
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any trade name, trademark, service xxxx or copyright belonging to any other
person. Seller has the right to sell or assign to Buyer all owned trademarks,
trade names, service marks and copyrights, and all such licenses or other
rights.
5.4 Trade Secrets As they relate to the Assets, Seller is the sole owner
of each of these trade secrets, free and clear of any liens, encumbrances,
restrictions, or legal or equitable claims of others. Seller has taken all
reasonable security measures to protect the secrecy, confidentiality and value
of these trade secrets. Any of Seller's partners or employees and any other
persons who, either alone or in concert with others, developed, invented,
discovered, derived, programmed or designed these secrets, or who have knowledge
of or access to information relating to them, have been put on notice and, if
appropriate, have entered into agreements that these secrets are proprietary to
Seller and are not to be divulged or misused.
5.5 No Competition. In consideration for the purchase of the Assets,
Seller agrees that it will not, for a period of two years from the date of this
agreement, directly or indirectly engage in, or have any interest in any person,
firm, corporation, or business that produces, manufactures, develops, markets,
purchases, or sells medical software that is competitive with the Assets.
Furthermore, neither Seller nor any of its employees or partners shall disclose,
divulge, communicate, use to the detriment of Buyer or for the benefit of any
other person or persons, or misuse in any way any confidential information or
trade secrets, including technology information, secret processes, know-how,
formulas or other technical data transferred by Seller to Buyer.
5.6 Title to Assets. Seller has good and marketable title to all the
Assets and interests in the Assets, whether real, personal, mixed, tangible, or
intangible, which constitute all the Assets and interests in the Assets that
Seller is transferring to Buyer. The Assets are free and clear of restrictions
on or conditions to transfer or assignment, and free and clear of mortgages,
liens, pledges, charges, encumbrances, equities, claims, easements, covenants,
conditions or restrictions, the lien of current taxes not yet due and payable
and possible minor matters that, in the aggregate, are not substantial in amount
and do not materially detract from or interfere with the present or intended use
of the Assets.
5.7 Compliance with Laws. Seller has complied with, and is not in
violation of, any statute, law or regulation affecting the Assets.
5.8 Litigation. There is not pending, and Seller is unaware of any
threatened suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation, against or affecting the Assets.
5.9 Agreement Will Not Cause Breach or Violation. The consummation of the
transaction contemplated by this Agreement will not result in or constitute any
of the following: (1) a default or an event that, with notice or lapse of time
or both, would be a default, breach or violation of any lease, license,
promissory note, conditional sales contract, commitment, indenture, mortgage,
deed of trust, or other agreement, instrument or arrangement to which Seller is
a party or by which the Assets are bound; (2) an event that would permit any
party to terminate any agreement or to accelerate the maturity of any
indebtedness or other obligation of Seller related to the Assets;
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or (3) the creation or imposition of any lien, charge or encumbrance on the
Assets.
5.10 Authority and Consents. Seller has the right, power, legal capacity
and authority to enter into and perform its obligations under this Agreement,
and no approvals or consents of any governmental authorities or persons other
than Seller are necessary in connection with it. The execution and delivery of
this Agreement by Seller has been duly authorized by all necessary corporate
action on the part of Seller.
5.11 Full Disclosure. None of the representations and warranties made by
Seller in this Agreement, or made in any certificate or memorandum furnished or
to be furnished by Seller, contains or will contain any untrue statement of a
material fact, or omits to state a material fact, necessary to make the
statements made not misleading. All representations and warranties of Seller
included in this Agreement and in any written statements delivered to Buyer
under this Agreement will be true and correct as of the Closing Date as if made
on that date.
6. Indemnification and Survival of Representations and Warranties.
6.1 Survival of Representations, Warranties, Covenants and Agreements. The
representations, warranties, covenants, agreements and undertakings of Seller
set forth herein shall survive the Closing.
6.2 Indemnification by Seller. Seller shall indemnify, defend and hold
harmless Buyer and its past and present officers, directors, affiliates, agents
and representatives against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney's fees, that
Buyer shall incur or suffer that arise, result from or relate to any breach or
inaccuracy of, or failure by Seller to perform, any of its representations,
warranties, covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by Seller
under this Agreement. Specifically, without limiting the foregoing, Seller shall
be solely responsible for the payment of any sums incurred as a result of any
claim of intellectual property infringement by a third party with respect to the
Assets.
7. Mutual Conditions Precedent. The closing of this transaction will be
conditioned upon:
7.1 The completion, and MMMC's satisfaction with the results thereof, of
MMMC's due diligence investigation of the Assets.
7.2 Approval must be obtained by the Board of Directors of MMMC and the
General Partner of MTI-II.
8. Seller's Obligations Before Closing. Seller covenants that from the
date of this Agreement until the Closing:
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8.1 Buyer's Access to Premises and Information. Buyer and its counsel,
accountants and other representatives shall have full access during normal
business hours to all properties, books, accounts, records, contracts and
documents of or relating to the Assets. Seller shall furnish or cause to be
furnished to Buyer and its representatives all data and information concerning
the Assets that may be reasonably requested.
8.2 Conduct of Business in Normal Course. Seller will carry on its
business and activities diligently and in substantially the same manner as it
previously has been carried out and shall not make or institute any unusual or
novel methods of manufacture, purchase, sale, management, accounting or
operation that vary materially from those methods used by Seller as of the date
of this Agreement.
8.3 Existing Agreements. Seller will not modify, amend, cancel or
terminate any existing contracts or agreements, solely related to the Assets,
without the written consent of Buyer.
9. Buyer's Obligations Before Closing. Buyer agrees that, unless and until
the Closing has been consummated, Buyer will hold in strict confidence, and will
not use to the detriment of Seller, all data and information with respect to the
Assets obtained in connection with this transaction. If the transaction
contemplated by this Agreement is not consummated, Buyer will return to Seller
all the data and information that Seller may reasonably request. Whether or not
the Closing shall take place, Seller shall waive any cause of action, right or
claim arising out of the access of Buyer or its representatives to any trade
secrets or other confidential business information from the date of this
Agreement until the Closing Date, except for the intentional competitive misuse
by Buyer or its representatives of such trade secrets or other confidential
business information if the Closing does not take place.
10. Cooperation in Securing Consents of Third Parties. Buyer will use its
best efforts to assist Seller in obtaining the consent of all necessary persons
and agencies to the assignment and transfer to Buyer of the Assets to be
assigned and transferred under the terms of this Agreement.
11. Conditions Precedent to Buyer's Performance. The obligations of Buyer
to purchase the Assets under this Agreement are subject to the satisfaction, at
or before the Closing, of all the conditions set out below. Buyer may waive any
or all of these conditions in whole or in part, provided, however, that no such
waiver of a condition shall constitute a waiver by Buyer of any of its other
rights or remedies, at law or in equity, if Seller shall be in default of any
representation, warranty or covenant under this Agreement.
11.1 Accuracy of Seller's Representations and Warranties. Except as
otherwise permitted by this Agreement, all representations and warranties of
Seller included in this Agreement or in any written statement that shall be
delivered to Buyer under this Agreement shall be true on and as of the Closing
Date as though made at that time.
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11.2 Performance by Seller. Seller shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by each of them, on or before the
Closing Date.
11.3 No Material Adverse Change. Prior to the Closing Date, Seller shall
not have sustained any material loss or damage to the Assets. For purposes of
this Agreement, changes, loss or damage shall be deemed to be "material" or
"materially adverse" if the cost to remedy any such individual change or
aggregate of changes shall equal or exceed One Thousand U.S. Dollars (U.S.
$1,000).
11.4 Buyer's Inspection. Buyer shall make, or cause to be made, such
investigation as it deems necessary or advisable of the Assets. Buyer shall have
the right to terminate this Agreement if, as a result of its investigation, it
is not satisfied with any of its findings.
11.5 Due Approval. The execution and delivery of this Agreement by Seller
and the performance of its covenants and obligations under it will be duly
authorized by all necessary action by Seller and Buyer shall receive copies of
all materials pertaining to that authorization, certified by Seller as true and
correct.
12. Conditions Precedent to Seller's Performance. The obligations of
Seller to sell and transfer the Assets under this Agreement are subject to the
satisfaction, at or before the Closing, of all of the following conditions.
Seller may waive any or all of these conditions in whole or in part, however, no
such waiver of a condition shall constitute a waiver by Seller of any of its
rights or remedies, at law or in equity, if Buyer should be in default of any of
its representations, warranties or covenants under this Agreement.
12.1 Accuracy of Buyer's Representations and Warranties. All
representations and warranties by Buyer contained in this Agreement or in any
written statement delivered by Buyer under this Agreement shall be true on and
as of the Closing Date as though such representations and warranties were made
on and as of that date.
12.2 Buyer's Performance. Buyer shall have performed and complied with all
covenants and agreements and satisfied all conditions that it is required by
this Agreement to perform, comply with or satisfy, before or at the Closing.
12.3 Buyer's Corporate Approval. The Board of Directors of Buyer shall
have duly authorized and approved the execution and delivery of this Agreement
and all corporate action necessary or proper to fulfill the Buyer's obligations
to be performed under this Agreement on or before the Closing Date.
12.4 Buyer's Stock Value. At the Closing, Buyer shall deliver to Seller a
stock certificate(s) in the name of the seller, or its assigns, representing
500,000 shares of MMMC common stock, and shall deliver to Seller a stock warrant
agreement(s) in the name of the Seller, or its assigns, representing 900,000
shares of MMMC common stock exercisable at $0.70 per share.
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13. The Closing. The transfer of the Assets by Seller to Buyer shall take
place on or before September 30, 2007 (the "Closing Date") at MTI-II Partners,
L.P 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 or at
such other time and place as the parties may agree to in writing ("Closing
Date").
13.1 Seller's Obligations at Closing. At the Closing, Seller shall deliver
or cause to be delivered to Buyer:
(a) a Xxxx of Sale, in the form attached hereto as Exhibit "D"
pertaining to all the Assets being transferred pursuant to the terms of this
Agreement;
(b) a certificate executed by Seller certifying that all of Seller's
representations and warranties under this Agreement are true as of the Closing
Date, as though each of those representations and warranties had been made on
that date; and
(c) tax clearances issued by all taxing authorities, if applicable.
Simultaneously, with the consummation of the transfer, Seller will put
Buyer into full possession and enjoyment of the Assets to be conveyed and
transferred pursuant to this Agreement.
Seller, at any time before the Closing Date, will execute, acknowledge and
deliver any further deeds, assignments, conveyances, and other assurances,
documents and instruments of transfer, reasonably requested by Buyer, and will
take any other action consistent with the terms of this Agreement that may
reasonably be requested by Buyer for the purpose of assigning, transferring,
granting, conveying and confirming to Buyer, or reducing to possession, any or
all Assets to be conveyed and transferred under this Agreement. If requested by
Buyer, Seller further agrees to prosecute or otherwise enforce in its own name,
for the benefit of Buyer, any claims, rights or benefits that are transferred to
Buyer under this Agreement and that require prosecution or enforcement in
Seller's name.
13.2 Buyer's Obligations at Closing. At the Closing, Buyer shall deliver
or cause to be delivered to Seller:
(a) certificates representing the Shares as specified in paragraph
2; and
(b) warrant agreement(s) representing the Shares as specified in
paragraph 2; and
(c) certified resolutions of Buyer's board of directors authorizing
the execution and performance of this Agreement and all actions to be taken by
Buyer under this Agreement.
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14. Publicity. All notices to third parties and all other publicity
concerning the transactions contemplated by this Agreement shall be jointly
planned and coordinated by and between Buyer and Seller. No party shall act
unilaterally in this regard without the prior written approval of the other,
however, this approval shall not be unreasonably withheld. This clause
specifically excludes any required regulatory filings with the SEC by MMMC
15. Expenses. Each party shall pay all costs and expenses incurred or to
be incurred by it in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated by this Agreement, with the exception
of all expenses incurred in transferring the Assets, removing liens, and
obtaining all necessary government approvals for this transfer and sale, which
expenses shall be borne solely by Seller.
16. Miscellaneous.
16.1 Governing Law. This Agreement shall be deemed to be made in, and in
all respects shall be interpreted, construed and governed by and in accordance
with the laws of the state of New Jersey, United States of America.
16.2 Venue and Arbitration. Any dispute between Buyer and Seller involving
the interpretation of this Agreement or the obligations of a party to it shall
be determined by binding arbitration in accordance with the arbitration rules of
the American Arbitration Association in the County of Xxxxxx, State of Georgia,
United States of America. The arbitrator shall have the authority to permit
discovery upon request of a party. The cost of the arbitration shall be shared
equally.
16.3 Notices. All notices, demands, requests, consents, approvals or other
communications ("Notices") given hereunder shall be in writing, and shall be
given by personal delivery or by express mail, Federal Express, DHL or other
similar form of recognized airborne/overnight delivery service (which forms of
Notice shall be deemed to have been given upon delivery), or by telex or
facsimile transmission (which forms of Notice shall be deemed delivered upon
confirmed transmission), or by mailing in the mail by registered or certified
mail, return receipt requested, postage prepaid (which forms of Notice shall be
deemed to have been given upon the tenth (10th) business day following the date
mailed). Notices shall be addressed as follows:
If to Seller, addressed to: MTI-II Partners, L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Buyer, addressed to: Modern Medical Modalities Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
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or to such other address as to which any party hereto may have notified the
others in writing.
16.4 Section Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
16.5 Counterparts and Facsimiles. For the convenience of the parties to
this Agreement, this document may be executed by facsimile signatures and in
counterparts which shall together constitute the agreement of the parties as one
and the same instrument.
16.6 Severability. If any provision of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and application of such provision to
the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law.
16.7 Entire Agreement; Modification. This Agreement, including the
Exhibits hereto, embodies the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings related thereto. The parties hereto
recognize and agree that no representations or warranties have been made except
as set forth in this Agreement and the Exhibits hereto. This Agreement may be
modified only by a written instrument signed by each of the parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement for Purchase and Sale of Assets to be executed as of the date first
above written.
"BUYER"
Modern Medical Modalities, a New Jersey corporation
By:_________________________________
"SELLER"
MTI-II Partners L.P., a Georgia limited partnership
By: ____________________________________
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