PURCHASE AGREEMENT
EXHIBIT
10.1
Execution
Copy
AGREEMENT
made as
of the 11th day of February, 2008 by and between PREMIER
P.E.T. IMAGING INTERNATIONAL, INC., a
Delaware corporation with offices at 0000 X.X. Xxxx Xxxxx Xxxx., Xxxxx 000,
Xxxx
Xxxxx, Xxxxxxx 00000 (“Seller”)
and
SAGEMARK
ROCKVILLE, LLC,
a New
York limited liability company with offices at 000 Xxxxx Xxxxxx, Xxxxxxxx,
XX
00000 (the “Rockville
Buyer”),
and
SAGEMARK
FOREST, LLC,
a New
York limited liability company with offices at 000 Xxxxx Xxxxxx, Xxxxxxxx,
XX
00000 (the “Queens
Buyer”)
(the
Rockville Buyer and the Queens Buyer hereinafter collectively referred to as
the
“Buyer”).
WITNESSETH:
WHEREAS,
Seller
is the owner of a 51% membership interest (the “Rockville
Centre Equity Interest”)
in
Premier P.E.T. of Long Island, LLC (the “Rockville
Centre LLC”)
and an
80% membership interest (the “Queens
Equity Interest”)
in
P.E.T. Management of Queens, LLC (the “Queens
LLC”);
and
WHEREAS,
Buyer
wishes to purchase from Seller, and Seller is willing to sell to Buyer, its
aforementioned Rockville Centre Equity Interest and Queens Equity Interest
(collectively, the “Equity
Interests”),
all on
and subject to the terms and conditions of this Agreement.
NOW,
THEREFORE,
in
consideration of the mutual covenants, promises, and agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties hereto agree as follows:
1. Sale
of the Equity Interests.
1.1.
Sale
and Purchase of the Equity Interests.
Upon and
subject to the terms and conditions hereinafter set forth in this Agreement,
Seller hereby agrees to sell, assign and transfer to the Rockville Buyer and
the
Queens Buyer, as applicable, on the Closing Date (hereinafter defined), and
the
Rockville Buyer and the Queens Buyer, as applicable, hereby agree to purchase
from Seller on the Closing Date, the Rockville Centre Equity Interest and the
Queens Equity Interest, for and in consideration of the purchase prices set
forth in Sections 1.2 and 1.3 hereof, respectively, and subject to the liens
and
security interests of the Equipment Lenders therein.
1.2.
Purchase
Price for the Rockville Centre Equity Interest.
As and
for the purchase price for the Rockville Centre Equity Interest (the
“Rockville
Centre Purchase Price”),
the
Rockville Buyer hereby agrees to pay to Seller the following:
(a)
Fifty
Thousand Dollars ($50,000) upon the execution of this Agreement (the
“Initial
Cash Payment”),
payable by check or by wire transfer to Seller’s account in accordance with wire
transfer instructions to be provided to the Rockville Buyer on or prior to
the
date hereof.
(b)
An
amount
equal to Two Hundred Thousand Dollars ($200,000) less Seller’s legal fees
referred to in Section 9.1(c) hereof (the “Rockville
Centre Purchase Price Cash Balance”),
payable on or before the Outside Date (hereinafter defined) by wire transfer
to
Seller’s account in accordance with wire transfer instructions to be provided by
Seller to the Rockville Buyer prior to the Outside Date; and
(c)
Seventy-Five
Thousand Dollars ($75,000) on or before March 1, 2008, by wire transfer to
Seller’s account in accordance with wire transfer instructions to be provided by
Seller to the Rockville Buyer prior to such date.
1.3.
Purchase
Price for the Queens Equity Interest.
As and
for the purchase price for the Queens Equity Interest (the “Queens
Purchase Price”),
the
Queens Buyer hereby agrees to pay to Seller the following:
(a)
An
amount
equal to twenty percent (20%) of the gross amount of all distributions received
by the Queens Buyer from the Queens LLC in each month during the period
commencing on the Closing Date and ending on the date of closing of any sale
of
the Queens LLC (whether by sale of all of the outstanding membership interests
or assets of the Queens LLC), such amounts to be paid to Seller within ten
(10)
days after the Queens Buyer’s receipt thereof. The Queens Buyer and the Queens
LLC will notify Seller of all such distributions made to its members during
such
period and the Queens Buyer will provide Seller with evidence of the payment
therefor by the Queens LLC at each time that it remits payment of such amounts
to Seller hereunder. Seller shall have the right, at any time during such
period, to inspect the books and records of the Queens LLC relating to such
distributions, such inspection to be conducted at Seller’s expense (except that
if such inspection reveals that such distributions were received by the Queens
Buyer and the aforementioned amounts that should have been paid to Seller when
due were not paid, the Queens Buyer shall reimburse Seller for such inspection
costs); and
(b)
all
amounts in excess of $300,000 of management fees payable to the Queens LLC
as of
the Closing Date pursuant to turnkey license and services agreements between
the
Queens LLC and the professional corporations which are parties thereto (the
“Excess
Fees”).
Such
Excess Fees shall be paid to Seller, when, as and if such Excess Fees are
received by the Queens Buyer; and
(c)
an
amount
equal to Seven Hundred Fifty Thousand Dollars ($750,000), less any amounts
received by Seller pursuant to subsection (a) above, from and subject to the
receipt of proceeds by either the Queens LLC and/or the members thereof from
any
sale of the assets of the Queens LLC or the sale of the outstanding membership
interests owned by the members of the Queens LLC. Such amount will be paid
to
Seller within five (5) days after the closing of any such sale.
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1.4.
Transfer
Taxes.
To the
extent that there are any transfer or similar taxes or charges payable with
respect to the transfer by Seller of the Equity Interests to the Rockville
Buyer
and the Queens Buyer, as applicable, such payment will be the responsibility
of
the Rockville Buyer and the Queens Buyer, as applicable, and will be paid at
the
Closing (hereinafter defined), or otherwise when due.
1.5.
Membership
Certificates.
On the
Closing Date, Seller will deliver the original membership certificates
evidencing Seller’s ownership of the Equity Interests (the “Certificates”)
to the
Rockville Buyer and the Queens Buyer, as applicable.
1.6.
Consents.
The
Rockville Buyer and the Queens Buyer, as applicable, acknowledge that each
of
them will be required to deliver to Seller on or before the Outside Date
consents to the transactions contemplated by this Agreement from each of the
members of the Rockville Centre LLC and the Queens LLC, as applicable (the
“Member
Consents”).
The
Rockville Buyer and the Queens Buyer, as applicable, will use their best efforts
to obtain, prior to the Outside Date, consents to the release of Sagemark under
the Lease Agreements referred to in Section 2.4 hereof, as applicable (the
“Landlord
Consents”).
In the
event that either or both of the Landlord Consents are not obtained by the
Outside Date, as aforesaid, the Rockville Buyer and the Queens Buyer, as
applicable, will indemnify and hold Sagemark harmless from any liability, loss,
obligation, cost or expense incurred by Sagemark under either of such Lease
Agreements from and after the Closing Date. Sagemark will, under any such
circumstances, retain the right to receive the return of any security deposit
made under such Lease Agreements when, as and if such deposits are returnable
in
accordance with the terms of such agreements.
2. Assumption
of Indebtedness and Obligations.
2.1.
Cancellation
of Rockville Centre Indebtedness.
Seller
will deliver to the Rockville Buyer on and subject to the Closing Date, an
instrument in form and substance reasonably satisfactory to the Rockville Buyer
(the “Sagemark
RC Debt Release Instrument”),
signed
by Seller and The Sagemark Companies Ltd. (“Sagemark”),
canceling all indebtedness of the Rockville Centre LLC to Sagemark and
Seller.
2.2.
Cancellation
of Queens Center Indebtedness.
Seller
will deliver to the Queens Buyer on and subject to the Closing Date, an
instrument in form and substance reasonably satisfactory to the Queens Buyer
(the “Sagemark
Queens Debt Release Instrument”),
signed
by Seller and Sagemark, canceling all indebtedness of the Queens LLC to Sagemark
and Seller.
2.3.
Equipment
Debt Assumption by Buyer.
On and
subject to the Closing Date, the Rockville Buyer and the Queens Buyer, as
applicable, will obtain and deliver to Seller from those entities which leased
the PET diagnostic imaging equipment to the Rockville Centre LLC and the Queens
LLC and/or Sagemark and/or affiliates of Seller (collectively, the “Equipment
Lenders”),
on or
before the Outside Date (a) assignment and assumption agreements, or similar
documents, signed by both the Rockville Buyer and the Queens Buyer, as
applicable, and the Equipment Lenders (and Seller and/or Sagemark and/or any
third party, as guarantors thereunder, if necessary) (the “Assignment
and Assumption Agreements”),
pursuant to which all of the outstanding indebtedness of Seller, Sagemark and
all affiliates thereof to the Equipment Lenders (collectively, the “Equipment
Debt”)
will be
assigned to and assumed by the Rockville Buyer and the Queens Buyer, as
applicable and/or the Rockville Centre LLC and/or the Queens LLC and (b)
consents to the transfer of the Equity Interests to the Rockville Buyer and
the
Queens Buyer, as applicable, subject to the liens of such lenders therein.
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2.4.
Post-Closing
Responsibility for LLC Indebtedness and Obligations.
Buyer
acknowledges that, in addition to the Equipment Debt, Sagemark is the lessee
under Lease Agreements with independent landlords pursuant to which the
Rockville PET Center and the Queens PET Center premises are leased (such Lease
obligations, together with the Equipment Debt, are collectively referred to
herein as the “LLC
Debt Obligations”).
From
and after the Closing Date, the Rockville Buyer will be responsible for such
obligations with respect to the Rockville Centre LLC and the Queens Buyer will
be responsible for such obligations with respect to the Queens LLC.
2.5.
Restrictive
Covenant Obligations.
By its
execution hereof, Sagemark hereby agrees to be bound by the applicable
non-compete provisions of the Operating Agreements of the Rockville Centre
LLC
and the Queens LLC.
3. The
Closing.
3.1.
Closing.
The
closing of the transactions contemplated by this Agreement (the “Closing”)
shall
take place at the offices of Seller on February 11, 2008 (the “Closing
Date”),
or on
such later date or at such other location on which Seller and Buyer may mutually
agree in writing. In the event that the Closing does not occur on February
11,
2008, Seller or Buyer may terminate this Agreement, upon notice to the
other.
3.2.
Closing
Conditions.
Seller’s
and Buyer’s obligations to consummate the transactions contemplated by this
Agreement on the Closing Date are subject to and conditioned upon the following:
(a)
Delivery
to Buyer, in form and substance satisfactory to Buyer, of all of the documents
and instruments referred to in Section 6 hereof; and
(b)
delivery
to Seller, in form and substance satisfactory to Seller, of all of the documents
and instruments referred to in Section 7 hereof; and
(c)
receipt
by Seller of the Initial Cash Payment in accordance with the provisions of
Section 1.2(a) hereof; and
(d)
the
accuracy and completeness, on the Closing Date, of all of Buyer’s and Seller’s
representations and warranties set forth in Sections 4 and 5
hereof.
4. Representations
and Warranties of Seller.
Seller
represents and warrants to Buyer, as follows:
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4.1.
Organization
and Standing.
Seller
is a corporation, validly existing, and in good standing under the laws of
the
State of Delaware, with full corporate power and authority to own, lease and
operate its properties and to carry on its business as presently conducted.
4.2.
Authority;
Binding Obligation.
Seller
has all requisite power and authority necessary for, and has taken all required
action with respect to, the authorization, execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
and this Agreement, when executed and delivered by Seller, will constitute
a
valid and legally binding obligation of Seller, enforceable in accordance with
its terms, except (i) as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws affecting generally the enforcement
of
creditors’ rights and by the effect of rules governing the availability of
equitable remedies, and (ii) as rights to indemnity or contribution may be
limited under federal or state securities laws or by principles of public policy
thereunder.
4.3. No
Conflict.
Seller
has the right, power, legal capacity and authority to enter into and perform
its
obligations under this Agreement. Neither the authorization, execution, delivery
and performance of this Agreement nor the consummation of the transactions
contemplated hereby will violate any provision of the Certificate of
Incorporation of Seller or violate or be in conflict with or constitute, with
or
without the passage of time or the giving of notice, either a default under
any
judgment, order, writ, decree, instrument, document or other agreement to which
Seller is a party or by which it is bound, or an event which will create rights
of acceleration, termination, cancellation, default or loss of rights
thereunder, or result in the creation of any lien, claim, charge or encumbrance
upon the Equity Interests, except as to the lien and security interest created
in favor of Seller pursuant to Section 2.4 hereof.
4.4.
Ownership
of the Equity Interests.
The
Rockville Centre Equity Interest represents a fifty-one percent (51%) equity
interest in the Rockville Centre LLC and the Queens Equity Interest represents
an eighty percent (80%) equity interest in the Queens LLC. Seller is the owner
of record and beneficial owner of the Equity Interests and will sell and
transfer the Equity Interests to the Rockville Buyer and the Queens Buyer,
as
applicable, on and subject to the Closing Date, subject to receipt of the
Rockville Centre Purchase Price Cash Balance as provided herein, free and clear
of all liens, claims or encumbrances of any kind (except for the existing lien
and security interest of the Equipment Lenders therein).
4.5.
No
Litigation.
Seller
is not subject to any injunction, writ, judgment, order or decree of any court
or governmental or other body which in any way relates to this Agreement or
the
transactions contemplated hereby. Seller is not a party or otherwise subject
to
any action, suit or proceeding in any way relating to this Agreement or the
transactions contemplated hereby nor, to the best knowledge of Seller, is any
such action, suit or proceeding threatened against Seller. There is no action,
suit or proceeding by Seller relating in any way to this Agreement or the
transactions contemplated hereby currently pending or which Seller intends
to
initiate.
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4.6.
Broker’s
or Finder’s Fees.
Seller
has not engaged or dealt with any broker, finder, or other person or entity
who
is entitled to any brokerage fee, commission or other compensation as a result
of the execution of this Agreement and/or the consummation of the transactions
contemplated hereby.
4.7.
Effective
Operating Agreements.
To the
best of Seller’s knowledge, the Operating Agreements of the Rockville Centre LLC
and the Queens LLC, as amended through the date hereof, are in full force and
effect and Seller is not in default thereunder; nothing contained in this
Agreement shall affect any obligation of Seller under either of such Operating
Agreements that, by the terms thereof, survive the sale of the Equity Interests
hereunder and the termination of Seller’s status as a member of either the
Rockville Centre LLC or the Queens LLC (including the indemnification provisions
thereunder).
4.8. No
Other Representations or Warranties.
Except
as provided in this Section 4, Seller has made no other representation or
warranty to Buyer under or in connection with this Agreement or the transactions
contemplated hereby.
5. Representations
and Warranties of Buyer.
Buyer
represents and warrants to
Seller
as
follows:
5.1.
Organization
and Standing.
The
Rockville Buyer and the Queens Buyer are limited liability companies, duly
organized, validly existing, and in good standing under the laws of the State
of
New York with full power and authority to own, lease, and operate its properties
and to carry on its business as currently conducted.
5.2.
Authority;
Binding Obligation.
Buyer
has all requisite power and authority necessary for, and has taken all required
action with respect to, the authorization, execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
and this Agreement, when executed and delivered by Buyer, will constitute a
valid and legally binding obligation of Buyer, enforceable in accordance with
its terms, except (i) as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws affecting generally the enforcement
of
creditors‘ rights and by the effect of rules governing the availability
of equitable
remedies, and (ii) as rights to indemnity or contribution may be limited under
federal or state securities laws or by principles of public policy
thereunder.
5.3.
No
Conflict.
Buyer
has the right, power, legal capacity and authority to enter into and perform
its
obligations under this Agreement. Neither the authorization, execution, delivery
and performance of this Agreement nor the consummation of any of the
transactions contemplated hereby will violate any provision of the Certificate
of Formation of Buyer or violate or be in conflict with or constitute, with
or
without the passage of time or the giving of notice, either a default under
any
judgment, order, writ, decree, instrument, document or other agreement to which
Buyer is a party or by which it is bound, or an event which will create rights
of acceleration, termination, cancellation, default or loss of rights
thereunder, or result in the creation of any lien, claim, charge or encumbrance
upon the Equity Interests, except as to the lien and security interest in favor
of the Equipment Lenders.
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5.4.
No
Litigation.
Buyer is
not subject to any injunction, writ, judgment, order or decree of any court
or
governmental or other body which in any way relates to this Agreement or the
transactions contemplated hereby. Buyer is not a party or otherwise subject
to
any action, suit, or proceeding in any way relating to this Agreement or the
transactions contemplated hereby nor, to the best knowledge of Buyer, is any
such action, suit, or proceeding threatened against Buyer. There is no action,
suit or proceeding by Buyer relating in any way to this Agreement or the
transactions contemplated hereby currently pending or which Buyer intends to
initiate.
5.5.
Investment
Representation.
The
Equity Interests are being acquired by the Rockville Buyer and the Queens Buyer,
as applicable, for their own account, for investment purposes only, and not
with
a view to the resale or any distribution thereof within the meaning of the
Securities Act of 1933, as amended (the “Securities
Act”).
Buyer
understands and acknowledges that the Equity Interests are not registered under
the Act, and that resale of the Equity Interests can only be made if registered
or made in accordance with applicable exemptions or registration under the
Act
and otherwise in compliance with the Operating Agreements of the Rockville
Centre LLC and the Queens LLC.
5.6.
Broker’s
or Finder’s Fees.
Buyer
has not engaged or dealt with any broker, finder, or other person or entity
who
is entitled to any brokerage fee, commission or other compensation as a result
of the execution of this Agreement and/or the consummation of the transactions
contemplated hereby.
5.7. Compliance
with Obligations.
The
Rockville Buyer will cause the Rockville Centre LLC to timely make all payments
and meet all other obligations under or with respect to the LLC’s Debt
Obligations as to the Rockville Centre LLC and the Queens Buyer will cause
the
Queens LLC to timely make all payments and meet all other obligations under
or
with respect to the LLC’s Debt Obligations as to the Queens LLC so as to assure
that neither Seller, Sagemark, nor any of their affiliated entities will have
any obligation or responsibility thereunder, from and after the Closing
Date.
5.8. No
Other Representations or Warranties.
Except
as provided in this Section 5, Buyer has made no other representation or
warranty to Seller under or in connection with this Agreement or the
transactions contemplated hereby.
6. Documents
to be Delivered by Buyer at the Closing.
Buyer
will deliver the following documents to Seller at the Closing:
6.1.
Payment
by the Rockville Buyer of the Initial Cash Payment pursuant to Section 1.2(a)
hereof; and
6.2. such
other
certificates, documents and instruments required by this Agreement to be
delivered by Buyer, or as Seller or its counsel may otherwise reasonably
request, consistent with the provisions of this Agreement.
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7. Documents
to be Delivered by Seller at the Closing.
Seller
will deliver the following documents to Buyer at the Closing:
7.1.
The
original Certificates to the Rockville Buyer and the Queens Buyer, as
applicable;
7.2.
the
Sagemark RC Debt Release Instrument and the Sagemark Queens Debt Release
Instrument signed by Seller and Sagemark (in form and substance satisfactory
to
the Rockville Buyer and the Queens Buyer, as applicable); and
7.3.
such
other certificates, documents and instruments required by this Agreement to
be
delivered by Seller, or as Buyer or its counsel may otherwise reasonably
request, consistent with the provisions of this Agreement.
8. Termination
of Agreement Prior to Closing.
8.1.
Termination
Right.
This
Agreement may be terminated prior to the Closing Date as follows:
(a)
By
mutual
written consent of the parties hereto; or
(b)
by
Seller
or Buyer, as applicable, in the event that any of the conditions specified
in
Section 3.2 hereof are not satisfied or waived by the Closing Date.
8.2.
Remedies.
The
termination of this Agreement by Buyer or Seller under Section 8.1 above
shall be Buyer’s or Seller’s, as the case may be, sole and exclusive remedy
therefor and thereafter, neither Buyer nor Seller shall have any further rights
or obligations under this Agreement.
9. Termination
of Agreement Post Closing.
9.1.
Conditions
Subsequent.
Notwithstanding any provision of this Agreement to the contrary, if any of
the
following documents or instruments are not obtained and delivered to Seller
(or
waived by Seller) by February 19, 2008 (or any later date approved by Seller)
(the “Outside
Date”),
Seller
may terminate this Agreement, in which case (i) Seller will refund the Initial
Cash Payment to Buyer and (ii) Buyer will return the Certificates to Seller
(with appropriate transfer documentation):
(a)
Payment
to Seller of the Rockville Centre Purchase Price Cash Balance;
(b)
The
Assignment and Assumption Agreements signed by the Rockville Buyer and the
Queens Buyer, as applicable, the Equipment Lenders, and all other parties
thereto (in form and substance satisfactory to Seller); and
(c)
Payment
to Xxxxxx X. Xxxxxxx, Esq. of $35,000 representing Seller’s legal fees incurred
in connection with the transactions contemplated by this Agreement.
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9.2.
Remedies.
The
termination and other rights set forth in Section 9.1 above shall be Buyer’s or
Seller’s, as the case may be, sole and exclusive remedy and, t hereafter,
neither Buyer nor Seller shall have any further rights or obligations under
this
Agreement.
10. Indemnification.
10.1.
Indemnification
by Buyer.
Notwithstanding the Closing of the transactions contemplated by this Agreement,
Buyer shall indemnify and fully defend, save and hold harmless (i) Seller (ii)
any affiliate of Seller (i.e., any person or entity which directly or indirectly
controls, or is under common control with, or is controlled by, Seller,
including, without limitation, Sagemark), and (iii) each of Seller’s and
Sagemark’s directors, officers, shareholders, agents, professionals, and
employees (individually a “Seller
Indemnitee”
or
collectively, the “Seller
Indemnitees”)
if and
to the extent any Seller Indemnitee shall at any time or from time to time
after
the Closing, suffer any damage, liability, loss, cost, expense (including all
reasonable attorneys’ fees and expenses), interest, penalty, imposition,
assessment or fine (collectively, the “Seller
Losses”)
arising
out of or resulting from, or shall pay or become obligated to pay any sum on
account of, any of the Buyer’s Events of Breach. As used herein, “Buyer’s
Events of Breach”
shall be
and mean any one or more of the following:
(a) Any
untruth or inaccuracy in any representation or warranty of Buyer or the breach
of any representation, warranty, covenant or obligation of Buyer contained
in
this Agreement or in any certificate, document or instrument delivered to Seller
hereunder; or
(b) any
failure of Buyer to perform or observe any term, provision, obligation, covenant
or agreement contained in this Agreement; or
(c)
any
obligation or liability of the Rockville Centre LLC and/or the Queens LLC from
and after the Closing Date.
10.2.
Procedures
for Indemnification by Buyer.
If,
with respect to a third party, Buyer’s Events of Breach occurs or is alleged and
a Seller Indemnitee asserts that Buyer has become obligated to such Seller
Indemnitee pursuant to Section 10.1 hereof (a “Seller
Indemnity Claim”),
or if
any suit, action, investigation, claim or proceeding (a “Proceeding”)
is
begun, made or instituted by a third party as a result of which Buyer may become
obligated to a Seller Indemnitee hereunder, such Seller Indemnitee shall give
written notice promptly to Buyer. The failure to so notify Buyer shall not,
however, release Buyer from any obligation or liability it may have to such
Seller Indemnitee under such Section unless such failure materially prejudices
Buyer. Buyer agrees to defend, contest or otherwise protect the Seller
Indemnitee against any Seller Indemnity Claim or Proceeding at Buyer’s sole cost
and expense. The Seller Indemnitee shall have the right, but not the obligation,
to participate at its own expense in the defense thereof by counsel of the
Seller Indemnitee’s choice and shall in any event cooperate with and assist
Buyer to the extent reasonably possible in connection therewith. If Buyer fails
timely to defend, contest or otherwise protect against such Seller Indemnity
Claim or Proceeding, the Seller Indemnitee shall have the right to do so,
including, without limitation, the right to make any compromise or settlement
thereof, and the Seller Indemnitee shall be entitled to recover the entire
cost
thereof from Buyer, including, without limitation, reasonable attorneys’ fees,
disbursements and amounts paid as the result of such Seller Indemnity Claim
or
Proceeding, and Buyer shall be bound by any determination made with respect
to
such Seller Indemnity Claim or Proceeding or any compromise or settlement
effected by the Seller Indemnitee with respect thereto. If Buyer assumes the
defense of any Seller Indemnity Claim or Proceeding, (a) it will be conclusively
established for purposes of this Agreement that the claims made in that Seller
Indemnity Claim or Proceeding are within the scope of and subject to
indemnification hereunder, (b) no compromise or settlement of such claims may
be
effected by Buyer without the Seller Indemnitee’s written consent unless (i)
there is no finding or admission of any violation of federal, state, local
or
municipal or other administrative order, law, ordinance, principal of common
law, regulation, statute or any violation of the rights of any person and no
effect on any other claims that may be made against the Seller Indemnitee and
(ii) the sole relief provided is monetary damages that are paid in full by
Buyer; and (c) the Seller Indemnitee will have no liability with respect to
any
compromise or settlement of such claims effected by Buyer.
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10.3.
Successors
and Assigns.
All of
the rights and obligations of Seller and Buyer pursuant to this Section 10
are
subject to the Closing of the transactions which are the subject of this
Agreement, shall survive the Closing of the transactions contemplated by this
Agreement and shall apply to and bind each and every successor and assign of
Buyer.
11. Public
Announcements.
Buyer
shall not make or disseminate any public filing or announcement concerning
this
Agreement or any of the transactions herein contemplated without Seller’s prior
written consent. Buyer acknowledges that Sagemark is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, and Seller
may
make or disseminate public filings and/or announcements concerning this
Agreement or any of the transactions herein contemplated as may be otherwise
required by applicable law, rule or regulation. Buyer shall keep confidential
and not disclose to any person (other than its attorneys, accountants, and
advisers) or use any non-public information with respect to Seller obtained
by
Buyer in connection herewith, unless and until such information shall be
publicly disclosed or disseminated by Seller.
12. Miscellaneous.
12.1.
Sole
Agreement.
This
Agreement constitutes the sole and entire agreement between the parties hereto
in respect of the transactions contemplated hereby and supersedes all prior
agreements, arrangements, understandings, representations and warranties
relating to the subject matter hereof. No amendment, change in, or modification
to this Agreement shall be binding unless in writing and signed by the party
to
be bound thereby.
12.2.
Notices.
All
notices, consents, demands, requests, and other communications required or
permitted to be given hereunder (the
“Notices”)
shall be
in writing and shall be deemed to have been duly given on the same day if
delivered personally, receipt acknowledged, or by facsimile transmission (with
original to follow by first class mail),or by nationally recognized overnight
courier service for next business day delivery, or three (3) days after mailing
if mailed by certified mail, return receipt requested, addressed to the parties
as follows (or to such other address as a party may designate as to itself
by
Notice to the other parties):
10
(a)
If to
Seller, to it at its address set forth on the first page of this Agreement,
to
the attention of its President, with a copy to:
Xxxxxx
X.
Xxxxxxx, Esq.
c/o
Gusrae Xxxxxx Xxxxx & Xxxxxxx, PLLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
-and-
Xxxxxx
X.
Xxxxxxx, Chief Financial Officer
0000
X.X.
Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
(b)
If to
Buyer, to it at the address set forth on the first page of this
Agreement.
12.3. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York with respect to contracts made and to be fully performed
therein, without regard to the conflicts of laws principles thereof, except
as
to applicable Federal and state securities laws. The parties hereto hereby
agree
that any action, suit or proceeding arising under this Agreement shall be
brought solely in a Federal or state court located in the City, County and
State
of New York, except for any action, suit or proceeding seeking an equitable
remedy hereunder which may be brought in any court of competent jurisdiction.
By
their execution hereof, the parties hereto hereby consent and irrevocably submit
to the in personam
jurisdiction of the Federal and state courts located in the City, County and
State of New York and agree that any process in any action, suit or proceeding
commenced in such courts under this Agreement may be served upon them personally
or by certified or registered mail, return receipt requested, or by Federal
Express or other courier service, with the same force and effect as if
personally served upon them in the City, County and State of New York. The
parties hereto each waive any claim that any such jurisdiction is not a
convenient forum for any such action, suit or proceeding and any defense of
lack
of in personam
jurisdiction with respect thereto.
12.4.
Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Nothing in this
Agreement, whether expressed or implied, is intended to confer any rights or
remedies upon or by reason of this Agreement on any persons other than the
parties and signatories hereto, Sagemark and the Seller Indemnitees, and their
respective successors and permitted assigns, nor is this Agreement, or any
of
the parties’ rights or obligations hereunder, assignable absent the written
consent of the non-assigning parties.
11
12.5.
Counsel.
The
parties to this Agreement hereby acknowledge that they have been represented
by
separate counsel in connection with the negotiations and execution of this
Agreement. Buyer has agreed to pay Seller’s legal fees in connection with the
transactions contemplated by it in accordance with Section 9.1(c)
hereof.
12.6.
Severability.
Any
provision of this Agreement which is determined to be invalid or unenforceable
shall be ineffective to the extent of such invalidity or unenforceability
without affecting in any way the remaining provisions hereof.
12.7.
Headings.
The
Section headings contained herein are for the purpose of convenience only and
are not intended to define or limit the contents of said Sections.
12.8.
Further
Assurances.
The
parties hereto hereby agree that, at any time and from time to time upon the
reasonable request of the other party hereto, they shall do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and
delivered, such further acts, deeds, assignments, transfers, conveyances and
assurances as may be reasonably required to more effectively consummate this
Agreement and the transactions contemplated thereby or to confirm or otherwise
effectuate the provisions of this Agreement, including, without limitation,
any
documents or instruments, if any, that may be required or requested by any
of
the Equipment Lenders with respect to their security interests in the Equity
Interests.
12.9. Expenses.
Except
as provided below in this Section, the parties hereto shall bear all of their
own costs and expenses in connection with the negotiation, preparation,
execution and performance of this Agreement. In any action, suit or proceeding
brought by any party hereto to enforce any provision of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses incurred
by
it in connection with such action, suit or proceeding, including, but not
limited to, all attorneys’ fees and disbursements.
12.10. Confidentiality.
All
information or documentation contained in this Agreement, or otherwise marked
or
confirmed in writing by any of the parties hereto as being “confidential
information”, shall be kept confidential by those parties hereto receiving such
information or documentation and shall not be used by any of such receiving
parties otherwise than as herein contemplated except to the extent that (i)
such
information or documentation is now or hereafter becomes available in the public
domain, (ii) it is or hereafter becomes lawfully obtainable from other sources
or was disclosed prior to the date of this Agreement, (iii) it is necessary
or
appropriate to disclose to the Securities Exchange Commission or any other
regulatory authority having jurisdiction over the parties or their subsidiaries
or as may otherwise be required by law, or (iv) to the extent such duty as
to
confidentiality is waived by any of the parties disclosing such information
or
documentation. In the event of the termination of this Agreement, each party
receiving such information or documentation shall use all reasonable efforts
to
return, upon request of the applicable party hereto, all such confidential
information and documentation (and reproductions thereof) received from such
other parties (and, in the case of reproductions, all such reproductions made
by
the receiving party).
12.11.
Third
Party Beneficiaries.
This
Agreement shall not confer any rights or obligations upon any person or entity
other than the parties hereto and their respective successors and permitted
assigns, except that the Seller Indemnitees shall be deemed to be express third
party beneficiaries of Section 10 of this Agreement.
12.12. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties hereto and delivered
to each of the other parties hereto.
12
IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the day and year first
written.
|
ATTEST:
|
PREMIER
P.E.T. IMAGING INTERNATIONAL, INC.
|
|
/s/
Xxxxx Xxxxxxx
|
By:
/s/ Xxx Xxxxxxxx
|
|
|
Xxx
Xxxxxxxx, President and Chief Executive Officer
|
|
Print
Name
|
|
|
WITNESS:
|
SAGEMARK
ROCKVILLE, LLC
|
|
/s/
Xxxxx Xxxxxxx
|
By:
/s/ Xxxxx Xxxxxxx
|
|
Member
|
|
|
/s/
Xxxxxxxxx Xxxxxx
|
|
WITNESS:
|
SAGEMARK
FOREST, LLC
|
|
/s/
Xxxxx Xxxxxxx
|
By:
/s/ Xxxxx Xxxxxxx
|
|
|
Member
|
|
/s/
Xxxxxxxxx Xxxxxx
|
|
|
|
AGREED
TO AND ACCEPTED THIS 11TH DAY OF FEBRUARY
2008 ONLY AS TO SECTIONS 1.3(a), 1.3(b), 1.3(c) AND 12
HEREOF
|
|
|
|
|
ATTEST:
|
P.E.T.
MANAGEMENT OF QUEENS, LLC
|
|
/s/
Xxxxx Xxxxxxx
|
By:
/s/ Xxx Xxxxxxxx
|
|
Managing
Member
|
|
|
|
|
|
|
AGREED
TO AND ACCEPTED THIS 11TH DAY OF FEBRUARY
2008 ONLY AS TO SECTIONS 2.4 AND 12 HEREOF
|
|
|
|
|
ATTEST:
|
|
|
/s/
Xxxxx Xxxxxxx
|
By:
/s/ Xxx Xxxxxxxx
|
|
|
Xxx
Xxxxxxxx, President and Chief Executive
Officer
|
13
