AGREEMENT OF TRANSFER
EXHIBIT
2.1
AGREEMENT
OF TRANSFER, dated as of July 5, 2010 (the “Agreement”), by and between Medical
Design Studios, Inc., a Nevada corporation (“Medical Design”), and a
newly-formed Delaware corporation controlled by Xxxxxx X. Xxxxx
(“Xxxxx”).
WITNESSETH:
WHEREAS,
Medical Design desires to transfer to Xxxxx certain operating assets owned by
Medical Design, subject to related liabilities, under the terms and conditions
set forth herein, including, without limitation, the assumption of certain
liabilities as provided herein;
WHEREAS,
Xxxxx desires to obtain from Medical Design said operating assets, subject to
related liabilities, under the terms and conditions set forth herein and to
assume said liabilities as provided herein; and
WHEREAS,
the Board of Directors and holders of a majority of the outstanding shares of
common stock of Medical Design believe that the transfer of the Assets (as
defined below) to Xxxxx is in the best interests of Medical Design and its
stockholders and that the cash purchase price and other valuable consideration
being delivered hereunder by Xxxxx represents the fair value of the Assets being
transferred to Xxxxx;
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
herein contained and subject to the terms and conditions hereinafter set forth,
it is hereby agreed as follows:
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1.
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Conveyance of Assets
to Xxxxx.
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1.1 At
the Closing (as defined in Section 6.1 hereof), in exchange for payment of the
cash purchase price of $100.00 by Xxxxx and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, subject to Sections 1.3 and 1.4 hereof, Medical Design shall
transfer or cause to be transferred to Xxxxx by executing and delivering the
appropriate documents required to effect such transfer, all of the properties,
assets, business and goodwill of every nature and disposition, tangible and
intangible, whether real, personal or mixed and wherever located, of Medical
Design, relating to the operations of the digital medical illustration and
animation business (the “Business”) owned by Medical Design immediately prior to
the Closing, including, without limitation (except as otherwise herein agreed),
the following (the “Assets”):
(a) All
of the business and goodwill relating to the operations of the
Business;
(b) All
of the machinery, equipment, furniture, fixtures and other personal property and
all of the materials and supplies, owned by Medical Design and used in the
operations of the Business;
(c) All
trademarks, service marks, tradenames, product names, process names, patent
rights and copyrights and applications for and licenses and rights and interests
to or with respect to patents, trademarks, service marks, tradenames, product
names, process names and the goodwill associated therewith and copyrights, in
each case owned or held by Medical Design or immediately prior to the Closing
relating predominantly to the operations of the Business;
(d) All
real property, including leases thereof or other interests therein or rights to
use thereof, owned or held by Medical Design immediately prior to the Closing
relating to the operations of the Business; and
(e) All
contracts and contract rights held by Medical Design at the Closing relating to
the operations of the Business.
1.2 In
case of any dispute arising before or after the Closing as to the identity or
existence of Assets relating to the operations of the Business or the existence
of such a relationship or the transferability thereof, the determination of
Medical Design, if made before the Closing, or the joint determination of
Medical Design and Xxxxx, if made after the Closing, shall be final, conclusive
and binding upon Medical Design, Xxxxx and all others claiming rights in or with
respect to the Assets by, through or under Medical Design or Xxxxx.
1.3 Anything
in this Section 1 to the contrary notwithstanding, Medical Design shall retain
and not transfer to Xxxxx at the Closing (a) any cash held in escrow for Medical
Design by its counsel, and (b) any books, records or other data and documents of
every nature held by Medical Design at the Closing; provided, however, that Xxxxx
may retain copies of those documents relating exclusively to the operations of
the Business.
1.4 Nothing
herein shall be deemed to require the transfer of any of the Assets (tangible or
intangible) which by their terms or operation of law cannot be assigned or
transferred; provided, however, that Medical
Design and Xxxxx shall cooperate to obtain any necessary consents or approvals
for the transfer of all Assets. In the event that the parties are
unsuccessful in obtaining necessary consents or approvals for the transfer of
any of the Assets prior to the Closing, Medical Design shall (at the expense of
Xxxxx) hold such Assets and take such action as may be reasonably requested by
Xxxxx in order to place Xxxxx, to the extent reasonably possible and consistent
with the appropriate documents relating to such Assets, in the same position as
would have existed had such consent or approval been obtained prior to the
Closing and such part of the Assets transferred to Xxxxx as contemplated
hereby. As and when such Assets become transferable, Medical Design
will transfer such Assets forthwith to Xxxxx and the assignment to Xxxxx by
Medical Design of any such Assets shall be deemed effective at the time such
consent or approval is obtained.
2. Assumption of Liabilities by
Xxxxx.
2.1 At
the Closing, contemporaneously with the transfer of Assets and payment of the
cash purchase price as specified in Section 1.1 above, Xxxxx shall assume and
agree to pay, perform or discharge when due (except while contested in good
faith by appropriate proceedings) (a) all of the liabilities and debts of
Medical Design thereof which relate to or arise out of the Assets or the
operations of the Business, and (b) all known and unknown contingent or
unliquidated liabilities of and claims against Medical Design of any kind and
nature to the extent they relate to or arise out of the Assets or the operations
of the Business.
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2.2 In
case of any dispute arising before or after the Closing as to the identity or
existence of liabilities, debts, obligations or claims to be assumed by Xxxxx or
as to which Xxxxx is to indemnify Medical Design, the determination of Medical
Design, if made before the Closing, or the joint determination of Medical Design
and Xxxxx, if made after the Closing, shall be final, conclusive and binding
upon Medical Design, Xxxxx and all others claiming rights in or with respect to
such assumptions and indemnities by, through, or under Medical Design or
Xxxxx.
3. Indemnification Upon
Transfer.
Without
in any way limiting the provisions of Section 2 of this Agreement, at the
Closing, Xxxxx shall, contemporaneously with the transfer of Assets, indemnify
and hold harmless Medical Design, its successors and its affiliates from and
against any and all losses, liabilities, claims, damages, costs and expenses,
mature or unmature, absolute or contingent, liquidated or unliquidated, known or
unknown (including, without limitation, reasonable attorneys’ fees and any and
all expenses whatsoever reasonably incurred in investigating, preparing or
defending against any litigation commenced or threatened, or any claim
whatsoever) of any kind and nature which (a) relate to claims which arise
out of the operations of the Business, both before and after the Closing, (b)
are to be assumed by Xxxxx pursuant to this Agreement, or (c) involve any breach
of the representation made by Xxxxx in Section 4.1 below insofar as the breach
relates to the operations of the Business.
4. SEC
Matters.
4.1 So
far as Xxxxx is aware, all documents filed by Medical Design pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), since
July 16, 2007 (i) were prepared in accordance with the requirements of the
Exchange Act and the rules and regulations thereunder, (ii) did not at the time
they were filed contain any untrue statement of a material fact, and (iii) did
not at the time they were filed omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. From the date as of which information is given in the most
recent report filed by Medical Design under the Exchange Act to the date of this
Agreement, except as contemplated or described in such report, Xxxxx has no
actual knowledge that there has been any material adverse change in, or any
adverse development which materially affects, the business, results of
operations or financial condition of Medical Design.
4.2 Xxxxx
shall assist Medical Design with the preparation and timely filing of the
quarterly reports on Form 10-Q for the quarter ended March 31, 2010 and the
quarter ending June 30, 2010.
5. Condition of Goods
Transferred; Disclaimers.
All goods
(as such term is defined in the Uniform Commercial Code) to be conveyed pursuant
to this Agreement at the Closing are expressly agreed to be conveyed “As Is” and
“With All Faults.” All Assets to be transferred by Medical Design to
Xxxxx pursuant to the provisions of this Agreement shall be transferred to Xxxxx
as is, where is, in the condition thereof and subject to the state of title
thereto, the rights of any parties in possession, and the rights of ownership of
others therein, and are subject to all applicable laws, rules, regulations,
ordinances, licenses, permits, franchises, judgments, orders, decrees and other
governmental actions, whether now in effect or hereafter taken, all without
representations or warranties of any kind by Medical Design or any person acting
or purporting to act on its behalf. Medical Design makes no
warranty or representation, express or implied, as to the title, design,
condition, value, operation, workmanship, merchantability or suitability for a
particular purpose of the Assets or any part thereof, or any other warranty or
representation, express or implied, of any kind whatsoever with respect to the
Assets or any part thereof.
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6. Closing
Procedures.
6.1 The
sale, transfer, assignment and delivery by Medical Design to Xxxxx of the Assets
referred to in Section 1 hereof, the assumption by Xxxxx of the liabilities of
Medical Design referred to in Section 2 hereof, and the indemnification referred
to in Section 3 hereof shall take place at such time and place on July 5, 2010,
or on such earlier date, as may be agreed to by Medical Design and Xxxxx (such
date being herein defined as the “Closing”).
6.2 At
the Closing, (a) Medical Design and Xxxxx shall execute and deliver an omnibus
xxxx of sale and assignment and assumption agreement (the “Xxxx of Sale and
Instrument of Assignment and Assumption”) effecting the transfer by Medical
Design of the Assets to be transferred to Xxxxx pursuant to Section 1 hereof and
the assumption by Xxxxx of liabilities pursuant to Section 2 hereof, which Xxxx
of Sale and Instrument of Assignment and Assumption will include an
indemnification agreement by Xxxxx pursuant to Section 3 hereof,
(b) Medical Design shall execute and deliver to Xxxxx xxxxx effecting the
transfer of the fee properties included in the Assets, (c) subject to
Section 1.4 hereof, Medical Design and Xxxxx shall execute and deliver
assignments and assumptions, respectively, of the real property leases included
in the Assets to be transferred to Xxxxx and (d) Xxxxx shall pay the cash
purchase price. Medical Design and Xxxxx hereby agree that, to the
extent that the Xxxx of Sale and Instrument of Assignment and Assumption and any
other documents referred to herein which are to be delivered by Medical Design
or Xxxxx at the Closing are not sufficient for the purposes of effectuating the
transactions contemplated by this Agreement, Medical Design and Xxxxx (and their
respective affiliates and successors) shall, after the Closing, make, execute,
acknowledge and deliver such other and further instruments or documents as may
be reasonably requested by either party for that purpose.
7. Conditions Precedent to
Closing.
The
obligations of Medical Design to transfer the Assets and Xxxxx to pay the cash
purchase price pursuant to Section 1 hereof are subject to, and shall be
conditioned upon, the fulfillment (or waiver by Medical Design or Xxxxx, as the
case may be) at or before the Closing of each of the following
conditions:
(a) Approvals. All
consents, approvals, authorizations, permits and orders with respect to the
transactions contemplated by this Agreement which, in the opinion of Medical
Design, may be required from any board of directors, shareholder, person, entity
or court or governmental agency, authority or instrumentality, federal, state or
local, having or asserting rights against or jurisdiction over any party hereto,
the Assets or such transactions shall have been obtained and be valid and in
full force and effect, unless the failure to obtain any such consent, approval,
authorization, permit or order would not in the opinion of Medical Design have a
material adverse effect on consummation of such transaction or on the business
or financial condition, after the transfer of Assets pursuant to Section 1
hereof, of Xxxxx.
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(b) No
Litigation. No action, suit, investigation or other proceeding
shall be threatened or pending before any arbitrator, court or governmental
agency which, in the opinion of Medical Design, presents a substantial risk of
the restraint or prohibition of any of the transactions contemplated by this
Agreement, or the recovery of material damages or other relief in connection
with the transaction contemplated by this Agreement.
(c) Assumption of Liabilities
and Indemnification. The assumption or indemnification by
Xxxxx of the liabilities of Medical Design referred to in Sections 2 and 3
hereof shall occur simultaneously with the transfer of Assets.
(d) Resignations. The
executed resignations of Xxxxxx X. Xxxxx and Xxxxxxx Xxxxx as a director and
officer of Medical Design shall be delivered at the Closing and take effect
immediately following the filing of the quarterly reports referenced in Section
4.2 above.
(e) Final
Accounting. Xxxxxx X. Xxxxx shall have provided to Medical
Design all financial statement spreadsheets that support balance sheet and
income statement accounts up to and including the date of Closing.
(f)
Proceedings. All
corporate and other proceedings taken or to be taken in connection with the
consummation of the transactions contemplated hereby (including with respect to
this Agreement) and all documents incident thereto shall be satisfactory in
substance and form to Medical Design.
8. Termination.
This
Agreement may be terminated at any time prior to the Closing referred to in
Section 6 hereof by Medical Design. In the event of such termination,
no party shall have any liability of any kind to any other party.
9. Transfer
Taxes.
Unless
otherwise agreed, sales and use taxes, if any, and real property transfer, gains
or documentary stamp taxes or recording fees imposed on the sale or transfer of
the Assets by Medical Design in connection with the transfer thereof to Xxxxx
pursuant to this Agreement, or on the use thereof by Xxxxx after such sale or
transfer, shall be paid by Xxxxx.
10. Survival of
Covenants.
Unless
otherwise agreed, the covenants of the parties contained in this Agreement shall
survive the Closing and any investigation by any party.
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11. Cooperation.
In order
to effect the transfer of assets and assumption of liabilities contemplated by
Sections 1 and 2 of this Agreement in an orderly manner, Xxxxx and Medical
Design (and their respective affiliates and successors) shall cooperate in,
make, execute, acknowledge and deliver such other instruments and documents and
take all such other actions as may reasonably be requested solely to effectuate
the purposes of this Agreement and resolve any matters directly relating thereto
or which are a consequence thereof not specifically dealt with herein,
including, without limitation, respectively making available from time to time
and at all reasonable times from and after the Closing (a) their respective
internal financial, legal and tax personnel for consultation, advice and
service, if any, and (b) full and complete access to (and permitting
duplication thereof) books, records, contracts, documents, instruments, data and
other information, but only insofar as same is necessary or useful in compliance
with legal, tax or insurance requirements or is directly related to the
transactions contemplated by this Agreement or the consequences thereof, in
their respective possession or control or (to the extent possible) in the
possession or control of persons or firms which have rendered services to or
otherwise done business with either Medical Design or Xxxxx (or any of their
respective subsidiaries); provided, however, that neither
party need make any person available to the other to the extent that doing so
would unreasonably interfere with the performance by the person of services for
his primary employer or would, in the sole judgment of Medical Design or its
successors, not be in the best interest of Medical Design or its
successors. In addition to the foregoing, Medical Design and Xxxxx
each agrees to use its best efforts to make available to the other, upon another
party’s written request, their respective officers, directors, employees and
agents as witnesses to the extent that the same may reasonably be required in
connection with any legal, administrative or other proceedings arising out of
the transactions contemplated by this Agreement or arising out of acts,
transactions or occurrences relating to the businesses of Medical Design prior
to the Closing in which Medical Design or Xxxxx, or their respective
subsidiaries or successors, as the case may be, may, from time to time be
involved; provided, however, that Medical
Design and its successors shall have no such obligation if in the sole judgment
of Medical Design or its successors making such person available would not be in
the best interest of Medical Design or its successors.
12. Release. From
and after the Closing, Xxxxx (including, for this purpose, Xxxxxx X. Xxxxx and
Xxxxxxx Xxxxx as controlling persons) hereby and forever releases, discharges
and waives all claims, demands, debts, losses, obligations, liabilities, costs,
expenses, rights of action and causes of action, of every nature, character and
description, at law or in equity, whether known or unknown, fixed or contingent,
legal or equitable, arising under state, federal or any other law, which Xxxxx
now has or has ever had against Medical Design or against any past, present or
future agents, representatives, stockholders, directors, employees, officers,
affiliates, parent companies, subsidiaries, business associates, successors,
assigns, heirs, administrators, executors or attorneys, relating to or arising
out of any matter, cause or event occurring contemporaneously with or prior to
the Closing, including, without limitation, any claim relating to any matter
directly or indirectly arising out of the operations of Medical Design, except
for any claims Xxxxx may have under this Agreement.
13. Miscellaneous.
13.1 This
Agreement, together with the Xxxx of Sale and Instrument of Assignment and
Assumption, all agreements referred to herein and all other written agreements
which may be entered into between the parties in connection herewith and
therewith and the transactions contemplated hereby and all other documents and
instruments delivered in connection herewith and therewith and the transactions
contemplated hereby and thereby, set forth the full and complete understanding
of the parties hereto with respect to the transactions contemplated hereby and
shall not be amended other than by a written document executed by the parties
hereto.
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13.2 This
Agreement shall inure to the benefit of and be binding upon and enforceable
against the parties hereto and their respective successors and assigns, and no
other person shall have any right or obligation hereunder.
13.3 Any
term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.
13.4 This
Agreement may not be modified or amended except by an instrument or instruments
in writing signed by the party against whom enforcement of any such modification
or amendment is sought. Either party hereto may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Agreement on the part of such other party hereto to be performed or complied
with. The waiver by any party hereto of a breach of any term or
provision of this Agreement shall not be construed as a waiver of any subsequent
breach.
13.5 This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to the choice of law principles
thereof.
13.6 This
Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the
same instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement of Transfer to be
duly executed and delivered as of the date first above written.
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By:
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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President
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By:
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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