AGREEMENT FOR PURCHASE AND SALE OF ASSETS
Exhibit
10.2
AGREEMENT
FOR PURCHASE AND SALE OF ASSETS
This Agreement for Purchase and Sale of
Assets (“Agreement”) is made as of November___, 2009 by and among Medical
Equipment Solutions, Inc. (“Seller”), a Georgia corporation with a principal
address of 00000 Xxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx, 00000, and Modern Medical
Modalities Corporation (“Buyer”), a publicly traded New Jersey corporation with
a principal business address of 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx, with
reference to the following:
RECITALS
A.Buyer
operates diagnostic imaging centers in Union, New Jersey.
B. Buyer and
Seller have an agreement whereby Seller performs services for Buyer’s
wholly-owned subsidiary, Union Imaging Center, LLC (“UIC”), for a fee of 5% of
monthly collections of UIC (the “Management Contract”), which represents
Seller’s entire interest in UIC’s cash collections net of professional reading
fees.
C. Union
Imaging Associates, JV (“UIA, JV”) uses in its business operations a GE
Millenium VG nuclear camera, in which Seller has a 100% ownership interest (the
“GE Camera”).
D. Buyer
controls 100% of the interests in UIA,JV.
E. Seller
and UIA, JV each have a 50% interest in a joint venture known as PET Scan at
Union Imaging, LLC (the “Joint Venture”).
F. Seller
and UIA, JV, which is owned 90% by Buyer’s wholly-owned subsidiary United
Imaging Associates, Inc. and 10% by Buyer directly, are parties to a Rental and
Service Agreement dated February 5, 2006 (the “Rental Agreement”), pursuant to
which Seller is to provide UIA, JV with the GE Camera at UIA, JV’s facility
located at 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx 00000, in consideration of
which Seller is to receive 50% of the revenues earned from studies performed
using the GE Camera, net of professional reading fees paid to radiologists in
connection with such studies.
G. Buyer
wishes to acquire from Seller all of Seller’s rights, title and interests in and
to (i) the Management Contract, (ii) the GE Camera, (iii) the Rental
Agreement, and (iv) Seller’s entire interest in the assets of the Joint Venture
((i), (ii), (iii) and (iv) collectively, (the “Assets”).
NOW, THEREFORE, in
consideration of the mutual covenants and conditions contained herein, the
parties hereto agree as follows:
AGREEMENT
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, all of Seller’s rights, title and interests in and to the
Assets.
2. Consideration/Deliveries
From Buyer at Closing. As full payment
for the transfer of the Assets to Buyer at the closing of the sale of the Assets
(the “Closing”), Buyer shall deliver to Seller a promissory note, in the form of
Exhibit A
attached hereto (the “Note”), in the aggregate principal amount of $670,000 (the
“Purchase Price”), bearing no interest, with all outstanding principal due on
the earlier of February 1, 2010 or the day on which Buyer consummates the sale
of its interests in UIC and UIA,JV for cash consideration (the “Maturity
Date”). The Note may be prepaid at any time without premium or
penalty.
3. No
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 or nature arising prior to the Closing in
respect of the Assets. It is expressly understood and agreed that
Seller is delegating to Buyer Seller’s obligations under the Rental Agreement,
but only to the extent such obligations arise after the Closing.
4. Taxes. Seller shall be
responsible and shall pay all taxes of any kind or character relating to the
transaction contemplated by this Agreement. 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 Interests In
Assets. Seller has good and marketable title to or valid
interests in all the Assets, whether real, personal, mixed, tangible, or
intangible. 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, except 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
Assets. All the tangible Assets are in good operating condition and
repair, ordinary wear and tear excepted.
5.3 Compliance with
Laws. Seller has complied with, and is not in violation of,
any statute, law or regulation affecting the Assets or the transfer of the
Assets to Buyer.
5.4 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.
5.5 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; or (3) the
creation or imposition of any lien, charge or encumbrance on the
Assets.
5.6 Organization; Authority and
Consents. Seller is a corporation duly organized and in good
standing under the laws of the State of Georgia and is qualified to do business
as a foreign corporation in each other jurisdiction where the character of its
assets or business would require such qualification. 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.
5.7 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 herein 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.
5.8 Buyer’s
Obligations. Seller acknowledges and agrees that, except for
the Note to be issued to Seller at the Closing, Buyer does not and shall not owe
Seller any amount whatsoever, and that the Note will be issued in satisfaction
of all monetary obligations previously owed by Buyer to Seller in connection
with the Management Contract, the Rental Agreement and any and all other
matters. Seller hereby forever releases Buyer from any and all claims for money
owed to Seller, other than pursuant to the Note.
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 made by a third party with respect to the Assets.
7. 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.
8. 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 forth
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.
8.1 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.
8.2 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.
8.3 Buyer’s
Inspection. Buyer shall make, or cause to be made, such
investigation of the Assets as it deems necessary or advisable. 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.
8.4 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.
9. 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.
9.1 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.
9.2 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.
9.3 Buyer’s
Approval. The Board of Directors of Buyer shall have duly
authorized and approved the execution, delivery and performance of this
Agreement and Buyer shall have taken all other actions necessary or proper to
fulfill Buyer’s obligations to be performed under this Agreement on or before
the Closing Date.
10. The
Closing. The transfer of
the Assets by Seller to Buyer shall take place at Seller’s offices in Union, New
Jersey at such time and place as the parties may agree to in writing (“Closing
Date”).
10.1
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 B, pertaining
to 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 or after 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, the 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.
10.2
Buyer’s Obligations at
Closing. At the Closing, Buyer shall deliver or cause to be
delivered to Seller:
(a) the
Note, duly executed by Buyer; and
(b) 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.
11. Rescission
of Agreement. This Agreement shall be rescinded in its
entirety and deemed null and void ab
initio if the Note is not repaid in full on or before February 1,
2009. In such event, (a) Buyer and Seller automatically shall revert
back to their respective ownership positions with respect to the Assets and
their obligations to one another as existing immediately prior to the Closing,
(b) the Note shall be cancelled, and (b) Buyer agrees to cooperate with Seller
and execute such instruments of transfer as Seller may reasonably request in
order to convey the Assets back to Seller.
12. 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, which approval shall not be
unreasonably withheld. This clause specifically excludes any required
regulatory filings with the SEC by Buyer.
13. 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.
14. Miscellaneous.
14.1
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.
14.2 Venue. Any legal
action brought by Buyer or Seller under this Agreement shall be brought in the
state or federal courts located in the City of Newark, New Jersey.
14.3 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, UPS 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 facsimile transmission (which
forms of Notice shall be deemed delivered upon confirmed
transmission). Notices shall be addressed as follows:
| If to Seller, addressed to: |
Medical
Equipment Solutions, Inc.
00000
Xxxx Xxxx Xxxxx
Xxxx
Xxxxx, Xxxxxxx, 00000
Facsimile:
|
| If to Buyer, addressed to: |
000
Xxxxxxxx Xxxxxx
Xxxxx,
Xxx Xxxxxx 00000
Facsimile:
|
or to
such other address as to which any party hereto may have notified the others in
writing.
14.4 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.
14.5 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.
14.6 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.
14.7 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.
14.8 Recitals
Incorporated. The Recitals of this Agreement are incorporated
herein and made a part hereof.
[SIGNATURES
FOLLOW]
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: /s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Chief Executive Officer
“SELLER”
Medical
Equipment Solutions, Inc., a
Georgia
corporation
By: /s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Owner
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Owner
|
ACKNOWLEDGED
AND AGREED:
Union
Imaging Associates, JV
By: /s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
General Partner
EXHIBIT
A
PROMISSORY
NOTE
| $670,000 |
Union, New
Jersey
November ___,
2009
|
FOR VALUE RECEIVED, the
undersigned Modern Medical Modalities Corporation, a publicly traded New Jersey
corporation (“Maker”) located at 000 Xxxxxxxx Xxxxxx, Xxxxx, XX 00000, promises
to pay Medical Equipment Solutions, Inc., a Georgia corporation located at 00000
Xxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx, 00000 (“Holder”) or order, as provided
herein, the principal amount of USD $670,000 (the “Principal
Amount”). This Note is made pursuant to that certain Agreement for
Purchase and Sale of Assets, dated the date hereof, between Holder and Maker
(the “Agreement”). All capitalized terms used but not defined herein
have the meaning set forth in the Agreement.
No interest shall accrue on this
Note. The entire Principal Amount shall be due and payable on the
earlier of February 1, 2010 or the day upon which Maker consummates the sale of
Maker’s interests in UIC and UIA,JV for cash consideration. This Note
may be prepaid in whole or in part at any time without premium or
penalty.
Holder may declare all indebtedness
evidenced by this Note to be immediately due and payable upon the happening of
any of the following: (1) the filing by or against Maker of a request or
petition for liquidation, reorganization, arrangement, adjustment of debts,
adjudication as a bankrupt, relief as a debtor or other relief under the
bankruptcy, insolvency or similar laws of the United States, now or hereafter in
effect; (2) the making by Maker of any general assignment for the benefit of
creditors; or (3) the appointment of a receiver or trustee for Maker or for any
assets of Maker, including, without limitation, the appointment of or taking
possession by a “custodian”, as defined in the Federal Bankruptcy
Code.
No modification or waiver of any
provision of this Note or any documents or instruments executed simultaneously
herewith shall be effective unless it shall be in writing and signed by both
Holder and Maker, and any such modification or waiver shall apply only in the
specific instance for which given.
The term “Holder” as used herein shall
be deemed to include Holder and its successor(s), endorsee(s) and
assign(s).
Maker hereby waives presentment, demand
for payment, protest, notice of protest and notice of non-payment
hereof.
No failure by Holder to exercise, and
no delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Holder of any right or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right or remedy. The rights and remedies of Holder as herein
specified are cumulative and not exclusive of any other rights or remedies which
Holder may have at law or in equity.
This Promissory Note is subject to
cancellation in accordance with Section 11 of the Agreement.
This Promissory Note shall be governed
by the internal laws of the State of New Jersey without regard to its principles
of conflicts of laws. Maker and Holder agree that the State and Federal Courts,
which sit in the City of Newark, New Jersey, shall have exclusive jurisdiction
of all controversies and disputes arising hereunder.
|
MAKER
|
HOLDER |
| Modern Medical Modalities Corporation | Medical Equipment Solutions, Inc. |
| By: /s/ Xxxxx Xxxxx | By: /s/Xxxxxx Xxxxxx |
| Name: Xxxxx Xxxxx | Name: Xxxxxx Xxxxxx |
| Title: Chief Executive Officer | Title: Owner |
| By: /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | |
| Title: Owner | |
EXHIBIT
B
XXXX
OF SALE
1. Medical
Equipment Solutions, Inc. (hereinafter referred to as “Seller”), for good and
valuable consideration, as designated in that certain Agreement For Purchase And
Sale Of Assets (“the Agreement”) made and entered into November __, 2009 between
the Seller and Modern Medical Modalities Corporation of New Jersey (hereinafter
referred to as “Buyer”), the receipt and sufficiency of which consideration is
hereby acknowledged, hereby grants, sells, assigns, transfers, conveys and
delivers to Buyer, free and clear of all liens, claims, charges and encumbrances
of any nature whatsoever, all of its rights, title and interests in and to the
Assets (as defined in the Agreement).
2. Seller
shall execute and deliver such further instruments of sale, conveyance, transfer
and assignment and take such other actions reasonably requested by Buyer in
order to effectively bargain, sell, assign transfer, convey to and vest in Buyer
all of its rights, title and interests in and to the Assets.
3. This
Xxxx of Sale shall be subject to all the rights, obligations, terms and
conditions of the Agreement.
IN WITNESS WHEREOF, the Seller has
caused this Xxxx of Sale to be executed, the _____ day of November __,
2009.
|
Medical
Equipment Solutions, Inc.
By: /s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Owner
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Owner
|
