LIMITED LIABILITY COMPANY PURCHASE AGREEMENT
Exhibit
10.1
This
Interests Purchase Agreement (“Agreement”) is entered into as of May 30, 2009 by
and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Seller”), Hartlab LLC (the “Company”) and
Adeona Pharmaceuticals, Inc., (“Purchaser”). Purchaser, the Company and Seller
may collectively be referred to as the “Parties.”
WHEREAS, Seller is the record
owner and holder of all of the issued and outstanding membership interests of
Hartlab LLC (the “Company”), an Illinois limited liability company;
and
WHEREAS, the Parties desire to
enter into this Agreement pursuant to which Purchaser will purchase from Seller
all of the outstanding membership interests of the Company.
NOW, THEREFORE, in
consideration for the promises set forth in this Agreement, the Parties agree as
follows:
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1.
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PURCHASE AND
SALE: Subject to the terms and conditions set forth in
this Agreement, Purchaser hereby agrees to purchase from Seller, and
Seller hereby agree to sell, transfer and convey to the Purchaser all of
the interests of the Company, representing all of the issued and
outstanding membership interests of the Company (the
“Interests”). The transaction shall also include all the sale
and transfer of the operating assets of the Company listed on Exhibit A,
an obligation of Seller to pay the remaining $74,000 in lease expenses for
the clinical equipment over the remaining term of such leases with the
Buyer to pay in full all other leases, right of Purchaser to make
employment offers to any or all of the Company’s existing employees after
closing and all existing contracts that do not have change in control
provisions, and for those that do, the Parties shall attempt to seek to
negotiate such change in control authorization to continue such agreements
in effect. The Purchaser shall assume the existing real estate
lease and seek and obtain the landlord’s consent to the change in
ownership and a full release of Seller. The Parties shall
cooperate in good faith in the transfer of the CMS license and Illinois
Dept. of Public Health license, including a power of attorney in favor of
the Company following ownership transfer to the Purchaser until such
licenses are transferred by CMS and
Illinois.
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2.
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PURCHASE
PRICE: The purchase price for all of the shares of
Interests shall be Two Hundred and Eighty Thousand dollars ($280,000) (the
“Purchase Price”) with Fourteen Thousand dollars ($14,000) to be paid in
cash to the Seller as a nonrefundable ▇▇▇▇▇▇▇ payment creditable against
the Purchase Price contemporaneous with the execution of this Agreement
and the remainder of the Purchase Price of Two Hundred and Sixty Six
Thousand dollars ($266,000) to be paid in cash to the Seller on June 30,
2009 unless an earlier closing date is agreed to in writing signed by both
parties (the “Closing”). Cash payments made by Purchaser shall
be made by certified checks from Purchaser to Seller upon execution of
this Agreement by Seller and at the
Closing.
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3.
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CLOSING: The
closing contemplated by this Agreement for the transfer of the Interests
and the payment of the Purchase Prices shall take place at the offices of
Hartlab LLC on June 30, 2009 at 9:00a.m. CT unless an earlier closing date
is agreed to in writing signed by both parties (the
“Closing”). The certificates representing the Interests shall
be duly endorsed for transfer or accompanied by an appropriate Interests
transfer and the charter of Hartlab shall be duly amended to provide for
Purchaser to become the new owner of all of the outstanding
Interests. The Company shall notify the Federal CMS and
Illinois licensing agency of the transfer and Seller and Company shall
provide a power or attorney to continue the business of the Company under
his CLIA license until such license shall have been transferred by
CMS. Purchaser’s obligation to close shall be conditioned upon
the satisfactory completion of Purchaser’s due diligence determined in
Purchaser’s sole discretion which Seller shall undertake and complete on
or before the Closing. Should Purchaser not be satisfied with
the outcome of its due diligence and elect not to close on June 30, 2009,
Purchaser shall forfeit the $14,000 nonrefundable ▇▇▇▇▇▇▇ payment and the
Parties shall have no further obligation under this
Agreement.
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4.
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REPRESENTATIONS AND WARRANTIES
OF SELLER: Seller hereby warrants and represents
that:
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(a)
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Restrictions on
Interests. The Seller is not a party to any agreements
that create rights or obligations in the Interests relating to any third
party including voting or other agreements. The Seller is the
lawful owner of the Interests, free and clear of any encumbrances,
security interests or liens of any kind and has full power and authority
to sell and transfer the Interests as contemplated in this
Agreement. The Interests represents all of the issued and
outstanding Interests of the
Company.
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(b)
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Organization and
Standing. To the Seller’s knowledge, the Company is duly
organized, validly existing and in good standing under the laws of the
State of Illinois and has full
power and authority to own and operate its property and assets and to
carry on its business as presently conducted and the one thousands shares
of Interests represent all of the issued and outstanding Interests of the
Company.
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(c)
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Operation of
Business. Between the signing of this Agreement and the
Closing, the Seller shall operate the business of the Company in the
normal course and at the Closing net working capital and equity reflected
in the general ledger of accounts as per Quickbooks as of the date hereof
shall not materially differ. Until June 30, 2009, Seller,
Company and their agents, shall not solicit other offers from other
parties and shall discontinue any and all discussions with other parties
whom they may be already in discussion
with.
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(d)
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▇▇▇▇▇▇▇ ▇▇▇▇▇
Consulting. Following the Closing, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall
serve as a consultant on a part-time basis to Seller for a period of up to
twelve (12) months following the Closing for a monthly consulting fee of
Four Thousand dollars ($4,000) per month to assist in the transition and
business of the Company, pursuant to an Independent Contractor Agreement,
providing for not more than 15 hours per week and permit 100% of
activities to be conducted by ▇▇▇▇▇ remotely. For a period of
two (2) years following the closing ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not solicit the
Company’s accounts or employees nor compete with the Company in Illinois
without the prior written permission of the
Company.
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(e)
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General
Ledger. At the Closing, the Parties shall agree on a
general ledger of accounts from inception through December 31, 2008, at
May 31, 2009 and at the Closing date other than as shall be disclosed in
such documents or on a List of Exceptions to be provided as an Exhibit at
such time, the parties will agree that there will be no material
liabilities, (including Medicare, MediCal or other insurance liabilities),
liens, tax liabilities, actions, actual, pending or threatened that may
have a material adverse effect on the business of the Company (the
“Liabilities”). For purposes of this Agreement, Liabilities
will only be considered material if together in the aggregate they exceed
ten percent (10%) of the Purchase
Price.
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(f)
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Taxes. Each
of the parties shall be responsible for their own taxes with respect to
the transaction with all income loss, deductions and credits on or prior
to the Closing date shall be allocated to the Seller, including any gain
or loss on the sale hereunder.
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(g)
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Limitation
on Representations and Warranties. Seller’s representations and
warranties shall not exceed $140,000 in the aggregate and shall survive
the closing for six months (with the exception of the noncompete provision
which shall survive for it two year
term).
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5.
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SEVERABILITY: If any
part or parts of this Agreement shall be held unenforceable for any
reason, the remainder of this Agreement shall continue in full force and
effect. If any provision of this Agreement is deemed invalid or
unenforceable by any court of competent jurisdiction, and if limiting such
provision would make the provision valid, then such provision shall be
deemed to be construed as so
limited.
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6.
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BINDING EFFECT: The
covenants and conditions contained in this Agreement shall apply to and
bind the parties and the heirs, legal representatives, successors and
permitted assigns of the Parties.
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BROKER’S FEES ATTORNEYS
FEES: The Parties represent that there has been no act in
connection with the transactions contemplated in this Agreement that would give
rise to a valid claim against either party for a broker’s fee, finder’s fee or
other similar payment. Each party shall be subject to their own
attorneys fees and expenses.
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7.
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ENTIRE AGREEMENT: This
Agreement constitutes the entire agreement between the Parties and
supersedes any prior understanding or representation of any kind preceding
the date of this Agreement. There are no other promises, conditions,
understandings or other agreements, whether oral or written, relating to
the subject matter of this Agreement. This Agreement may be modified in
writing and must be signed by both the Seller and
Purchaser.
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8.
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9.
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NOTICE: Any
notice required or otherwise given pursuant to this Agreement shall be in
writing and mailed certified return receipt requested, postage prepaid, or
delivered by overnight delivery
service:
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(a)
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If
to Purchaser:
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▇▇▇▇▇ ▇.
▇▇▇▇▇▇, CPA, JD
Chairman
and Chief Executive Officer
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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(b)
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If
to Seller:
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▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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10.
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WAIVER: The failure of
either party to enforce any provisions of this Agreement shall not be
deemed a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with every provision of this
Agreement.
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11.
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REPRESENTATIONS AND WARRANTIES
OF PURCHASER. Purchaser represents and warrants that it
is validly organized, has authority to enter into this Agreement with
Seller and until CMS and Illinois licenses have been fully transferred and
while Seller remains laboratory director, Purchaser will indemnify Seller
for expenses and costs incurred by Seller in connection with such
activities.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed the day
and year first above written.
| SELLER: | ||
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CPA, ▇▇ | ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Chairman and CEO | ||
| HARTLAB LLC | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Its: President |