AGREEMENT OF SALE
AGREEMENT OF SALE, made July 16, 1997, between Xxxxx X. Xxxxxx, M.D. ("Xxxxxx"),
a licensed New York physician ("Seller"), and SternCo Management, Inc., as
authorized representative of Oak Tree Medical Systems, Inc., a Florida
corporation located at 0000 Xxxxxxxxx Xxxx, Xxxxx 000X, Xxxx Xxxx Xxxxx, Xxxxxxx
00000 ("Purchaser").
WITNESSETH:
WHEREAS, Purchaser desires to acquire, and Seller desires to sell, the assets of
the physical therapy and rehabilitation practice (the "Practice") owned and
operated by Seller as a sole proprietorship upon the terms and conditions
hereinafter set forth, and
WHEREAS, Xxxxx Xxxxxx, M.D. is the owner of the Practice currently located at
Xxxxx 000, 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, and
WHEREAS, Xxxxx X. Xxxxxx, M.D. is the medical manager of the Practice.
NOW, THEREFORE, in consideration of the covenants and agreements hereafter set
forth, and other valuable consideration, the receipt and sufficiency of which
hereby is acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO SELL. Seller agrees to sell, transfer and deliver to Purchaser,
and Purchaser agrees to purchase, upon the terms and conditions hereinafter set
forth, all of the assets of the practice as noted herein.
2. THE ASSETS. It is the understanding of the parties that Seller is the owner
of the following assets (the "Assets"):
(a) the equipment, patient files, name and general assets described
in Exhibit A-1 hereto and all similar equipment acquired or owned
by the Practice on or before the closing date (the "General
Assets");
(b) the furniture, fixtures and improvements described in Exhibit A-2
hereto and all similar items acquired or owned by the Practice on
or before the closing date (the "General Assets");
(c) the leases described in Exhibit A-3 hereto (the "Leases");
(d) the equipment leases, contracts and agreements described in
Exhibit A-4 hereto (the "Contracts");
(e) the bank accounts, lines of credit and safe deposit boxes
(including a list of the persons authorized to access the bank
accounts and safe deposit boxes) described in Exhibit A-5 hereto
(the "Bank Accounts and Boxes");
Notwithstanding anything to the contrary contained herein, there shall be
excluded from the Assets, (i) all cash on hand and in Seller's bank accounts and
(ii) accounts receivable.
3. PURCHASE PRICE. The purchase price to be paid by Purchaser is Four Hundred
Thousand Dollars ($400,000.00).
A. The purchase price shall be paid as follows:
(a) Seller hereby acknowledges receipt of Twenty-Five Thousand
Dollars ($25,000.00) as a deposit made by Purchaser.
(b) Upon the execution of this Agreement by Seller and
Purchaser, Purchaser shall pay an additional Twenty-Five
Thousand dollars ($25,000.00) to Seller.
(c) Fifty Thousand Dollars ($50,000.00) at the Closing (or
such other amount as may be mutually agreed upon by the
parties prior to Closing).
(d) Three Hundred Thousand Dollars ($300,000.00) at the
Closing by giving Seller a Promissory Note (the "Note")
payable over five (5) years, at eight percent (8%) simple
interest per annum, payable quarterly, secured by the
furniture, fixtures and equipment of the Practice (the
"FF&E"), the form of which is attached as Exhibit B. IN NO
CASE SHALL PURCHASER BE RESPONSIBLE FOR ANY INDEBTEDNESS
OF SELLER OTHER THAN AS INDICATED HEREIN.
B. The purchase price shall be allocated as described in Exhibit A-6
hereto.
C. The Note shall be reduced in accordance with the formula set forth
below:
(i) if the Practice produces at least $1,100,000 in legitimate
xxxxxxxx ("Xxxxxxxx") in the first year post-closing, then
there shall be no offset against the Note; and
(ii) if the Practice produces less than $1,100,000 in Xxxxxxxx
in the first year post-closing, then there shall be an
offset against the Note payments due to Seller, in the
amount of $100,000.00, to be offset against the Note
payments due to Seller in years 2-5, with an equal offset
amount to be applied against each installment due under
the Note in years 2-5.
4. THE CLOSING. The "closing" means the settlement of the obligations of
Seller and Purchaser to each other under this agreement, including the payment
of the purchase price to Seller as provided in Article 3 hereof and the delivery
of the closing documents provided for in Article 5 hereof. The closing shall be
held at a location agreed upon by the parties and shall take place on or before
July 31, 1997 (the "Closing Date").
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5. CLOSING DOCUMENTS. At the closing Seller shall execute and deliver to
Purchaser:
(a) an Assignment of the rights of the lessees under the Leases;
(b) an opinion of Seller's counsel, Xxxxxx X. Xxxxxxxx of 000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, XX, 00000 dated as of the
closing date, in form and substance satisfactory to
Purchaser's counsel;
(c) Restrictive Covenant as enumerated in Article Ten (10);
(d) Seller's Performance Agreement;
(e) statements executed by Seller, releasing and indemnifying
Purchaser from any and all obligations and liabilities of
Seller, other than those specifically assumed herein; and
(f) such other instruments and information in form and substance
satisfactory to Purchaser's counsel as may be necessary or
proper to transfer to Purchaser good and marketable title to
all other ownership interests in the Assets to be
transferred under this agreement.
(g) An opinion of Purchaser's counsel dated as of the Closing
Date in form and substance satisfactory to Seller's counsel.
At the closing Seller shall deliver to Purchaser all keys for the businesses. If
any keys for the businesses or Assets are held by employees or others, Seller
shall identify such individuals, their addresses and their relationship to the
Seller. Seller shall do all further acts and things as may be necessary, or
reasonably requested by Purchaser, to consummate the transactions contemplated
by this Agreement, including the acquisition of and possession of the Assets.
Seller shall advise Purchaser of, and cause to be delivered to Purchaser, all
applicable trade secrets and proprietary information pertaining to the Assets of
the businesses.
At the closing Purchaser shall execute and deliver to Seller:
(i) an Assumption of the obligations of the lessees under the Leases
and Equipment Contracts;
(ii) the Promissory Note and appropriate Security Agreement evidencing
the $300,000 debt and the security interest in the FF&E
guaranteed by Oak Tree Medical Systems, Inc.; and
(iii)reciprocal documentation and Counsel's opinion as listed in
subparagraphs (b), (e) and (g), above.
Except as expressly provided herein, Purchaser shall not be obligated to pay or
perform any obligations or liabilities of Sellers including, without limitation,
obligations or liabilities of Seller
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to their creditors or any legal, accounting, brokerage or finder's fees or any
taxes or other expenses in connection with this agreement or the consummation of
the transactions contemplated hereby.
6. CLOSING ADJUSTMENTS. The following items shall be apportioned as of midnight
of the day preceding the closing date:
(a) rent, including any additional rent, under the Real Estate
leases or Equipment leases;
(b) taxes and applicable common charges under the leases;
(c) water and sewer charges;
(d) utilities, as applicable; and
(e) employee salaries and benefits.
Any errors or omissions in computing apportionments shall be corrected after the
Closing, with both parties fully cooperating.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Purchaser as follows:
(a) Seller has full power and authority to own his assets and to
conduct his business and the Practice as now carried on, and
to carry out and perform his undertakings and obligations as
provided herein. The execution and delivery by Seller of
this Agreement and the consummation of the transactions
contemplated herein do not and will not conflict with or
result in any breach of any condition or provision of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon the
Assets by reason of the provisions of any contract, lien,
lease, agreement, instrument or judgment to which Seller is
a party, or which are or purport to be binding upon Seller
or which affect or purport to affect the Assets. No further
action or approval, corporate or otherwise, is required in
order to constitute this Agreement the binding and
enforceable obligation of Seller.
(b) No action, approval, consent or authorization, including
without limitation any action, approval, consent or
authorization of any government or quasi-governmental agency
commission, board, bureau or instrumentality, is necessary
for Seller to constitute this agreement the binding and
enforceable obligation of Seller or to consummate the
transactions contemplated hereby.
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(c) Seller is the owner of and has good and marketable title to
the Assets, free of all liens, claims and encumbrances,
except as set forth herein.
(d) There are no violations, potential claims of violations or
questions of irregularity regarding any law or governmental
rule or regulation pending or to the best of Seller's
knowledge, threatened against Seller, or the Assets. Seller
has complied with all laws and governmental rules and
regulations applicable to the business or the Assets. Seller
has duly notified all insurance carriers or third party
payers of any suspected or known claims or potential claims
which may be asserted against Seller or the Assets.
(e) There are no judgments, liens, suits, actions or proceedings
pending or, to the best of Seller's knowledge, threatened
against Seller, or the Assets. Neither Seller, nor the
Assets are a party to, subject to or bound by any agreement
or any judgment or decree of any court, governmental body or
arbitrator which would conflict with or be breached by the
execution, delivery or performance of this agreement, or
which could prevent the carrying out of the transactions
provided for in this agreement, or which could prevent the
use by Purchaser of the Assets or adversely affect the
conduct of the Practice by Purchaser.
(f) Seller has not entered into, and the Assets are not subject
to, any: (i) written contract or agreement for the
employment of any employee of the business; (ii) contract
with any labor union or guild; (iii) pension,
profit-sharing, retirement, bonus, insurance, or similar
plan with respect to any employee of the business; or (iv)
similar contract or agreement affecting or relating to the
Assets.
(g) At the time of the closing, there will be no (secured or
unsecured) creditors of Seller, except for general business
creditors or equipment lessors. General business creditors
and equipment lessors are listed in Exhibit A-4 attached
hereto. Except as set forth herein, Seller shall be liable
for all other obligations incurred by Seller prior to
closing.
(h) The Lease or Sublease is in full force and effect and
without any default by Seller thereunder. All copies of the
Lease provided by Seller to Purchaser are true and complete
copies of the original Lease.
(i) All Contracts and Equipment Leases are in full force and
effect and without any default by Seller or thereunder. All
copies of the Contracts and Leases provided by Seller to
Purchaser are true and complete copies of the original
Contracts. Seller is not indebted under any executory
Contracts or Leases, except as may be set forth in Exhibit
A-4 hereto. All owned equipment is unsecured and debt-free.
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(j) Seller has filed each tax return, including without
limitation all income, excise, property, capital gain,
sales, franchise and license tax returns, required to be
filed by Seller prior to the date hereof. Each such return
is true, complete and correct, and Seller has paid all
taxes, assessments and charges of any governmental authority
required to be paid by them and have created reserves or
made provision for all taxes accrued but not yet payable. No
government is now asserting, or to Seller's knowledge
threatening to assert, any deficiency or assessment for
additional taxes or any interest, penalties or fines with
respect to Seller. Seller shall hold Purchaser harmless and
indemnify Purchaser against all claims for taxes due from
and owed by Seller.
(k) The attached financial statements in Exhibit C are true and
accurate. The financial statements fairly and correctly
present the financial position of the Seller and will so
represent such as of the date of closing. Seller's
representations and warranties as to the financial condition
of the business shall survive closing.
(l) Compliance with law. Seller has not received any notice or
notification from any court or governmental agency,
authority or body that it is in violation of or not in
compliance with any foreign or domestic (federal, state or
local) laws, statutes, ordinances, rules, regulations,
decrees, orders, permits or other similar items (including,
but not limited to, those relating to occupational safety
and health, employment discrimination, environmental
protection and conservation) or that upon the passage of
time it will be in violation of any of the foregoing. To the
best knowledge of Seller, the conduct of business by Seller
on the date hereof and as of the Closing Date does not and
will not violate any foreign or domestic (federal, state or
local) laws, statutes, ordinances, rules, regulations,
decrees, orders, permits or other similar items in force on
the date hereof that full compliance therewith would have a
material adverse effect on the business, assets, condition
(financial or otherwise) or prospects of Seller. There is no
present or pending zoning or use restriction known to the
Seller that adversely affects the Practice now conducted or
presently proposed to be conducted by Seller.
(m) The Medicare and Medicaid Programs. Seller is eligible to
receive payment under Title XVIII of the Social Security Act
as a Part B provider, under Title XI of such Act and the New
York Medicaid State Plan. Seller has timely filed, in a
complete and correct manner, all requisite claims and other
reports required to be filed in connection with all state
and federal Medicare and Medicaid programs due on or before
the date hereof. There are no claims, actions, payment
reviews, or appeals pending or to the best of Seller's
knowledge, threatened before any commission, board or
agency, including, without limitation, any intermediary or
carrier, the Administrator of the Health Care Financing
Administration, or the New York Department
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of Health and rehabilitative Services or any other state or
federal agency with respect to any Medicare or Medicaid
claims filed on or before the Closing or Program compliance
matters, which would adversely affect the Practice, the
operation of the Practice or the consummation of the
transactions contemplated hereby. No validation review or
program integrity related to the Business (other than
normal, routine reviews) has been conducted by any
commission, board or agency in connection with the Medicare
or Medicaid program, and no such reviews are scheduled,
pending or, to the best of Seller's knowledge, threatened
against the Practice, Xx. Xxxxxx or Seller or the
consummation of the transactions contemplated hereby.
(n) Fraud and Abuse. Neither Seller nor persons and entities
providing professional services for the Practice have
engaged in any activities which are prohibited under U.S.C.
Sec. 1320a - 7b or the regulations promulgated thereunder
pursuant to such statutes, or any other related state or
local statutes and regulations, or which are prohibited by
Rules of Professional Conduct, including but not limited to
the following:
(a) knowingly and willfully making or causing to be made a
false statement or representation of a material fact in
any application for any benefit or payment;
(b) knowingly and willfully making or causing to be made
any false statement or representation of a material
fact for use in determining rights to any benefit or
statement or representation of a material fact for use
in determining rights to any benefit or payment;
(c) failing to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or
continued right to any benefit or payment on its, his
or her own behalf or on behalf of another, with intent
to fraudulently secure such benefit or payment; and
(d) knowingly and willfully soliciting or receiving any
remuneration, kickback, bribe or rebate, directly or
indirectly, overtly or covertly, in cash or in kind, or
offering to pay or receive such remuneration in return
for (a) referring an individual to a person for the
furnishing or arranging for the furnishing of any item
or service for which payment may be made in whole or in
part by Medicare or Medicaid, or (b) purchasing,
leasing or ordering, or arranging for or recommending
purchasing, leasing or ordering, any goods, facility,
service or item for which payment may be made in whole
or in part by Medicare or Medicaid.
(o) Legal Compliance. To the best of Seller's knowledge, Seller
and its respective employees and shareholders, including,
but not limited to, Dr.
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Xxxxxx, have not engaged in any activities which are
prohibited under Section 0000x - 0X xx Xxxxx 00 xx xxx
Xxxxxx Xxxxxx Code or the regulations promulgated
thereunder, or related state or local statutes or
regulations, or which are prohibited by rules of
professional conduct, including, but not limited to, the
following: (i) knowing and willfully making or causing to be
made any false statement or representation of a fact in any
application for any benefit or payment; (ii) any failure by
a claimant to disclose knowledge of the occurrence of any
event affecting the initial or continued right to any
benefit or payment on their own behalf or on behalf of
another, with the intent to fraudulently secure such benefit
or payment; and (iii) knowingly and willfully soliciting or
receiving any remuneration (including any kickback, bribe or
rebate), directly or indirectly, overtly or covertly, in
cash or in kind, or offering to any to receive such
remuneration (a) in return for referring an individual to a
person for the furnishing or arranging for the furnishing of
any item or service for which payment may be made in whole
or in part by the Medicare or Medicaid programs, or (b) in
return for purchasing, leasing or ordering, or arranging for
or recommending purchasing, leasing or ordering, any goods,
facility, service or item for which payment may be made in
whole or in part by the Medicare or Medicaid programs. To
the best of Seller's knowledge, no physician or physical
therapist currently employed by or acting as an independent
contractor for Seller (a) has had his or her license to
practice medicine in any jurisdiction denied, surrendered,
limited, suspended, revoked or subject to probationary
conditions or is subject to any pending proceedings
regarding any of the foregoing, (b) has had his or her
federal or state Drug Enforcement Agency controlled
substance authorization denied, revoked, suspended, reduced
or not renewed or has been subject to institution of, or is
subject to any pending, proceedings regarding any of the
foregoing, (c) has had his or her membership in any local
state or national medical professional society or
organization revoked, suspended or not renewed or is subject
to any pending proceedings regarding any of the foregoing,
(d) has received treatment for alcoholism, drug abuse,
sexual misconduct or psychiatric disorders, or (e) has been
the subject of administrative sanctions or been suspended
from or lost eligibility for participating in Medicare,
Medicaid or other governmental or non-governmental medical
insurance programs, or is subject to any pending proceedings
regarding any of the foregoing.
At the closing Seller shall execute and deliver an affidavit setting forth the
above representations.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a professional corporation organized under the laws
of New York, and is duly qualified to do business in New York as
a physical therapy practice
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and as a physical medicine practice. Purchaser has full power and
authority to carry out and perform its undertakings and
obligations as provided herein. The execution and delivery by
Purchaser of this Agreement and the consummation of the
transaction contemplated herein have been duly authorized by the
Board of Directors of Purchaser and will not conflict with or
breach any provision of the Certificate of Incorporation or
Bylaws of Purchaser. No further action or approval, corporate or
otherwise, is required in order to constitute this Agreement the
binding and enforceable obligation of Purchaser.
(b) No action, approval, consent or authorization, including, without
limitation any action, approval, consent or authorization of any
governmental or quasi-governmental agency, commission, board,
bureau or instrumentality, is necessary for Purchaser to
constitute this Agreement the binding and enforceable obligation
of Purchaser or to consummate the transactions contemplated
hereby.
9. CONDITIONS TO CLOSING. The obligations of Purchaser to Close hereunder are
subject of the following conditions:
(a) All of the terms, covenants and conditions to be complied with or
performed by Seller under this Agreement on or before the Closing
shall have been complied with or performed in all material
respects.
(b) All representations or warranties of Seller herein are true in
all material respects as of the Closing Date. Such
representations and warranties shall also survive Closing.
(c) The results of a financial audit shall be satisfactory, as
required by Purchaser.
(d) All Assets shall be in good working order, as applicable, and
have been calibrated within the past twelve (12) months.
(e) On the Closing Date, there shall be no liens or encumbrances
against the Assets.
(f) The Practice has been conducted only in the ordinary course of
business. No contracts or purchase agreements/orders will have
been entered into, other than in the ordinary course of business.
No expenditures or credit purchase will be made by Seller other
than in the ordinary course of business.
(g) Seller, and his representatives, and advisors will supply, upon
request by Purchaser and its representatives, such pertinent
information as may be required by Purchaser in order to conduct
its due diligence survey of Seller. It is agreed that any
documents or information provided hereunder shall be kept in full
and complete confidence.
(h) Xxxxx X. Xxxxxx, M.D. will agree to be employed by Purchaser as
evidenced by an Employment Agreement satisfactory to the
Purchaser to be signed at Closing
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(or thereafter as agreed to by the parties), whereby Xxxxxx will
serve as a medical practitioner of the purchased facility. Such
employment term shall be a minimum of six months.
(i) Xxxxxxx Xxxxxx will be employed by Purchaser on terms
satisfactory to the Purchaser as an Assistant Practice Manager,
at a salary of $50,000 per annum for six (6) months or as
mutually agreed upon consistent with fair market rates, as
evidenced by an Employment Agreement to be signed at closing (or
thereafter as agreed to by the parties).
(j) Purchaser shall secure a satisfactory Lease Agreement for the
Practice for a term of at least four (4) years.
(k) The Board of Directors of the Purchaser will have reviewed the
transaction and the deal documents and deemed them to be
satisfactory.
(l) All Schedules and Exhibits shall have been completed by Seller
and deemed satisfactory by Purchaser.
If this Agreement is terminated because any of the above have not been
satisfied, which each party shall the right to do, Seller shall return any
payments or deposits made by Purchaser on account of the purchase price,
whereupon all rights of Purchaser hereunder and to the Practice shall terminate,
and neither Seller nor Purchaser shall have any further claim against the other
hereunder.
10. RESTRICTIVE COVENANT NOT TO COMPETE. Except as set forth in Schedule 10,
Seller will not, for a period of four (4) years from the date of closing,
either directly or indirectly, engage in the practice of physical medicine
or physical therapy or related services, within lower Westchester County,
NY (up to and including latitude of White Plains, NY), Fairfield County, CT
and within a ten (10) mile radius of Seller's current address as listed
herein. Seller shall execute at Closing, such documents as will evidence
this surviving provision. To the extent a court of competent jurisdiction
determines this provision to be excessively restrictive, the parties agree
to abide by any modification acceptable to such court.
11. INDEMNIFICATION. Each party hereto shall indemnify and hold the other
parties harmless from and against all liability, claim, loss, damage or
expense, including reasonable attorneys' fees, incurred or required to be
paid by such other parties by reason of any breach or failure of observance
or performance of any representation, warranty, covenant or other provision
(including lists and Exhibits) of this agreement by such party. Seller
shall indemnify and hold Purchaser harmless against all actions, suits,
proceedings, judgments, costs and expenses incurred by or levied against
Purchaser, due to Seller's prior acts, omissions, negligence or other
wrongful conduct, or the operation of the Practice prior to Closing.
Purchaser shall indemnify and hold Seller harmless against all actions,
suits, proceedings, judgments, costs and expenses incurred by or levied
against
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Seller, due to Purchaser's acts, omissions, negligence or other wrongful
conduct, or the operation of the Practice after Closing.
12. RISK OF LOSS. The risk of loss to the Assets of the business and the
Practice, until Closing is assumed and shall be borne by Seller. Seller
agrees to keep all of his Assets fully insured against any loss, either by
fire, theft or casualty, to the date of Closing. In the event that prior to
Closing such Assets are totally or substantially damaged by reason of fire,
theft, casualty, or breakage, Seller will repair or replace such Assets at
or prior to Closing or Purchaser may, in its sole discretion terminate the
within transaction. In such case, all money heretofore deposited with
Seller or Seller's representative shall be refunded to Purchaser and the
parties shall be released from any further liability hereunder. If the
Purchaser elects to consummate this transaction despite such loss or
damage, it may do so by paying the purchaser price set forth herein,
reduced by any insurance proceeds received by Seller.
13. BROKERAGE. The parties hereto represent and warrant to each other that they
have not dealt with any broker or finder in connection with this agreement
other than Xxxx Xxxxxxx. Seller shall be solely responsible for and shall
pay at closing all commission, fees, expenses and charges due or owing to
the Broker in connection with this transaction, pursuant to a separate
agreement between the Seller and Broker. Seller shall indemnify, defend and
hold Purchaser harmless from and against any loss, cost, expense, claim or
liability (including, without limitation, reasonable attorney's fees)
arising under or in respect of any claim by any person or entity for any
commission, fee or expense in respect of the transaction contemplated by
this Agreement. The provisions of this Article shall survive the
expiration, termination or cancellation of this Agreement, but shall not be
construed as a covenant for the benefit of any third party.
14. NOTICES. All notices, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to
have been properly given if delivered by hand or by registered or certified
mail, return receipt requested, with postage prepaid, to Seller's Attorney,
Xxxxxx X. Xxxxxxxx, 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, XX, 00000, and to
Buyer's attorney. The respective attorneys for the parties hereby are
authorized to give notice required or permitted hereunder and to agree to
adjustments of the closing.
15. SURVIVAL. The representations, warranties and covenants contained herein or
in any document, instrument, certificate or schedule furnished in
connection herewith shall survive the delivery of me Xxxx of Sale and shall
continue in full force and effect after the closing, except to the extent
waived in writing.
16. FURTHER ASSURANCES. In connection with the transactions contemplated by
this Agreement, the parties agree to execute and deliver such further
instruments and to take such further actions, as may be reasonably
necessary or proper to effectuate and carry out the transactions
contemplated in this Agreement.
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17. CHANGES MUST BE IN WRITING. No delay or omission by either Seller or
Purchaser in exercising any right shall operate as a waiver of such right
or any other right. This Agreement may not be altered, amended, changed,
modified, waived or terminated in any respect or particular unless the same
shall be in writing signed by the party to be bound. No waiver by any party
of any breach hereunder shall be deemed a waiver of any other or subsequent
breach.
18. CAPTIONS AND EXHIBITS. The captions in this Agreement are for convenience
only and are not to be considered in construing this Agreement. The
Exhibits annexed to this Agreement are an integral part of this Agreement,
and where there is any reference to this Agreement, it shall be deemed to
include said Exhibits.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
20. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
21. CANCELLATION. Purchaser reserves the right to cancel this Agreement at any
time prior to Closing, without penalty, if any negative disclosure is
discovered regarding Sellers, or the Assets, which would materially affect
the value of Assets. Purchaser's right to cancel under this provision shall
be null and void subsequent to actual closing.
22. CONFIDENTIALITY. Each party acknowledges and agrees that any information or
data it has acquired from the other party, not otherwise properly in the
public domain, was received in confidence. Each party hereto agrees not to
divulge, communicate or disclose, except as may be required by law or for
the performance of this Agreement (including conducting due diligence or
notifying a party's lender) or use to detriment of the disclosing party or
for the benefit of any other person or persons, or misuse in any way, any
confidential information of the disclosing party concerning the subject
matter hereof, including any trade or business secrets of the disclosing
party and any technical or business materials that are treated by the
disclosing party as confidential or proprietary, including without
limitation information (whether in written, oral or machine readable form)
concerning: general business operations: methods of doing business,
servicing clients, client relations, and of pricing and making charge for
services and products; financial information, including costs, profits and
sales; marketing strategies; business forms developed by or for the
disclosing party; names of suppliers, personnel, clients and potential
clients; negotiations or other business contacts with suppliers, personnel,
clients and potential clients; form and content of bids, proposals and
contracts; the disclosing party's internal reporting methods; technical and
business data and documentation software programs, however embodied;
diagnostic techniques; and information obtained by or given to the
disclosing party about or belonging to third parties.
23. ARBITRATION. In the event of any dispute arising out of or related to this
Agreement, such dispute shall be resolved by arbitration in New York, New
York, under the rules of the American Arbitration Association then
obtaining.
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24. OFFSET PROVISIONS. Notwithstanding any other provisions of this Agreement
or any other agreement referenced herein or contemplated hereby, in the
event Seller becomes obligated to pay sums to Purchaser or any of the
documents or agreements referenced herein or contemplated hereby (whether
as a result of indemnity, breach of contract or otherwise), Purchaser shall
be entitled to, and shall have the right to, reduce and offset payments due
pursuant to this Agreement or any of the documents or agreements referenced
herein or contemplated hereby.
25. ADJUSTMENT OF PURCHASE PRICE. The purchase price shall be adjusted on the
Closing Date (i) to reduce the purchase price by the amount allocated to
any damaged or destroyed Assets; (ii) to account for a proration of
personal property taxes on the Assets and for any deposits held by Seller
on the Closing Date; and (iii) to pay the Seller the amount of any utility,
rental and similar deports of Seller held by others that are transferred to
Purchaser. Three (3) business days prior to the Closing Date, Seller will
provide Purchaser with a statement of adjustments showing all proposed
adjustments to the purchase price, which statement of adjustments will
include all reasonable back up documentation for the proposed adjustments.
Purchaser and Seller will work to finalize all required adjustments prior
to the Closing Date. Nothing in this Section shall limit the rights to
terminate this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the date first
above written.
SELLER:
By: /s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx, M.D.
PURCHASER:
STERNCO MANAGEMENT, INC.
As authorized representative of Oak Tree
Medical Systems, Inc.
By: /s/ XXXX XXXXXXXXX
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
By: /s/ XXXX XXXXXXXX
------------------------------------
Xxxx Xxxxxxxx
Secretary
Oak Tree Medical Practice, P.C.
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