Exhibit 10.13
AGREEMENT OF SALE
THIS AGREEMENT, made on the 16th day of July, 1998, is by and among OAK
TREE MEDICAL MANAGEMENT, INC. and OAK TREE MEDICAL PRACTICE, P.C., each with an
address at c/o Oak Tree Medical Systems, Inc., Attn: Xx. Xxxxx Xxxxxx, 00000
Xxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxx 00000 (collectively the "Seller") and
NESCONSET SPORTS, INC., a New York corporation with offices at c/o SMR
Management Corp., 0000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000
(the "Purchaser").
W I T N E S S E T H :
WHEREAS, the Seller operates physical therapy professional practices
(the "Business") located at (i) 000 Xxxx 000xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "West 000xx Xxxxxx Premises") and (ii) 000-00 Xxxxxx Xxxxxxx Xxxxxxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 (the "Flushing Xxxxxxxx")(xxx Xxxx 000xx Xxxxxx
Premises and the Flushing Premises hereinafter collectively the "Premises"); and
WHEREAS, the Seller has agreed to sell and the Purchaser has agreed to
purchase certain assets of the Business owned by the Seller upon the terms and
conditions hereinafter set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereunder, the parties hereby mutually agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale. At the Closing (as defined below) and upon the
terms and conditions hereinafter set forth, Seller shall sell, assign, transfer,
convey and deliver to Purchaser, and Purchaser shall purchase from Seller, all
of Seller's right, title and interest in certain assets of the Business as
conducted on the Premises, as of the Closing Date, to the extent described in
this Section 1.1 (the "Purchased Assets"), except those assets specifically
excluded pursuant to Section 1.2 hereof:
(a) The exclusive right to use the following telephone numbers of the
Business: 212-666-4435; 718-460-8400; and 718-961- 5224.
(b) All of Seller's right, title and interest in and to all managed
care contracts of Seller set forth on Schedule 1.1(b) annexed hereto.
(c) All of Seller's right, title and interest in and to the various
physical therapy and sports rehabilitation equipment, ancillary equipment and
other personal property
(including, without limitation, furniture, fixtures and office equipment) all as
described on Exhibit "A" hereto (collectively, the "Equipment").
(d) All of Seller's right, title and interest in and to all leases,
licenses, concessions, service contracts and other agreements affecting the
premises used by the Seller in the Business (the "Premises") and/or the Business
itself, including, without limitation, the instruments set forth on Exhibit "B"
hereto.
(e) All of the Seller's right, title and interest in and to the trade
names "Parkside Physical Therapy," "Oak Tree Queens," and any variant thereof.
(f) All of the Seller's right, title and interest (and the right, title
and interest of each affiliate of the Seller) in and to any and all agreements
restricting the ability of Xxxx Xxxxxxxx to compete with the Seller (and any
such affiliate).
In addition, at the Closing, the Seller shall cause to be transferred
to such entity or entities designated by the Purchaser (i) all goodwill related
to the Business, and (ii) all active and inactive patient lists and patient
charts of the Seller.
1.2 Retained Assets. Seller shall retain, and the Purchased Assets
shall not include the following assets: (i) all assets of Seller not used in, or
related to, the Business; and (ii) all of Seller's cash on hand, on deposit,
cash in banks, cash equivalents, bank and mutual fund accounts, and accounts and
notes receivable.
1.3 Purchase Price. The price of the Purchased Assets and the
Noncompetition Agreement set forth in Article IV hereof, shall be $375,000 (the
"Purchase Price"). The Purchase Price shall be paid to Seller at the Closing by
federal funds wire transfer to one or more accounts designated by Seller. It is
acknowledged and agreed by the parties hereto that certain equipment described
on Exhibit A is subject to certain leases the ("Equipment Leases"). The Seller
shall cause the lessee's obligations under said leases to be satisfied in full
at or before the Closing (and may instruct the Purchaser to wire a portion of
the Purchase Price to the lessors thereof in satisfaction of said obligations),
so that the Purchaser shall obtain good and marketable title to the equipment
covered by said leases, free and clear of all liens, claims and encumbrances
whatsoever.
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1.4 Purchase Price Allocation. The Purchase Price shall be
allocated as follows:
Allocation
Physical therapy and office
equipment $ 150,000
Covenant not to Compete $ 25,000
Goodwill $ 200,000
1.5 Assumption of Liabilities. Purchaser shall not assume any
liabilities or obligations of Seller whatsoever except the office leases for the
Premises.
1.6 Closing. The closing of the transactions to be effected hereunder
(the "Closing") will be held at the offices of Davidoff & Xxxxxx LLP, 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx at 3:30 P.M. on July 16, 1998. The date
and time at which the Closing occurs is sometimes hereinafter referred to as the
"Closing Date").
1.7 Deliveries and Proceedings at Closing. At the Closing:
(a) Premises Leases. The Seller shall deliver to the Purchaser valid
assignments of leases for the West 000xx Xxxxxx Premises and the Flushing
Premises (in each case without amendment), in each case accompanied by written
consent of the landlord with respect to such assignment, together with landlord
waivers in the form annexed hereto as Exhibit 1.7, all in such form as shall be
acceptable to the Purchaser in its discretion. The Purchaser shall reasonably
cooperate in executing and delivering to the Seller assignments of the leases
for the Premises and the aforementioned landlord waivers.
(b) Deliveries by Seller. Seller will deliver or cause to be delivered
to Purchaser a xxxx of sale in the form annexed hereto as Exhibit "C", together
with such other instruments of assignment with respect to the Purchased Assets
as the Purchaser and its counsel shall request.
1.8 Regarding Certain Consents. Nothing in this Agreement shall be
construed as an attempt to assign any contract, agreement, permit, franchise, or
claim included in the Purchased Assets which is by its terms or in law
nonassignable without the consent of the other party or parties thereto, unless
such consent shall have been given, or as to which all the remedies for the
enforcement thereof enjoyed by Seller would not, as a matter of law, pass to
Purchaser as an incident of the assignments provided for by this Agreement. In
order, however, to provide Purchaser the full realization and value of every
contract, agreement, permit, franchise and claim of the character described in
the immediately preceding sentence, Seller agrees
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that on and after the Closing Date, it will, at the request and under the
direction of Purchaser, in the name of Seller or otherwise as Purchaser shall
specify, take all reasonable action (including without limitation the
appointment of Purchaser as attorney-in-fact for Seller where reasonably
appropriate) and do or cause to be done all such things as shall in the
reasonable opinion of Purchaser or its counsel be necessary and proper (a) to
assure that the rights of Seller under such contracts, agreements, permits,
franchises, and claims shall be preserved for the benefit of Purchaser and (b)
to facilitate receipt of the consideration to be received by Seller in and under
every such contract, agreement, permit, franchise, and claim, which
consideration shall be held for the benefit of, and shall be delivered to,
Purchaser, provided, however, that no undertaking of Seller under this Section
1.8 shall require Seller to pay any amounts or provide any consideration not
otherwise contemplated by this Agreement. Nothing in this Section shall in any
way diminish Seller's obligations hereunder to obtain all consents and approvals
and to take all such other actions prior to or at Closing as are necessary to
enable Seller to convey or assign valid title to all the Purchased Assets to
Purchaser.
1.9 Maintenance of Managed Care Contracts. From the Closing Date until
such date as the managed care contracts of Seller set forth on Schedule 1.1(b)
hereto have been transferred to Purchaser or Purchaser's designee, and said
managed care plans have accepted Purchaser or its licensed designee as a
provider hereunder, Seller shall continue to provide billing and collection
services for said managed care plans under Seller's tax identification number;
provided, however, that Purchaser shall perform all administrative and clerical
functions with respect to such billing and collection. Purchaser shall cooperate
with the Seller to mitigate any tax effects on the Seller arising out of the
operation of this Section 1.9.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents, warrants, covenants and agrees that:
2.1 Organization, Good Standing and Authority. Oak Tree Medical
Practice, P.C. is a professional corporation duly organized, validly existing
and in good standing under the laws of the State of New York. Oak Tree Medical
Management, Inc. is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York. Seller has full power and
authority to own the Purchased Assets and occupy the Premises, to conduct its
Business as it is now being conducted, and to enter into and perform this
Agreement and all other agreements and documents executed or delivered or to be
executed or delivered by Seller in connection herewith. Seller's execution,
delivery and performance of this Agreement and all other agreements and
documents executed and delivered by Seller
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in connection herewith have been duly authorized by all necessary corporate
action of Seller. This Agreement has been duly executed and delivered by Seller,
and this Agreement and all other agreements and documents executed or delivered
by Seller in connection herewith are (or when executed and delivered by Seller
will be) legal, valid and binding obligations of the Seller, enforceable in
accordance with their respective terms.
2.2 Financial Statements. Seller has delivered to Purchaser a balance
sheet and income statement of the financial operations of the Business as of May
31, 1998 (the "Financial Statement"). The Financial Statement is accurate in all
material respects as of the date thereof, is in accordance with the books and
records of Seller and fairly represents the financial position of the Business
as of the date thereof.
2.3 Absence of Material Adverse Change. Since the date of the Financial
Statement there has been no material adverse change in or to the Business or to
the operations, earnings, prospects or liabilities of the Business.
2.4 No Violation of Agreements. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated by this
Agreement and the compliance with the terms, conditions and provisions of this
Agreement by Seller, will not (a) conflict with or result in a breach of or
constitute a default (or an event which might, with the passage of time or the
giving of notice or both, constitute a default) under any of the terms,
conditions or provisions of any indenture, mortgage, loan or credit agreement or
any other agreement or instrument to which Seller is a party or by which it or
any of the assets of the Business may be bound or affected, or any judgment or
order of any court or governmental department, commission, board, agency or
instrumentality, domestic or foreign, or any applicable law, rule or regulation,
(b) result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon assets of the Business or give to others any
interests or rights therein, or (c) result in the termination of or loss of any
right (or give others the right to cause such a termination or loss) under any
agreement or contract constituting a part of the Purchased Assets to which
Seller is a party or by which it is bound. No representation is made herein as
to the assignability of any of Seller's managed care or other contracts. Seller
shall reasonably cooperate with Purchaser's efforts to obtain the consent of any
relevant third party to the assignment to Purchaser of any managed care
contracts relating to the Business.
2.5 True Conveyance of Information. All documents and other information
concerning Seller's Business, executed, delivered, conveyed or otherwise made
available to Purchaser by the Seller in connection with the transactions
contemplated by this Agreement were, to the best knowledge of the person(s)
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furnishing such information, true, correct and complete at the time of
execution, delivery or conveyance.
2.6 Title to Assets; Absence of Encumbrances. Seller has, and upon the
closing, Purchaser will have, good and marketable title to the Purchased Assets;
and none of the Purchased Assets is subject to any liens, mortgages, pledges,
security interests, restrictions, prior assignments, claims and encumbrances of
any kind whatsoever.
2.7 Litigation. To Seller's knowledge, there is no claim, action, suit,
inquiry, proceeding or investigation of any kind or nature whatsoever
(including, but not limited to, malpractice, tax, employment and payroll issues)
by or before any court, governmental or other regulatory or administrative
agency, commission or tribunal pending, threatened against or involving Seller,
the Business or the Purchased Assets, or which questions or challenges the
validity of this Agreement or any action taken or to be taken by Seller pursuant
to this Agreement or in connection with the transactions contemplated hereby
which has or would have a material adverse effect on Seller or Seller's ability
to perform hereunder.
2.8 Absence of Changes. The Seller has not, since the date of the
Financial Statement, entered into any transaction relating to the Business other
than in the ordinary course of business and consistent with past practices,
including but not necessarily limited to, any transaction relating to the (i)
borrowing of money, (ii) purchase, lease (as lessor or lessee), sale or
encumbering of assets or properties, (iii) cancellation, termination, amendment
or waiver of any material agreement or of any rights or claims arising
thereunder or otherwise, or (iv) payment or accrual of bonuses or special
compensation of any kind or an increase in the rate of any and all other forms
of compensation payable to officers, directors, employees, agents or independent
contractors.
2.9 Consents. No consent, approval or authorization of, or registration
or filing with, any person, including any governmental authority or other
regulatory agency, is required in connection with the execution and delivery of
this Agreement by Seller or the consummation of the transactions contemplated
hereby.
2.10 Taxes. Seller has (a) timely filed all tax returns, schedules,
declarations and tax-related documents required to be filed by any jurisdictions
to which it is or has been subject, (b) timely paid in full any taxes, interest
and penalties with respect thereto, subject to audit by the taxing authorities
by such jurisdiction, (c) made timely payment of the taxes required to be
deducted and withheld from the wages paid to its employees, and (d) otherwise
satisfied, in all material respects, all legal requirements applicable to Seller
and the Business with respect to all aforementioned obligations to taxing
jurisdictions. All
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tax returns filed by Seller correctly reflect in all material respects its
income, expense, deductions, credits, loss carryovers and the taxes due relating
to the Business, and are otherwise accurate and complete in all material
respects and have not been amended. For purposes of this Section 2.10, "tax" and
"taxes" shall include all income, gross receipts, franchise, excise, real and
personal property, and other taxes imposed by any federal, state, municipal,
local or other governmental agency, including assessments in the nature of
taxes.
2.11 Employee Benefit Plans/Employment Matters. Seller does not have
any bonus, profit sharing, pension, retirement, insurance, severance and other
similar arrangement or plan, including, without limitation, any plan to which
any provision of the Employment Retirement Income Security Act of 1974, as
amended, is applicable. No present or former employee of Seller has any valid
and enforceable claim against Seller (whether under federal or state law), under
any employment agreement, or otherwise, or on account of or for (a) overtime
pay, other than overtime pay for the payroll period containing the effective
date of this Agreement, (c) vacation or time off (or pay in lieu thereof), other
than earned in respect of the previous twelve months, or (d) any violation of
any state, ordinance or regulation relating to minimum wages or maximum hours of
work. Seller is not party to any collective bargaining agreement. A complete
list of the employees of Seller and their compensation is annexed hereto as
Schedule 2.11.
2.12 Broker Participation. No agent, broker or other person acting
pursuant to the authorization of Seller is entitled to any commission or
finder's fee in connection with the transactions contemplated by this Agreement
except Corporate Planning Services, Inc., whose commission shall be paid
entirely by the Seller at Closing pursuant to separate agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents, warrants, covenants and agrees that:
3.1 Organization, Good Standing and Authority. It is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York, and Purchaser has full power and authority to enter into and perform
this Agreement and all other agreements and documents executed or delivered by
Purchaser in connection herewith. Purchaser's execution, delivery and
performance of this Agreement and all other agreements and documents executed or
delivered by Purchaser in connection herewith have been duly authorized by all
necessary corporate action of Purchaser. This Agreement has been duly executed
and delivered by Purchaser and all other agreements and documents executed or
delivered by Purchaser in connection herewith are (or when executed and
delivered by Purchaser will
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be) legal, valid and binding obligations of Purchaser enforceable in accordance
with their respective terms.
3.2 No Interference. Purchaser is not aware of any state of facts which
would prevent or impede completion of the transactions contemplated hereunder.
3.3 Consents. No consent, approval or authorization of, or registration
or filing with, any person, including any governmental authority or other
regulatory agency, is required in connection with the execution and delivery of
this Agreement by Purchaser or the consummation of the transactions contemplated
hereby.
ARTICLE IV
NON COMPETITION
4.1 Non Competition Agreement. Except as provided herein for a period
of three (3) years from the date hereof, neither Seller nor any affiliate (as
hereinafter defined) shall:
(a) directly or indirectly invest in, have any other ownership interest
in, or otherwise participate with or in, as an officer, employee, director,
shareholder or partner, any person or entity that is in a Competitive Business
(as hereinafter defined) located (i) in the case of the West 000xx Xxxxxx
Premises, in an area bounded on the north by 150th Street, on the south by 50th
Street, "river to river," and (ii) in the case of the Flushing Premises, within
a five (5) mile radius thereof (in each case, the "Restricted Area");
(b) directly or indirectly solicit any person or enterprise for any
purpose directly related to a Competitive Business; and
(c) directly or indirectly solicit, employ or interfere with or attempt
to entice away from Purchaser any person who is then (or was at any time within
six months prior to the time of such employment, engagement or offer thereof) an
employee or independent contractor of Purchaser, except employees terminated by
the Purchaser.
4.2 Limited Exceptions; Definitions.
(a) Nothing contained in Section 4.1 shall prohibit the Seller or any
Affiliate from acquiring or holding less than seven (7%) percent of the
outstanding common stock or other publicly traded security in a publicly traded
company in a Competitive Business which is listed on a national securities
exchange or quoted on a national quotation service.
(b) As used herein, "Affiliate" means any person, partnership,
corporation or other entity which directly or
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indirectly through one or more intermediaries controls or is controlled by, or
under common control with, the Seller. As used herein, Competitive Business
means any person or entity that either (i) is in the principal business of
providing or furnishing physical therapy services in the Restricted Area as a
physical therapy center, or (ii) in the principal business of furnishing
physical therapy equipment to such person or entity described in subclause (i)
hereof in the Restricted Area.
4.3 Acknowledgement. Seller acknowledges that the provisions of Section
4.1 are necessary for the protection of Purchaser and that such provisions are
reasonable under the circumstances including in particular the Purchase Price
paid by Purchaser in consideration of the obligations of Seller hereunder. In
the event that any provision of Section 4.1, including any sentence, clause or
part thereof, shall be deemed contrary to law or invalid or unenforceable in any
respect by a court of competent jurisdiction, the remaining provisions shall not
be affected, but shall, subject to the discretion of such court, remain in full
force and effect and any invalid and unenforceable provisions shall be deemed,
without further action on the part of the parties hereto, modified, amended and
limited to the extent necessary to render the same valid and enforceable.
4.4 Remedies. Seller agrees that any breach of Section 4.1 hereof will
cause Purchaser substantial and irreparable damage and therefore, in the event
of any such breach, in addition to such other remedies which may be available at
law or in equity, Purchaser shall have the right to seek specific performance
and injunctive relief.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification by Seller. Seller shall indemnify, defend and hold
harmless Purchaser, promptly upon demand at any time and from time to time,
against any and all losses, liabilities, claims, actions, damages and expenses,
including without limitation, reasonable attorneys' fees and disbursements
(collectively, "Losses"), arising out of or in connection with any of the
following: (a) All liabilities, debts, obligations and commitments of the Seller
of any nature (including without limitation those arising out of or relating to
the operation of the Business prior to the Closing), whether accrued, absolute,
contingent or otherwise, attributable to any state of facts or event existing or
occurring on or before the Closing Date, and any claim or demand by a third
party (whether or not successful) to cause or require the Purchaser to pay or
discharge any debt, obligation, liability or commitment referred to in this
clause (a); (b) any breach or default in the performance by Seller of any
agreement made by Seller under this Agreement, (c) any breach of warranty or
representation made by Seller under Article II hereof, and (d) any action, suit,
proceedings, compromise,
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settlement, assessment or judgment arising out of or incident to any of the
matters indemnified against in this Section 5.1.
5.2 Indemnification by Purchaser. Purchaser shall indemnify, defend and
hold harmless Seller, promptly upon demand at any time and from time to time,
against any and all losses, liabilities, claims, actions, damages and expenses,
including without limitation, reasonable attorneys' fees and disbursements
(collectively, "Losses"), arising out of or in connection with any of the
following: (a) the use of Seller's Medicare provider number; (b) the obligations
assumed by the Purchaser hereunder; and (c) any breach of warranty or
representation made by Seller under Article III hereof.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Utilities and Telephone Adjustments. The operation of the Business
and the expenses attributable thereto up to 11:59 P.M. on the day before the
Closing Date shall be for the account of Seller and thereafter shall be for the
account of Purchaser. Prior to the Closing, Seller will notify such utilities
that exist with respect to the sale of the Purchased Assets. To the extent that
service therefor cannot be terminated and reconnected in Purchaser's name,
Seller and Purchaser will pro rate Seller's cost of electricity, if any, and
telephone charges for the period prior to the Closing Date. In the event that
any bills for the above shall not be available at the Closing Date, the parties
agree to pro rate the same within five days following either party's receipt of
a xxxx for any such utilities, any portion of which is payable by the other.
Deposits on such utilities of Seller shall be the sole property of Seller and
Purchaser shall place its own deposits with regard thereto. In addition, Seller
agrees and covenants to pay all other amounts relating to the Assumed
Liabilities arising or attributable to operations prior to the Closing Date.
6.2 Sales Tax. Seller shall pay the cost of any and all sales taxes,
including bulk sales tax, applicable to the transactions covered by this
Agreement. Seller shall remit said sales tax to the proper New York tax
authorities at the time of Closing.
6.3 Confidentiality. Seller acknowledges that it possesses confidential
information and trade secrets regarding the Business and the Premises, which,
together with the Purchased Assets and all additional information conveyed to
Purchaser pursuant to this Agreement (collectively, the "Information"),
constitutes valuable assets. Accordingly, Seller shall not, at any time
following the Closing, disclose to anyone, use or convey the Information or any
part thereof other than for the particular purposes necessary to receive
professional advice with respect to the Information or in connection with the
preparation and filing of any documents, tax
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returns or other disclosure required by law. Seller's covenants under this
Section 6.3 as pertaining to all Information respecting the Business of the
Purchaser, shall survive the termination of this Agreement.
6.4 Costs and Expenses. Seller and Purchaser will each pay their own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including all legal fees.
6.5 Services of Xxxxxxx Xxxxxxx. The Seller shall allow Xxxxxxx Xxxxxxx
to work full time at the Premises for a period of three (3) weeks after the
Closing. The Seller acknowledges that the Purchaser has the right to purchase
the assets of the Seller's physical therapy located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxx, Xxx Xxxx (the "Bronx Facility"). If for any reason the Purchaser does not
purchase the Bronx Facility, then the Seller shall allow Xxxxxxx Xxxxxxx to work
half time for an additional six weeks at the Premises following the expiration
of said initial three-week period.
6.6 Services of Xxxx Xxxxxxx. The Purchaser shall allow the Seller to
work with Xxxx Xxxxxxx from his arrival at the Premises until 10:00 a.m. on each
of the days of July 22, July 23 and July 24, 1998.
6.7 Payroll. The Seller be responsible for all payroll and related
taxes for all of its employees currently working at either or both of the
Premises through the close of business on July 16, 1998 and shall pay said
employees all unpaid wages for all periods through and including the close of
business on said date no later than Monday, July 20, 1998.
6.8 Use of Alcove Space. The Purchaser shall allow the Seller to use
the alcove space currently occupied by the Seller at the Queens Premises until
the close of business on the 90th day following the date hereof.
ARTICLE VII
COVENANTS
7.1 Access to Information. Purchaser shall have the right to conduct
due diligence reviews upon the business, books, records and operations of
Seller. Seller shall give the other reasonable access during normal business
hours to the assets, properties, materials, books and records necessary to
conduct such review until 5:00 p.m. on the date prior to the Closing Date (the
"Due Diligence Deadline").
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ARTICLE VIII
TERMINATION; CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE
8.1 Termination. This Agreement may be terminated by the Purchaser by
written notice of termination to the Seller by the Due Diligence Deadline in the
event that the Purchaser, in its sole discretion, determines not to proceed
based upon its examination of the business, books, records and operations of
Seller.
8.2 Conditions to Purchaser's Obligations to Close. The Purchaser's
obligations to close hereunder shall be subject to the delivery by the Seller to
the Purchaser of the following items on or before the Closing Date, each in form
and substance satisfactory to the Purchaser in its sole and absolute discretion
and each fully executed by all parties thereto except the Purchaser (or the
Purchaser's designee):
(a) An assignment to the Purchaser (or, as the Purchaser shall direct,
the Purchaser's designee) of all contracts between the Seller (or any or all of
them and any affiliate thereof) and Catholic Medical Center of Brooklyn and
Queens, Inc. (the "CMC Contract");
(b) Assignments of the leases for the Premises consented to by the
landlords thereof; and
(c) Landlord waivers in the form annexed hereto as Schedule 1.7 with
respect to each of the leases described in subsection (b) above.
In the event the conditions described in this Section 8.2 are not fulfilled, the
Purchaser may terminate this Agreement at any time on or after the Closing Date
by notice to the Seller. Nothing contained in this Section 8.2 shall be
construed to waive or limit the Purchaser's right to terminate this Agreement
pursuant to Section 8.1 hereof.
8.3 Effect of Termination. In the event that this Agreement is
terminated pursuant to Section 8.1 or Section 8.2 hereof, all further
obligations of the parties under this Agreement shall be terminated without
further liability of any party to the other, provided that no such termination
shall relieve the Seller from liability for its willful breach of this
Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Further Assurances. The parties shall cooperate and take such
actions, and execute such other documents, at the
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Closing or subsequently, as either may reasonably request in order to carry out
the provisions or purpose of this Agreement.
9.2 Entire Understanding. This Agreement and all other instruments and
documents executed in connection herewith, contains the entire understanding and
agreement between the parties. Except as may otherwise be provided by this
Agreement, no change, discharge, modification or waiver of any provision hereof
shall be of any force or effect unless it is in writing and signed by all of the
parties hereto.
9.3 Choice of Law. This Agreement shall be governed and interpreted,
and all rights and obligations of the parties hereunder, shall be governed and
determined, in accordance with the laws of the State of New York, without regard
to its conflict of law rules. Any litigation arising hereunder shall be
commenced and conducted in the United States District Court for the Southern
District of New York, or the state courts located in such District.
9.4 Notice. Any notice or other communication to be given hereunder
shall be deemed to have been properly given if in writing and if sent by
certified mail or registered mail, return receipt requested, postage prepaid or
overnight mail, to the parties at their addresses as follows:
If to Seller:
Oak Tree Medical Management, Inc.
163-03 Xxxxxx Xxxxxxx Expressway
Xxxxxxxx, Xxx Xxxx 00000
Telephone No.:
Facsimile:
After the Closing:
c/o Oak Tree Medical Systems, Inc.
Attn: Xx. Xxxxx Xxxxxx
00000 Xxxxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxx 00000
With a copy to:
Xxxxxxxxx X. Xxxx, Esq.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
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If to Purchaser:
NESCONSET SPORTS, INC. [or designee]
c/o SMR Management Corp.
0000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. XxXxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx, Esq.
Davidoff & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
9.5 Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors in interest and assigns,
provided however, that this Agreement may not be assigned by any party without
the prior written consent of the other party to the Agreement.
9.6 No Waiver. The waiver of any breach of any of the terms or
conditions of this Agreement shall not be deemed to constitute a waiver of any
other breach or of the same or any other terms or condition contained in this
Agreement. The invalidation of any of the provisions of this Agreement shall not
affect the validity of any other provision hereof. In the event that any
provision is declared to be invalid, then this Agreement shall be deemed not to
have contained such provision and the balance of this Agreement shall continue
unaffected thereby. By this clause, the parties shall not be deemed to have
intentionally included any invalid provision. Under no circumstance shall the
parties be deemed or construed by operation of law or otherwise, to have
abandoned this Agreement or any of the terms hereof, unless such abandonment
shall be by a written instrument signed by all of the parties hereto.
9.7 Counterparts. This Agreement may be executed in any manner of
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed as an original, but all of which together shall
constitute one and the same document.
9.8 Prior Agreements. This Agreement supersedes any prior agreements
made among any of the parties hereto, if any, with respect to the subject matter
hereof, and all such prior agreements are hereby terminated.
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9.9 Captions. Headings are for convenience only and shall not be
considered in any manner in connection with any interpretation of this
Agreement.
9.10 Survival. Unless otherwise stated, the representations and
agreements of the parties hereto shall survive the Closing hereof and shall bind
the parties hereto and their heirs, successors in the interest, legal
representatives and assigns.
9.11 Obligations Joint and Several. Each and all of the obligations,
duties, representations, warranties and covenants of the seller hereunder are
joint and several, it being the intent of the parties hereto to confer upon the
Purchaser the maximum rights and remedies possible.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
OAK TREE MEDICAL MANAGEMENT, INC.
By: /s/ XXXXXXXXX X. XXXX
--------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Acting Secretary
OAK TREE MEDICAL PRACTICE P.C.
By: /s/ XXXXXXXXX X. XXXX
--------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Acting Secretary
NESCONSET SPORTS, INC.
By: /s/ XXXXX X. XXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE UNDERSIGNED HEREBY UNCONDITIONALLY
GUARANTEES THE OBLIGATIONS OF THE SELLERS:
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ XXXXXXXXX X. XXXX
--------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Acting Secretary
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ATTACHMENTS:
Exhibit A - Equipment
Exhibit B - Leases, Licenses and Other Agreements
Exhibit C - Form of Xxxx of Sale
Schedule 1.1(b) - Managed Care Contracts
Schedule 1.7 - Form of Landlord Waiver
Schedule 2.11 - Employees of Seller
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