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AGREEMENT
This is an agreement (the "Agreement"), dated September 4, 1998, between
Medical Technology Laboratories, Inc. ("MTL"), Community Clinical Laboratories,
Inc. ("CCL"), Xxxxx XxXxxxx, Xx. and Xxxxx XxXxxxx, Xx. (the "McKeowns") and
Xxxxxxx Xxxx ("Gepp").
Background
On August 4, 1998, the parties entered into the Asset Acquisition Agreement
(the "Acquisition Agreement"), a copy of which is attached as Exhibit A, in
which MTL agreed to acquire certain assets of CCL. In Section 3(e) of the
Acquisition Agreement, CCL was required to decide whether MTL would act as
custodian for its accounts receivables and liabilities. Pursuant to this
provision of the Acquisition Agreement, CCL decided that it desired MTL to act
as the custodian of its accounts receivables and MTL agreed to act as custodian.
Accordingly, in consideration of the mutual covenants and agreements set forth
below, the parties agree as follows:
Terms
Appointment. CCL desires to appoint MTL as the custodian of its accounts
receivables and MTL agrees to act as the custodian of CCL's accounts
receivables.
Duties. MTL will use its reasonable efforts to collect CCL's accounts
receivables and will use the proceeds of these collection efforts to pay CCL's
liabilities. MTL will provide an employee experienced in the collection of
accounts receivable for a minimum of 40 hours per week for a period of 90 days
beginning August 31, 1998. After the 90 day-period, the parties agree to
negotiate a new agreement to provide for additional services that may be
required of MTL relating to the uncollected accounts receivables.
Payment of Costs. CCL and the McKeowns agree that they will reimburse up to
$50,000 of the cost of documented postage and supplies. This reimbursement
amount will be deducted from the purchase price payment as set forth in Section
3(a) of the Acquisition Agreement; provided, however, that the maximum amount
that may be used to reduce a single purchase price payment to reimburse
documented costs will be $25,000, beginning with the second payment in 1999.
Term. MTL agrees that it will continue as the custodian under this
Agreement until the earlier of: (a) the expiration of the Acquisition Agreement;
(b) the payment of the maximum purchase price of $2,500,000; or (c) the mutual
agreement of the parties to terminate this Agreement.
Duties of Gepp. MTL appoints Gepp to negotiate with vendors, receive funds
and make disbursements on behalf of CCL as directed by MTL. CCL and MTL agree
that Gepp, a consultant for MTL, is empowered to negotiate the amounts to be
paid to vendors on the list, attached to this Agreement as Exhibit B, and
prescribe a period within which vendors must make their payments. Gepp must use
reasonable efforts to negotiate with the vendors.
Gepp agrees that, if he is indicted, is convicted, pleads guilty to, or is
formally charged with a "healthcare crime," whether a misdemeanor or felony, MTL
may terminate any relationship with Gepp and may discontinue any and all
payments to Gepp that may be due under this Agreement. For purposes of this
section, a "healthcare crime" means any action that results in exclusion,
whether voluntary or involuntary, of Gepp from any federal or state healthcare
program, or otherwise would prohibit Gepp from being employed by or receive
payments from a company that participates in the Medicare or Medicaid program or
any other state or federal healthcare program.
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Method of Payment to Creditors. Payments to creditors pursuant to this
Agreement will be made first to secured creditors, then to unsecured creditors,
unless formally directed otherwise by any government agency or court of
competent jurisdiction.
Liability. Neither Gepp, MTL nor any of its affiliates, stockholders,
officers, employees or agents will be liable to CCL or the McKeowns for any
loss, liability, damage or expense arising out of or in connection with the
performance of services contemplated by this Agreement, unless such loss,
liability, damage or expense is a result of the willful misconduct of such
person. CCL agrees to indemnify and hold harmless MTL, its stockholders,
affiliates, officers, agents and employees against and from any and all loss,
liability, suits, claims, costs, damages and expenses, including reasonable
attorneys' fees, arising from MTL's performance under this Agreement, except as
a result of the willful misconduct of the person in question.
Independent Contractor Status. MTL and CCL agree that MTL will perform
services under this Agreement as an independent contractor, retaining control
over and responsibility for its own operations and personnel. Neither MTL nor
its officers, employees or agents will be considered employees or agents of CCL
as a result of this Agreement nor will any of them have authority to contract in
the name of or bind the Company by reason of this Agreement, except as the
parties may expressly agree in writing. Likewise, neither this Agreement nor any
conduct under this Agreement shall be deemed to create a relationship of
employer-employee, partnership, joint venture, or other common enterprise.
General Provisions.
Benefit and Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns. The
rights of the Seller may not be assigned. The rights of the Buyer may be
assigned to a subsidiary or affiliate of the Buyer, provided that any such
assignment shall in no way relieve the Buyer of its obligations and
responsibilities under this Agreement.
Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Florida.
Notices. All notices, requests, demands and other communications hereunder
shall be in writing, and shall be deemed to have been duly given if delivered by
overnight delivery service or hand delivered, addressed as follows:
If to the Buyer:
Medical Technology Laboratories, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx, President
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With a copy to:
Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to the Seller:
Community Clinical Laboratories, Inc.
0000 Xxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. XxXxxxx, Xx.
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxx, P.A.
0000 Xxxxx Xxxx Xxxxxxxx Xxxxxx, #000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx, Esq.
If to the Shareholders:
Xxxxx X. XxXxxxx, Xx.
000 Xxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
and
Xxxxx X. XxXxxxx, Xx.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Expenses. Except as otherwise provided in this Agreement, any expenses in
connection with this Agreement or the transactions contemplated in this
Agreement shall be paid for by the party incurring such expenses.
Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Headings. All paragraph headings are inserted for convenience only and
shall not modify or affect the construction or interpretation of any provision
of this Agreement.
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Amendment, Modification and Waiver. This Agreement may be modified,
amended, and supplemented by mutual written agreement of the parties, at any
time prior to the Closing. Each party may waive any condition intended to be for
its benefit. Each amendment, modification, supplement, or waiver shall be in
writing executed by both parties.
Entire Agreement. This Agreement represents the entire agreement between
the parties and supersedes all prior negotiations and discussions by and among
the parties in connection with this Agreement or its subject matter.
Disputes Regarding Purchase Price. In the event the Seller disputes any
calculation of the Purchase Price made under this Agreement and the parties are
unable to resolve this dispute within thirty days, then each party shall appoint
(within thirty days) an independent certified public accountant to rule upon the
dispute. If the two accountants are unable to resolve the dispute, they shall
appoint a third accountant, who shall have the final, nonappealable authority
over the dispute. The accountants shall award the costs of the dispute
resolution as they deem appropriate. IN WITNESS WHEREOF, the parties hereto have
executed this Agreement on the date set forth above.
BUYER:
MEDICAL TECHNOLOGY LABORATORIES, INC.
By:_______________________
Name: Xxxx X. Xxxxxx
Its: President
SELLER:
COMMUNITY CLINICAL LABORATORIES, INC.
By:_______________________
Name:_____________________
Its:______________________
SHAREHOLDERS:
__________________________
Xxxxx X. XxXxxxx, Xx.
__________________________
Xxxxx X. XxXxxxx, Xx.
CONSULTANT:
__________________________
Xxxxxxx Xxxx
