ASSET PURCHASE AGREEMENT
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This Asset Purchase Agreement (this "Agreement") is made and entered
into on January 1, 1996, by and between Central Diversey M.R.I., Inc., an
Illinois corporation ("Seller"), and C. D. Acquisition, Inc., an Illinois
corporation ("Purchaser").
WITNESSETH
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WHEREAS, Seller is in the business of operating a magnetic resonance
imaging ("MRI") center in Chicago, Illinois (the "Center") and providing MRI
services on an outpatient basis; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase
substantially all of Seller's assets used in connection with its business
(the "Business"), wherever located, on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and understandings of the parties hereto set forth herein, and other good
and valuable consideration, the receipt and sufficiency of such consideration
is hereby acknowledged, the parties hereto agree as set forth in this
Agreement.
1. Purchase and Sale of Assets.
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a. At the Closing (hereinafter defined), Seller shall sell, transfer
and assign to Purchaser and Purchaser shall purchase from Seller, all of
Seller's right, title and interest in and to Seller's assets, whether real,
personal or mixed, tangible or intangible, used in connection with Seller's
business, wherever located (collectively the "Assets"). The Assets shall
include, but shall not be limited to:
(1) Seller's cash deposit relating to the MRI equipment totalling
$80,000 held by DVI Financial Services, Inc.;
(2) A certificate of deposit securing a letter of credit in the amount
of $40,000, plus accrued interest thereon held by Commercial National Bank
of Berwyn;
(3) Seller's prepayments, advances and subscriptions;
(4) All machinery and equipment furniture, fixtures, leasehold
improvements, tools, vehicles, test equipment, computer hardware and
software and other equipment owned or used by Seller (collectively, the
"Fixed Assets") set forth in Exhibit A attached hereto;
(5) Seller's leasehold interest in and to that certain store Lease
dated November 8, 1995, by and between Xx. Xxxxx X. Xxxxxxxx, M.D. as
landlord (the "Landlord"), and Seller, as tenant (the "Center Lease"),
which assignment shall be
subject to the Landlord's prior written consent, leasehold improvements,
inventory, furniture;
(6) Cash, cash equivalents existing as the Closing Date (hereinafter
defined); except the Assets shall not include any rights to payments for
services rendered prior to December 31, 1995 whether reflected on Seller's
financial statements, or not;
(7) Such of Seller's books and records as are reasonably required by
Purchaser to operate the Center; and
(8) All manufacturer's warranties to the extent assignable, if any,
relating to Seller's equipment or equipment leased by Seller.
2. Purchase Price and Assumption of Liabilities.
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a. Purchase Price. In consideration for the purchase of the Assets
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set forth herein, Purchaser agrees to pay, at Closing, $80,000 in cash and
10,000 unregistered shares of NMR common stock (the "Shares"), which are
subject to a two (2) year holding requirement (NASDAQ - National Market Symbol
- NMRR) ("Purchase Price"). The parties hereto expressly acknowledge and
warrant that the Shares shall be distributed by Seller to Xxxxx Xxxxxxxx, a
20% shareholder of Seller, upon consummation of the transaction described
herein. Xxxxx Xxxxxxxx shall have the right to put the Shares back to NMR at
$3.50 per share within 90 days period after expiration of the two year holding
period if NMR common stock does not trade on NASDAQ-National Market System (or
such other market exchange on which the Company's securities are then listed)
at or above the foregoing price during such 90 day period.
b. Assumed Liabilities. As of Closing, Purchaser agrees to assume
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only the following liabilities:
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(1) Seller's expenses listed next to the various vendors on Exhibit B
not to exceed $90,000;
(2) Seller's liabilities, obligations and debts under the debt, lease
agreements and service contracts set forth on Exhibit C attached hereto;
(3) Seller's liabilities, obligations and debts under the Center
Lease; and
(4) Other such liabilities of Seller that Purchaser elects to assume
in writing (collectively, the "Assumed Liabilities").
Purchaser shall not be liable for (i) any claims asserting that
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Seller's assignment and Purchaser's assumption of the Assumed Liabilities was
impermissible; or (ii) rights or remedies claimed by third parties under any
of the Assumed Liabilities which broaden or vary the rights
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and remedies such third parties would have had against Seller if the sale and
purchase of the Assets were not to occur.
Purchaser shall reimburse Seller for all expenses incurred in
connection with the Purchaser's Business paid by Seller prior to Closing.
c. Excluded Liabilities. Except as expressly provided to the contrary
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in Section 2b, under no circumstance shall Purchaser be obligated to pay or
assume, and none of the Assets shall be or become liable for or subject to, any
liability of Seller, including, without limitation, the following, whether fixed
or contingent, recorded or unrecorded (collectively, the "Excluded
Liabilities"):
(1) indebtedness and other obligations or guarantees of Seller,
including, without limitation, current liabilities of Seller and short-term
and long-term indebtedness;
(2) liabilities or obligations, if any, for cost reporting periods
ending prior to, and including, Closing, arising under the terms of the
Medicare program, including recapture, and the Medicaid program, and under
any other third party payor programs which settle up on a basis other than
an individual claims basis. Seller shall have the right to appeal or settle
any matter, claim, liability with respect to Seller's Cost Reports or any
audit thereof. Seller shall have no obligations or responsibility with
respect to cost reports for periods after Closing;
(3) federal, state or local tax liabilities or obligations of Seller
in respect of periods prior to Closing or resulting from the consummation
of the transactions contemplated herein, including, without limitation, any
income tax, any franchise tax, any tax recapture, any sales and/or use tax,
any indigent care tax, any state and local recording fees and taxes which
may arise upon the consummation of the transactions contemplated herein and
any FICA, FUTA, workers' compensation taxes and any and all other taxes or
similar amounts due and payable as a result of the exercise by any of
Seller's employees (who elect or Purchaser elects prior to or as of Closing
not to become employees of Purchaser subsequent to Closing) of such
employees' rights to vacation, sick leave and holiday benefits accrued
while in the employ of Seller;
(4) liability for any and all claims by or on behalf of Seller's
employees relating to periods prior to Closing, including, without
limitation, liability for any pension, profit sharing, deferred
compensation, or any other employee health and welfare benefit plans,
liability for any EEOC claim, wage and hour claim, unemployment
compensation claim or workers' compensation claim, and liability for all
employee wages and benefits, including, without limitation, accrued
vacation, sick leave, holiday pay, severance pay and related taxes or other
liability related thereto in respect of Seller's employees;
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(5) liabilities or obligations arising as a result of any breach by
Seller at any time of any contract or commitment that is not assumed by
Purchaser;
(6) liabilities or obligations arising out of any breach by Seller
prior to Closing of any Contract (as hereinafter defined);
(7) any liability arising out of or in connection with claims for acts
or omissions relating to the ownership or operation of the Center or the
Assets which occurred prior to Closing;
(8) contracts and agreements that are not assumed by Purchaser;
(9) any debt, obligation, expense or liability of Seller arising out
of or incurred solely as a result of any transaction of Seller occurring
after Closing or for any violation by Seller of any law, regulation or
ordinance at any time;
(10) any obligation, judgment, expense or other liability arising out
of or in connection with any matter which is or should be disclosed on
Exhibit B;
(11) any accounts payable attributable to legal and accounting fees
and similar costs incurred by Seller that are directly related to the sale
of the Assets of Seller; and
(12) any other current payable of the type which has not been
historically accounted for by Seller as an "Account Payable", including any
payable related to compensation or fringe benefits for Seller's employees.
3. Closing. The closing of the transaction contemplated by this
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Agreement (the "Closing") shall occur on or before January 17, 1996 (the
"Closing Date") at the offices of Katten, Muchin & Zavis, Chicago, Illinois or
on such other date and at such other place as the parties may mutually agree.
The Closing shall be effective as of the close of business December 31, 1995
(the "Effective Date").
4. Seller's Deliveries at Closing. At the Closing, Seller shall
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deliver to Purchaser the following documents, in form and substance acceptable
to Purchaser:
a. A Xxxx of Sale in the form attached hereto as Exhibit D;
b. Subject to the Landlord's written consent, an Assignment
of Center Lease in the form attached hereto as Exhibit E;
c. An Assignment of Deposit for the cash deposit held by DVI
Financial Services, Inc. subject to the consent of DVI Financial Services,
Inc., in the form attached hereto as Exhibit F;
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d. Non-Competition Agreements in the form attached hereto as
Exhibits G and H;
e. An Opinion of Counsel from Seller's attorneys in the form
attached hereto as Exhibit I;
f. An Estoppel Certificate from the landlord for the Center Lease;
g. An order or other official document issued by a court of
competent jurisdiction dismissing Radiology Billing v. Central Diversey MRI
Center, Inc. (95-M1-156979); and
h. Such other documents, instruments and agreements as Purchaser may
reasonably request for the purposes of closing the transactions contemplated
by this Agreement and transferring the Assets to Purchaser.
5. Purchaser's Deliveries at Closing. At the Closing, Purchaser
---------------------------------
shall deliver to Seller the following documents, in form and substance
acceptable to Seller:
a. $80,000 in cash or certified funds.
b. 10,000 unregistered shares in the name of the Seller of common
stock of NMR of America, Inc. (the "Shares").
c. A Repurchase Agreement relating to the Shares in the form
attached hereto as Exhibit J.
6. Seller's Representations and Warranties. Seller hereby
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represents, warrants and covenants unto Purchaser as follows:
a. Organization and Good Standing. Seller is a corporation duly
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organized, validly existing, in good standing under the laws of the State of
Illinois and has all requisite corporate power and authority to own and use
its assets and to carry on its business as it is now being conducted.
b. Authorization. The Agreement is duly authorized, executed and
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delivered by Seller and constitutes a legal, valid and binding obligation of
Seller, enforceable in accordance with its terms. Seller is duly authorized to
execute all necessary documents pursuant to this Agreement for the sale of the
Assets to Purchaser.
c. No Violation. The execution, delivery and performance by Seller
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of this Agreement, and any documents, instruments and agreements which may
from time to time hereafter be executed and delivered by Seller to Purchaser
hereunder, shall not constitute a breach of any provision of applicable law or
contained in any agreement to which Seller is a party.
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d. Title to Assets. Except as disclosed on Exhibit K, Seller has
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good marketable right, title and interest in and to the Assets and is the sole
owner of the Assets, free and clear of all claims, liens, security interests,
encumbrances and rights of third parties.
e. Fixed Assets. Except as set forth on Exhibit L, all of the Fixed
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Assets are in good condition and repair, ordinary wear and tear excepted. The
locations of all of the Fixed Assets are listed on Exhibit M attached hereto.
f. Financial Statements. Seller has delivered to Purchaser true and
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accurate and complete copies of the financial statements of Seller the
"Financial Statements" listed on Exhibit N attached hereto. All of the
Financial Statements fairly present the financial condition of Seller as of
the dates thereof and the results of operation and cash flows of Seller for
the periods then ended.
g. No Adverse Change. Except as set forth on Exhibit O, since
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September 30, 1995, (i) there has been no material, adverse change in the
Business or in the relationship of Seller with any of their customers or
suppliers, (ii) Seller has not entered into any transaction outside the usual
normal and ordinary course of its business or suffered any damage, destruction,
change or loss involving the Assets or the Business, whether or not insured,
and (iii) Seller has not made any distribution to its shareholders, redeemed
or repurchased any shareholders interests or paid any indebtedness owing to,
or paid any other amount to, any of its shareholders or to any Person or
entity affiliated with Seller.
h. Permits, Licenses, etc. Seller holds all permits, licenses,
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franchises, certificates, registrations, approvals or authorizations by or of
governmental authorities or third parties necessary or desirable for the use
of the Assets, the occupancy of the Leased Real Property (as defined below),
or operation of the Business as now being conducted or as now contemplated to
be conducted by Seller, including, without limitation, all certificates of
need and certificates of exemption, all of which are in full force and effect
and are identified on Exhibit P attached hereto (the "Permits") and copies of
which have been delivered to Purchaser. Seller has not received notice of any
cancellation or revocation of any of the Permits or to the effect that any
of the Permits may not be renewed.
i. Consents. No consent of any third party and no consent,
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approval, order or authorization of, or registration, declaration or filing
with, any governmental authority is or was required for the transactions
contemplated herein.
j. Compliance with Laws. Seller has complied in all material
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respects with all applicable laws, statutes, ordinances, rules, regulations
and orders of governmental authorities and Seller has not received notice
asserting any violation thereof or non-compliance therewith.
k. Litigation. There is no claim, demand, suit, action,
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arbitration or other administrative proceeding or investigation pending or
threatened against Seller, or to which Seller is otherwise a party, or which
may affect Seller, the Business or any of the Assets, before
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any court or any governmental authority; nor do Seller know of any basis for
any such claim, demand, suit, action, proceeding or investigation. Seller is
not engaged in any legal action to recover monies due it or for damages
sustained by it. Exhibit Q sets forth all citations, violations, inspections
or investigations by any governmental authority with respect to Seller or the
Business during the three-year period prior to the date hereof, together with
a description of the status and/or resolution thereof.
1. Environmental Laws. Xx. Xxxxxxxx will provide a certificate
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stating the following:
(i) Seller is in compliance with all applicable
Environmental Laws (as hereinafter defined), and Seller has not
received notice of any violation or alleged violation of any such
Environmental Laws. Seller possesses all required permits,
licenses, certificates and registrations required under
applicable Environmental Laws, and has filed all notices or
applications required thereby, which, if not possessed or filed,
could result or has resulted in material adverse consequences for
Seller or Purchaser.
(ii) As used herein, "Environmental Laws" mean all federal,
state or local statutes, laws, codes, rules, regulations,
ordinances, orders, standards, permits, licenses or requirements
(including consent decrees, judicial decisions and administrative
orders), presently in force, as amended or reauthorized,
pertaining to the protection, preservation, conservation or
regulation of the environment, or imposing requirements relating
to public or employee health and safety, including without
limitation, the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9601 et
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seq., the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Section 6901 et seq., the Emergency Planning
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and Community Right to Know Act ("Right-to-Know Act"), 42 U.S.C.
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Section 11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C.
---
Section 7401 et seq., the Federal Water Pollution Control Act
("Clean Water Act"), 33 U.S.C. Section 1251 et seq., the Toxic
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Substances Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.,
----
the Safe Drinking Water Act, 42 U.S.C. Section 300F et seq., and
the Occupational Safety and Health Act ("OSHA"), 29 U.S.C.
----
Section 651 et seq.
m. Insurance Policies. Exhibit R attached hereto contains a true and
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complete list of all policies of insurance currently owned or maintained by
Seller with respect to the Business or the Assets. Said list includes policy
numbers, identity of insurers and a description of the type and amount of
coverage under each such policy. All such policies are in full force and
effect, and Seller has not received notice of cancellation or intent to cancel
with respect thereto or is aware of any basis for such action.
n. Taxes. Seller has filed all federal, state, municipal, local and
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foreign tax returns which it is required to have filed as the Closing, and
such returns are complete and correct. Seller has paid or made adequate
provision for the payment of all taxes, interest, penalties,
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assessments or deficiencies which have or may become due pursuant to said
returns, or pursuant to any assessment received with respect thereto, or which
is otherwise due and payable by Seller. Seller has delivered to Purchaser true,
current and complete copies of all said tax returns for the three (3) most
recent years. There is pending no audit or examination of any such tax return
of Seller by an governmental authority, nor has Seller received notice of any
such audit or examination. There are no unexpired waivers by either of Seller
of any statute of limitations with respect to any taxes, and there are no
pending or threatened actions, proceedings or investigations by any
governmental authority with respect to taxes.
o. Employee Salaries. Attached hereto as Exhibit S is a true and
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complete list setting forth the names, dates of hire, classification by duty
and current compensation of all employees of Seller. Except as set forth on
Exhibit S, since December ,1995, there has been no payment of any bonus or
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extraordinary compensation, and there has been no increase in the compensation
or rate of compensation payable, to any employee of Seller nor any material
change in any Employee Benefit Plan, nor has any such bonus or extraordinary
compensation, general increase or material change in Employee Benefit Plan
been promised to any employee orally or in writing.
p. Condition of Inventory. Except as disclosed on Exhibit T, the
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inventories of supplies of Seller (collectively, the "Inventory") are (i) of
good and standard quality, (ii) fit for the purpose for which they were made
and salable or usable (as the case may be) in the ordinary course of business,
(iii) contain no obsolete or surplus items, and (iv) are at or above the
levels required by any Federal or State agency regulating Seller.
q. Real Property. There is no real property owned by Seller and
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used in connection with the Business. A description of all real property
leased by Seller and used in connection with the Business and used in
connection with the Business and of the buildings and improvements located
thereon is set forth on Exhibit U (the "Leased Real Property" ). Seller enjoys
peaceful and undisturbed possession under all such leases, all of such leases
are valid and in full force and effect, Seller, nor, to Seller's knowledge, any
other party is in default under any of such leases and no event has occurred
which with the giving of notice or the passage of time or both would
constitute a default by Seller or, to Seller's knowledge, any other party
under any of such leases. With respect to the Leased Real Property, Xx.
Xxxxxxxx will provide a certificate stating the following:
(i) no portion thereof is subject to any pending
condemnation proceeding or other proceeding by any public or
quasi-authority and, to the knowledge of Seller, there is no
threatened condemnation or proceeding with respect thereto;
(ii) to the knowledge of Seller, the buildings, plants,
improvements, structures and fixtures owned, leased or used by
Seller at or upon the Leased Real Property, including, but not
limited to, heating, ventilation and air conditioning systems,
plumbing, electrical, water and sewage system, roof, foundation
and
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floors have to date been reasonably maintained and are in
good operating condition for their intended use subject to the
provision of usual and customary maintenance and repair performed
in the ordinary course with respect to similar properties of like
age and construction;
(iii) no notice of any increase in the assessed valuation of
the Leased Real Property or of any contemplated special
assessment has been received by Seller and, to the knowledge of
Seller, there is no threatened special assessment and none of the
Leased Real Property is located in a special service district or
in an area for which federal flood risk insurance is necessary
nor is the land on or in any flood zone, flood way or mud slide
hazard;
(iv) the land does not serve any adjoining property for any
purpose inconsistent with the use of the land;
(v) all facilities located on any parcel of the Leased Real
Property are supplied with all utilities and other services
necessary for the operation of such facilities as presently
operated, all of which services are adequate to conduct that
portion of Business as presently conducted at each of such
facilities;
(vi) there are no leases, subleases, licenses, concessions,
easements or other agreements, written or oral, granting to any
party or parties the right of use or occupancy of any portion of
the parcels of the Leased Real Property;
(vii) there are no parties other than Seller in possession
of the parcels of the Leased Real Property; and
(viii) all parcels of the Leased Real Property are currently
occupied by Seller and regularly used for their intended use in
connection with the active conduct of the Business.
r. Books and Records. The books and records of Seller accurately
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reflect all material transactions of Seller and have been properly kept and
maintained in the ordinary course of the Business.
s. No Brokers. Seller has not retained any broker or finder, made
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any statement or representation to any Person or entity which would entitle
such Person or entity to, or agreed to pay, any broker's, finder's or similar
fees or commissions in connection with the transactions contemplated by this
Agreement.
t. Conditions Of Participation. All claims for reimbursement for
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services rendered by Seller has been submitted to third parties in compliance
with applicable Laws and regulations. Seller, for all programs for which they
participate, have met and do meet, without material exception, the requirements
for participation in all Medicare and Medicaid programs in the
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States in which the Business is conducted and are certified for participation
in such programs. To the best of Seller's knowledge, there is not any pending
or threatened proceeding or investigation under such programs involving Seller.
Seller has no knowledge of any condition relating to Seller which constitutes
a material deficiency under any State Medicaid program or the Medicare program
or any other State or Federal law relating to the licensing or operation of
Seller. Seller are in material compliance, without obtaining waivers,
variances or extensions, with the standard requirements, conditions and
regulations for participating in any state Medicaid program and the federal
Medicare program, and state licensure laws for diagnostic imaging centers.
All deficiency reports, inspection reports and citations issued for the past
three years each of which has been previously furnished to Purchaser or will
be furnished to Purchaser prior to Closing.
u. No Illegal Payments. Seller has not, directly or indirectly,
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paid or delivered, accepted, or agreed to pay or deliver any remuneration,
fee, commission or sum of money or item of property, however characterized,
to any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated association, corporation, entity or government (whether Federal,
state, county, city or otherwise, including, without limitation, any
instrumentality, division, agency or department thereof) ("Person"),
government official or other party which is in any manner related to the
Business of Seller and which Seller and/or Seller knows or has reason to
believe to have been illegal under any federal, state or local law, which
payment or delivery may impose liability on Purchaser or Seller or form the
basis for the exclusion of Seller as providers under Medicare and Medicaid
programs.
v. No Referrals by Interested Parties. From and after January 1,
-----------------------------------
1995 and through the Closing Date that there have been no referrals of
Medicare or Medicaid patients to Seller by physicians owning shareholder
interests in Seller or having any financial relationship with Seller.
w. Completeness of Warranties. The representations and warranties
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of Seller made in or pursuant to this Agreement do not omit to state any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they are made, not misleading. There is no
fact or circumstance known to Seller that has not been disclosed to Purchaser
herein that materially and adversely affects or could so affect the Assets or
the Business.
7. Purchaser's Representation and Warranties. Purchaser hereby
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represents, warrants and covenants unto Seller as follows:
a. Organization and Good Standing. Purchaser is an Illinois
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corporation, duly organized, validly existing and in good standing under
the laws of the State of Illinois.
b. Authorization. This Agreement is duly authorized, executed
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and delivered by Purchaser and constitutes a legal, valid and binding
obligation of Purchaser, enforceable in accordance with its terms.
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c. No Violation. The execution, delivery and performance by
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Purchaser of this Agreement, and any documents, instruments and agreements
which may from time to time hereafter be executed and delivered by Purchaser
to Seller, shall not constitute a breach of any provision of applicable law
or contained in any agreement to which Purchaser is a party.
d. No Brokers. Purchaser has not retained any broker or finder,
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made any statement or representation to any Person or entity which would
entitle such Person or entity to, or agreed to pay, any broker's, finder's or
similar fees or commissions in connection with the transactions contemplated
by this Agreement.
8. Covenants of Seller. Between the date hereof and the Closing,
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Seller will:
a. Continue to perform all repairs, replacements and maintenance
necessary to maintain the tangible Assets in as good condition as exists on
the date hereof, ordinary wear and tear excepted.
b. Pay, discharge or provide for the payment of all wages, salaries,
bonuses, accrued vacation, holiday and sick pay, contributions to employee
benefit plans and other benefits, commissions and amounts, if any, due and
owing to all employees of the Seller through the Effective Date, including
worker's compensation claims.
c. Continue to carry on the Business in a businesslike and diligent
manner consistent with prior practice and in the ordinary course, and will use
their best efforts to preserve each Seller's business organization and its
relationships with its customers, suppliers and others having business
relationships with it and to keep available the services of its present
employees.
d. Afford to Purchaser and Purchaser's authorized agents or
representatives full access during normal business hours to the Leased Real
Property and to all of the Assets, and will furnish to Buyer or its agents or
representatives such documents and other information concerning the Business
as Buyer may reasonably request. No investigation or inquiry made by Buyer
pursuant to this Agreement shall in any way affect or lessen the
representations and warranties of Seller, herein, their survival after the
Closing Date or the indemnity contained in Section 12 hereof.
e. Use its best efforts to obtain all necessary consents and to
cause all of the conditions to the Closing to be fulfilled.
f. Avoid taking any action that would make any of the
representations and warranties of Seller contained herein untrue or misleading
when made or as of the Closing Date.
9. Covenants Of Purchaser. Subsequent to the consummation of the
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transaction described herein, Purchaser agrees to provide Sellers with on-site
access to the Center's hard copy historical billing records during normal
business hours for the purpose of verification of information relating to the
collection of accounts receivable and accrued xxxxxxxx as of the closing
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date. Purchaser agrees to provide Seller, at no cost, with the use of certain
patient billing and accounts receivable hardware consisting of a laptop computer
and the related billing software upon completion of Purchaser's use of such
equipment. Seller acknowledges, however, that all administrative or other
costs associated with the collection of such accounts receivable and
accrued xxxxxxxx shall be borne by Sellers.
10. Conditions to Obligations of Purchaser. The obligation of
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Purchaser to close the transactions contemplated by this Agreement is subject
to the satisfaction by Seller at or before the Closing of each of the
following conditions:
a. Representations and Warranties. All representations and
-------------------------------
warranties of Seller made in or pursuant to this Agreement shall be true and
correct at and as of the Closing Date, as if made at and as of the Closing
Date.
b. Performance. Seller shall have performed and complied with all
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covenants and conditions required under this Agreement to be performed or
complied with by them at or prior to the Closing.
c. Condition of Assets. The tangible Assets on the Closing Date
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shall be in the same condition as of December 31, 1995, reasonable wear and
tear excepted, and no material portion of the Assets shall have been damaged,
destroyed or rendered unusable, whether or not such occurrence shall have been
covered by insurance.
d. Delivery of Closing Documents. Seller shall have delivered all
------------------------------
documents required to be delivered by them at the Closing pursuant to Section
4 hereof.
e. Absence of Proceedings. No claim, suit, action or other
-----------------------
proceeding shall be pending or threatened before any court or governmental
authority seeking to restrain, prohibit or obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby and no investigation or inquiry shall have been made or
commenced by any governmental authority in connection with this Agreement or
such transactions.
f. Approval of Purchaser's Counsel. All actions, instruments and
--------------------------------
documents reasonably required to carry out this Agreement or incidental hereto,
and all other related legal matters, shall have been approved as to form and
substance by Xxxxxx Xxxxxx & Xxxxx, counsel for Purchaser, and said counsel
shall have received all documents, certificates and other papers reasonably
requested by it in connection therewith.
g. No Adverse Change. There shall not have been any material
------------------
adverse change, or any discovery of a condition or any occurrence of any event
which, in the reasonable determination of Purchaser, has resulted or is likely
to result in a material adverse change in the Business or the Assets.
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h. Consents. Seller shall have obtained and delivered to Purchaser
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all necessary Consents.
i. Seller's Opinion of Counsel. Purchaser shall have received an
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opinion of Xxxxxxx X. Xxxxx, P.C., counsel for Seller, addressed to Purchaser
and dated as of the Closing Date, in form and substance approved by
Purchaser's counsel.
j. UCC Lien Searches. Seller shall have conducted and obtained UCC,
------------------
tax lien and judgment searches dated no more than 10 days prior to the Closing
Date showing that there are no financing statements, judgments, taxes or other
Liens outstanding against such Business or any of the Assets, other than with
respect to the Assumed Liabilities.
11. Conditions to Obligations of Seller. The obligation of Seller to
------------------------------------
close the transactions contemplated by this Agreement is subject to the
satisfaction by Purchaser at or before the Closing of each of the following
conditions:
a. Representations and Warranties. All representations and
-------------------------------
warranties of Purchaser made in or pursuant to this Agreement shall be true
and correct at and as of the Closing Date, as if made at and as of the
Closing Date.
b. Performance. Purchaser shall have performed and complied with
------------
all covenants and conditions required of Purchaser under this Agreement to
be performed or complied with by it at or prior to the Closing.
c. Consents. The Required Consents shall have been duly obtained.
---------
d. Delivery of Closing Documents. Purchaser shall have delivered
------------------------------
all documents required to be delivered by it at the Closing pursuant to
Section 5 hereof.
e. Absence of Proceedings. No claim, suit, action or other
-----------------------
proceeding shall be pending or threatened before any court or governmental
agency seeking to restrain, prohibit or obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby and no investigation or inquiry shall have been made or
commenced by any governmental agency in connection with this Agreement or
such transactions.
f. Approval by Seller's Counsel. All actions, proceedings,
-----------------------------
instruments, and documents reasonably required to carry out this Agreement or
incidental hereto, and all other related legal matters, shall have been
approved as to form and substance by Xxxxxxx Xxxxx, counsel for Seller, and
said counsel shall have received all documents, certificates and other
papers reasonably requested by it in connection therewith.
12. Right of First Refusal. In conjunction with the acquisition of the
-----------------------
Center, Xx. Xxxxxxxx covenants and agrees that he will provide NMR of America,
Inc. ("NMR") with written notice of his desire to participate in any venture
("Venture") utilizing diagnostic
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radiology at the building in which Center is located. Such notice to NMR shall
reasonably set forth the nature and proposed terms and conditions of the
Venture. Such proposed terms and conditions shall, at a minimum, provide for
Xx. Xxxxxxxx to render or coordinate professional services to such Venture and
allow for NMR to coordinate technical services and own equity in the Venture
which is, at a minimum, commensurate with NMR's level of assumption of any
equipment-related financing. After receipt of such notice to NMR, NMR agrees
to perform such investigation within thirty (30) days of receipt of the
foregoing written notice. Subsequent to the completion of such investigation,
and any such negotiations between NMR and Xx. Xxxxxxxx, NMR shall provide Xx.
Xxxxxxxx with written notice of NMR's intent to participate or not participate
in such Venture. Xx. Xxxxxxxx will not participate in any Venture without
complying with the terms of this section. If, after such compliance, NMR
determines not to participate in the Venture in question, Stamelos may
participate in such Venture and such participation shall not be deemed a
violation of the terms of the Non-Competition Agreement.
13. Indemnifications and Compromise of Assumed Liabilities.
-------------------------------------------------------
a. Purchaser shall indemnify, defend and hold Seller harmless from
and against any and all costs, damages, awards, causes of action, losses and
fees incurred in connection with operations of Purchaser's Business that arise
after Closing, including but not limited to, attorney's fees, arising out of
or in connection with any property damage, bodily injury, death or any other
liability or damage arising subsequent to Closing and incurred as a result of
the use and possession by Purchaser of any of the Assets. Purchaser shall
additionally indemnify, defend and hold Seller harmless from and against the
liabilities described in Exhibit B.
b. Seller shall indemnify, defend and hold Purchaser harmless from
and against all costs, damages, awards, causes of action, losses and fees
incurred in connection with operations of Purchaser's Business, including, but
not limited to, attorney's fees, arising out or in connection with any
property damage, bodily injury, death or any other liability or damage arising
prior to Closing and incurred as a result of the use and possession by Seller
of any of the Assets, but excluding the liabilities described in Exhibit B.
c. On or before the ninetieth (90) day following the Closing Date,
Purchaser shall provide Seller with a written reconciliation of the payment
status of the Assumed Liabilities. Upon Seller's request, Purchaser shall
provide Seller with verification of the status of the Assumed Liabilities.
When all of the Assumed Liabilities have been satisfied by Purchaser, Purchaser
shall provide Seller with a notice stating that all the Assumed Liabilities
have been satisfied and shall provide Seller with verification thereof.
14. Indemnification Fund. In order to provide funds which may be used
---------------------
to satisfy, in part, Seller's obligation to indemnify Purchaser hereunder,
Seller agrees that out of the Purchase Price, Two Thousand Five Hundred and
00/100 Dollars ($2,500.00) shall be placed in escrow pursuant to the terms of
an escrow agreement in a form mutually agreed upon by the parties. This
deposit shall remain in escrow for a period of ninety (90) days after Closing.
This fund shall not be deemed to be the exclusive source of indemnification
hereunder.
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15. Miscellaneous.
--------------
a. Notice. Any an all notices, demands, requests, consents,
-------
designations, waivers and other communications required or desired hereunder
shall be in writing and shall be deemed effective upon personal delivery, upon
receipted delivery by Federal Express or another overnight carrier, three (3)
days after mailing if mailed by certified mail, return receipt requested, or
upon delivery if sent by facsimile transmission, to Seller or Purchaser at the
following address or such other address as Seller or Purchaser may specify:
If to Seller, then to:
Xx. Xxxxx Xxxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxxx
Number 1501E
Xxxxxxx, XX 00000
With a copy to:
Xx. Xxxxx X. Xxxxxxxx, M.D.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
and
Xxxxxxx X. Xxxxx, P.C.
0000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
If to Purchaser, then to:
C.D. Acquisition, Inc.
c/o NMR of America, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx X. X'Xxxxxx III
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With a copy to:
Xxxxxx X. XxXxxxxx, Esquire
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
b. Governing Law. This Agreement shall be interpreted, construed
--------------
and governed by and under the laws of State of Illinois.
c. Enforceability. Whenever possible, each provision of this
---------------
Agreement shall be interpreted in such manner as to be valid and enforceable
under applicable law, but if any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, such provision
shall be severed herefrom and such invalidity or enforceability shall not
affect any other provision of this Agreement, the balance of which shall
remain in and have its intended full force and effect. Provided, however, if
such provision may be modified so as to be valid and enforceable as a matter
law, such provision shall be modified so as to valid and enforceable to the
maximum extent permitted by law.
d. Headings and Captions. The paragraph headings and captions
----------------------
contained in this Agreement are solely for the purpose of reference, are not
part of the Agreement between Seller and Purchaser with regard to the subject
matter hereof and shall not in any affect the meaning or interpretation of
this Agreement or any paragraph.
e. Binding Agreement. This Agreement shall be binding on an inure
------------------
to the benefit of Seller's and Purchaser's respective successors and assigns.
f. Survival. The representations and warranties of the parties
---------
herein shall survive the Closing.
g. Expenses. Each party hereto shall bear its own expenses,
---------
including the fees of any attorneys, accountants or others engaged by such
party, in connection with this Agreement and the transactions contemplated
hereby.
h. Counterparts. This Agreement may be executed in two or more
-------------
counterparts, each of which shall be deemed an original without production
of the others.
i. Schedules and Exhibits; Recitals. All schedules and exhibits
---------------------------------
attached to this Agreement and referred to herein, and the recitals in this
Agreement, are hereby incorporated into and made an integral part of this
Agreement.
j. Invalidity; Severability. In the event any provision or portion
-------------------------
of any provision of this Agreement is held invalid or unenforceable by a court
of competent jurisdiction as applied
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to any fact or circumstance, the remaining provisions and portions of this
Agreement and the same provision as applied to any other fact or circumstance
shall not be affected or impaired thereby, and shall remain valid and
enforceable.
k. No Third Party Beneficiaries. Any agreement to pay or perform
-----------------------------
an obligation contained in this Agreement, express or implied, shall be only
for the benefit of the parties hereto entitled to such payment or performance
hereunder and their respective successors and permitted assigns, and such
agreement shall not inure to the benefit of any other party, it being the
intention of the parties hereto that no one will be deemed a third party
beneficiary of this Agreement.
1. Waiver. No failure of any party to exercise any right or remedy
-------
given such party under this Agreement or otherwise available to such party or
to insist upon strict compliance by any other party with its obligations
hereunder, and no custom or practice of the parties in variance with the terms
hereof, shall constitute a waiver of any party's right to demand exact
compliance with the terms hereof, unless such waiver is set forth in writing
and executed by such party.
m. Entire Agreement; Amendments. Except for any other agreements
-----------------------------
entered into on the date hereof among the parties hereto, this Agreement
contains the entire agreement and understanding between the parties hereto
relating to the subject matter hereof, and supersedes all previous written or
oral negotiations, commitments and writings with respect to the subject matter
hereof. This Agreement may be amended only by a written instrument signed
by each party hereto.
n. Construction. As used herein, where appropriate, each gender noun
-------------
or pronoun shall be deemed to include all other genders, the singular shall be
deemed to include the plural, and vice versa, and the use of specific language
shall not limit or restrict provisions using general language. This Agreement
has been prepared in collaboration with counsel for all parties and shall not
be strictly construed against any party.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first set forth above.
CENTRAL DIVERSEY M.R.I., INC.
an Illinois corporation.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx, President
C. D. ACQUISITION, INC., an Illinois
corporation.
By:
----------------------------------
Its:
--------------------------------
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