EXHIBIT 10.25
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INVENTORY PURCHASE AGREEMENT
This Inventory Purchase Agreement (the "Agreement") is entered into as of
October __, 2006 by and between Intraop Medical Corporation, a Nevada
Corporation ("Company") and 4M, Inc., a California Corporation ("Buyer").
RECITALS
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WHEREAS, Company and Buyer wish to enter into an agreement for the purchase
of Company's inventory as more fully described below.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, and intending to be
legally bound, the parties hereby agree as follows:
1. Definitions:
1.1. "Inventory" shall mean the various kinds of inventory Company
customarily holds for sale to its end customers, which inventory shall include
among other things, Mobetron systems, surgical tables, accessories, and repair
parts.
2. Terms and Conditions :
2.1. Buyer will purchase up to $700,000 of Inventory from Company, on a
revolving basis, upon the terms and conditions set forth herein:
2.2. Buyer agrees to purchase, at the request of Company, Inventory as
shown on Exhibit A attached hereto, as such may be updated from time to time.
The purchase price of Inventory purchased hereunder shall be $700,000 per
Mobetron system.
2.3. Upon the sale of Inventory to Buyer, Company will execute and deliver
to Buyer:
(a) A Xxxx of Sale for such Inventory in substantially the form of
Exhibit B attached hereto;
(b) Copies of all invoices relating to the Inventory; and
(c) Copies of checks or other forms of proof of payment relating to
the Inventory.
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2.4. Company hereby acknowledges and agrees that Buyer may file one or more
UCC financing statements in appropriate jurisdictions as notice of it ownership
interest in the Inventory.
2.5. Inventory purchased by Buyer will be stored free-of-charge to Buyer by
Company at such locations as Company customarily warehouses its own inventory
and Company will provide for the same care, safekeeping, and insurance of
Buyer's Inventory as Company customarily keeps for its own Inventory.
2.6. Buyer covenants not to sell, dispose of, pledge, grant an interest in,
or otherwise encumber Inventory that Buyer purchases from Company, and agrees to
hold such Inventory free and clear of all liens and encumbrances for later
repurchase by Company.
2.7. Company agrees to pay interest to Buyer on the outstanding balance of
Inventory purchased by Buyer at the rate of twelve percent (12%) per annum,
compounded monthly. Interest payments on Inventory shall be due by the 5th day
of each month.
2.8. To the extent Buyer receives payments for Inventory in excess of the
amounts required for the Company to repurchase such Inventory, and unless
otherwise directed by Company to apply such sums to the repurchase of other
Inventory, Buyer will immediately remit such sums to Company at the wire address
set forth in Exhibit C.
2.9. From time to time, Company may repurchase Inventory from Buyer. The
repurchase price of Inventory shall be the same price that Buyer paid to Company
for such Inventory, plus any outstanding and unpaid interest thereon net of any
prior payments received by Buyer from Company or otherwise.
2.10. Upon repurchase of Inventory, Buyer will execute a Xxxx of Sale in
substantially the form of Exhibit B hereto and, to the extent applicable, will
also execute UCC termination statements as requested by Company to evidence
Buyer's release of its ownership interest in such Inventory.
2.11. To the extent that orders for its products can be satisfied from
Inventory purchased by Buyer, Company agrees to preferentially fill such orders
through the repurchase of such Inventory from Buyer, provided however that Buyer
acknowledges that the Company has prior, similar, preferential repurchase
obligations under agreements it has made with E. U. Capital Venture, Inc., and
that the Company will fulfill its repurchase obligations to E.U. Capital
Venture, Inc., prior to fulfilling its repurchase obligations to Buyer.
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2.12 In addition to the terms stated above, the Company agrees to provide
Buyer a warrant for 50,000 shares of the Company's common stock. The warrants
will have a strike price of $0.50 per share and have a term of three years from
the date of this Agreement. A form of the warrant is attached as Exhibit D
hereto.
3. Term; Termination:
3.1. This Agreement will commence as of the date of this Agreement and will
continue for a period of one (i) year thereafter unless terminated earlier in
accordance with this Section 3. This Agreement shall automatically renew for
successive one (1) year terms unless either party gives written notice of
termination to the other party not less than sixty (60) days prior to the end of
any one-year term.
3.2. This Agreement may be terminated immediately upon written notice:
(a) by either party if the other party breaches any other material
provision of this Agreement and fails to cure such breach within thirty (30)
days after receipt of written notice of such breach from the non-breaching
party; or
(b) by either party if the other party (i) becomes insolvent, (ii)
makes an assignment for the benefit of creditors, (iii) files or has filed
against it a petition in bankruptcy or seeking reorganization, (iv) has a
receiver appointed, or (v) institutes any proceedings for the liquidation or
winding up; provided, however, that, in the case any of the foregoing is
involuntary, such party will only be in breach if such petition or proceeding
has not been dismissed within ninety (90) days.
3.3. Should this Agreement not be renewed at the end of its term by Buyer,
Company shall, within one hundred twenty (120) days following the termination of
this Agreement, repurchase all Inventory as per the terms and conditions stated
above.
4. General
4.1. Neither party will be liable to the other party for any loss or damage
resulting from any delay or failure to perform all or any part of this
Agreement, except for failure to pay monies due, if such delay or failure is
caused, in whole or in part, by circumstances beyond its control and not as a
result of its own negligence. Such circumstances include, without limitation,
acts of God, strikes, lockouts, riots, acts of war, acts of violence,
earthquakes, floods, fire and explosions.
4.2. All notices and other communications required or permitted hereunder
shall be in writing, shall be effective when given, and shall in any event be
deemed to be given (a) five (5) days after deposit with the U.S. Postal Service
or other applicable postal service, if delivered by first class mail, postage
prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the
business day of deposit with Federal Express or similar overnight courier,
freight prepaid, or (d) one day after the business day of delivery
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by facsimile transmission, if deliverable by facsimile transmission, with copy
by first class mail, postage prepaid, and shall be addressed as follows:
Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
Ph: 408-636-1020
If to Buyer:
Xxxx Xxxxxxx
4M, Inc.
00000 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
xxxxxxxx@xxx.xxx
Fax: 000-000-0000
Ph: 000-000-0000
4.3. This Agreement shall be governed by and construed in accordance with
the substantive laws of the United States and the State of California, without
regard to or application of California's conflicts of law rules. Any litigation
arising out of or relating to this Agreement shall take place exclusively in the
appropriate state or federal court having jurisdiction in Santa Xxxxx County,
California, and each party hereby irrevocably consents to the jurisdiction of
such courts.
4.4. Failure by either party to enforce any provision of this Agreement
will not be deemed a waiver of future enforcement of that or any other
provision. Any waiver, amendment, supplementation or other modification or
supplementation of any provision of this Agreement will be effective only if in
writing and signed by both parties.
4.5. If for any reason a court of competent jurisdiction finds any
provision or portion of this Agreement to be unenforceable, that provision of
this Agreement will be enforced to the maximum extent permissible so as to
effect the intent of the parties, and the remainder of this Agreement will
continue unmodified except as necessary to avoid unfairness.
4.6. This Agreement will be binding upon and inure to the benefit of the
parties to this Agreement and their respective successors and permitted assigns;
provided, however, that neither party may assign any of its rights, obligations,
or privileges under this
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Agreement without the prior written consent of the other party. Notwithstanding
the foregoing, however, Company may assign this Agreement in connection with an
asset sale, merger, acquisition, corporate reorganization or the like. Any
attempted assignment in violation of this Section shall be void.
4.7. This Agreement represents the entire agreement between the parties
hereto concerning the subject matter hereof and supersedes any and all prior or
contemporaneous correspondence, quotations and negotiations. This Agreement
supersedes and will take precedence over any conflicting terms in any purchase
order invoice, confirmation or other similar document.
4.8. 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. This Agreement may be executed and delivered by
telecopy or facsimile and execution in such manner shall constitute an original.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first written above.
COMPANY:
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Intraop Medical Corporation
By: /s/ Xxxxxx X. Goer
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Xxxxxx X. Goer
Chief Executive Officer
BUYER:
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4M, Inc.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
4M, Inc.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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EXHIBIT A
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Inventory
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EXHIBIT B
XXXX OF SALE
Dated ________
KNOW ALL MEN BY THESE PRESENTS THAT:
Intraop Medical Corporation, a Nevada corporation ("Seller"), FOR AND IN
CONSIDERATION of ______________ and 00/100 Dollars ($______.___) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby grant, bargain, sell, convey, transfer, assign, set
over and deliver unto 4M, Inc., a California corporation ("Buyer"), its
successors and assigns, the assets listed in Exhibit A attached hereto.
TO HAVE AND TO HOLD all of the properties, assets and rights granted and
transferred hereby, with the appurtenances thereof, unto Buyer, its successors
and assigns forever, to it and their own use and benefit.
Seller for itself and its successors and assigns, does hereby covenant with
Buyer, its successor and assigns, that Seller and its successors and assigns
will do, execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered all such further acts, deeds, bills of sale,
transfers, assignments and conveyances, powers of attorney, conveying and
confirming unto Buyer, its successors and assigns, all and singular, the
properties hereby granted, sold, assigned, transferred, conveyed and delivered
as Buyer, its successors or assigns, shall reasonably require, provided,
however, that Buyer, its successors and assigns shall prepare all necessary
documentation.
IN WITNESS WHEREOF, Seller, has caused this instrument to be signed in its
name by its duly authorized officer to be effective as of the date first written
above.
SELLER:
Intraop Medical Corporation
By:
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Name: Xxxxxx Xxxxxxx
Title: CFO
EXHIBIT C
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Intentionally left blank
EXHIBIT D
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Form of Warrant
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TBD
