Exhibit 2
AGREEMENT
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THIS AGREEMENT is made on this 17th day of September, 1997, by and between
Summit Medical Systems, Inc., a Minnesota corporation (the "Transferor"), and
Xxxxx X. Xxxxxx (the "Transferee").
RECITALS
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A. Transferor is the owner of 1,000 shares of $.01 par value common stock
(the "Subsidiary Shares") of BSM Financial, Inc., a Nevada corporation (the
"Transferor Subsidiary"), which represent all of the issued and outstanding
capital stock of the Transferor Subsidiary.
B. Transferee is the Chief Executive Officer of Transferor Subsidiary and
a Vice President of Transferor and the registered owner of 137,524 shares of
$.01 par value Common Stock of Transferor ("Transferee's Shares").
C. The Board of Directors of Transferor has determined that an exchange of
Transferor Subsidiary on the terms set forth herein is in the best interests of
Transferor and its shareholders.
D. Transferee desires to acquire the Subsidiary Shares from Transferor and
Transferor desires to transfer the Subsidiary Shares to Transferee upon the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
CLOSING AND EXCHANGE
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A. Closing. The closing hereunder (the "Closing") shall take place at the
offices of Xxxxxx & Whitney LLP, at 10:00 a.m. on Tuesday, September 30, 1997,
or at such other time and date as the parties shall mutually agree upon (the
"Closing Date").
B. Exchange. On the Closing Date, subject to the terms, conditions and
agreements set forth herein, (1) Transferor shall distribute/transfer to
Transferee the Subsidiary Shares, and (2) Transferee shall (i) transfer to
Transferor the Transferee Shares, and (ii) pay to Transferor directly or cause
Transferor's Subsidiary to distribute to Transferor $575,000 in cash (the
"Equalizing Consideration"), payable by wire transfer or cashier's or certified
check.
C. Cancellation of Inter-Company Obligations. Effective as of the
Closing, all inter-company debts, obligations. arrangements or understandings
among or
between one or more of Transferor, Transferor Subsidiary and BSM Healthcare
Publications, Inc., a Nevada corporation ("Publications"), except as provided
herein, shall be forgiven, released and terminated.
D. Deliveries at Closing. At the Closing, (i) Transferor shall deliver a
certificate or certificates representing the Subsidiary Shares, duly endorsed
for transfer or accompanied by duly executed stock powers endorsed in blank, and
(ii) Transferee shall deliver the Equalizing Consideration and a certificate or
certificates representing the Transferee's Shares duly endorsed for transfer or
accompanied by duly endorsed stock powers endorsed in blank.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRANSFEROR
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Transferor represents, warrants and agrees as follows:
A. Organization of Transferor. Transferor is duly organized, validly
existing, and in good standing under the laws of the State of Minnesota.
B. Authorization of Transaction. Transferor has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of Transferor, enforceable in accordance with its terms and conditions.
Transferor need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
C. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Transferor is subject or, any provision
of its charter or bylaws or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Transferor is a party or by which it is bound or to which any of its
assets is subject.
D. Brokers' Fees. Transferor has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Transferee could
become liable or obligated.
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E. Subsidiary Shares. Transferor holds of record and owns beneficially
the Subsidiary Shares free and clear of any restrictions or transfer (other than
restrictions under the Securities Act of 1993, amended (the "Securities Act")
and state securities laws), taxes, security interests, options, warrants,
purchase rights, contracts, commitments, equities, claims, and demands.
Transferor is not a party to any option, warrant, purchase right, or other
contract or commitment that could require Transferor to sell, transfer, or
otherwise dispose of any capital stock of the Transferor Subsidiary (other than
this Agreement). Transferor is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock of
the Transferor Subsidiary.
ARTICLE III
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF TRANSFEREE
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Transferee represents, warrants, and agrees as follows:
A. Authorization of Transaction. Transferee has full power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of
Transferee, enforceable in accordance with its terms and conditions. Transferee
need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
B. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Transferee is subject or (ii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Transferee is a party or by which he
is bound or to which any of his assets is subject.
C. Brokers' Fees. Transferee has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Transferor could
become liable or obligated.
D. Subsidiary Shares. Transferee holds of record and owns beneficially
Transferee's Shares free and clear of any restrictions or transfer (other than
restrictions under the Securities Act and state securities laws), taxes,
security interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands. Transferee is not a party to any option,
warrant, purchase
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right, or other contract or commitment that could require Transferee to sell,
transfer, or otherwise dispose of any capital stock of Transferor (other than
this Agreement). Transferee is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock of
Transferor.
E. Securities Laws Transfer Restrictions. Transferee is acquiring
the Subsidiary Shares for investment for his own account and has no present
intention of distributing or selling the Subsidiary Shares. Transferee
acknowledges that the Subsidiary Shares have not been registered under the
Securities Act or any state securities laws and that Transferee may not resell
or effect any other disposition of the Subsidiary Shares unless and until such
time that the Subsidiary Shares have been registered under the 1933 Act and
registered or qualified under applicable state securities laws or until
Transferee has obtained an opinion of counsel that such sale or disposition is
exempt from registration or qualification.
ARTICLE IV
RELEASE
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A. Transferee Release. Transferee and Transferee's heirs, relatives,
executors, administrators, successors, assigns, agents, affiliates and insurers,
do hereby fully, finally and forever discharge Transferor and all of
Transferor's officers, directors, employees, agents, affiliates and shareholders
from any and all actions, claims, suits, damages, debts, judgments, levies,
executions or liability of any kind or character, whether known or unknown,
asserted or unasserted, direct or indirect, which Transferee, Transferee's
heirs, relatives, executors, administrators, successors, assigns, agents, and
insurers have or may have by reason of any matter, fact or thing, and occurring
on or prior to the date of this Agreement.
B. Transferor Release. Transferor and Transferor's officers, directors,
employees, agents successors, assigns, agents, affiliates and insurers do hereby
fully, finally and forever discharge Transferee and all of Transferee's heirs,
relatives, executors, administrators, successors, assigns, agents and insurers
from any and all actions, claims, suits, damages, debts, judgments, levies,
executions or liability of any kind or character, Transferor and Transferor's
officers, directors, employees, agents successors, assigns, agents and insurers
have or may have by reason of any matter, fact or thing, and occurring on or
prior to the date of this Agreement.
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ARTICLE V
ADDITIONAL AGREEMENTS
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A. Re-Sale Consideration. In the event Transferee or any of Transferee's
assigns, successors, heirs, executors, administrators, agents or insurers
("Transferee's Successors") sell, convey, assign or otherwise transfer to any
third person, (i) all of the Subsidiary Shares (or any equivalent shares of
stock received, issued, conveyed or otherwise acquired by Transferee or such
Transferee's Successors as a result of, related to or in connection with any
reclassification, recapitalization, subdivision, split, merger,
consolidation(collectively, "Substitute Shares")) or (ii) all or substantially
all of the assets of Transferor Subsidiary, during the two-year period
commencing on the Closing Date (the "Re-Sale Period"), for an aggregate purchase
price (payable in cash or property) that exceeds the sum of (A) $575,000 and (B)
the product of the number of Transferee's Shares multiplied by the last sale
price per share of Transferor Common Stock quoted on the Nasdaq National Market
on the Closing Date (such sum referred to herein as the "Aggregate
Consideration"), then Transferee shall immediately remit to Transferor, an
amount equal to 50% of the difference between such aggregate purchase price and
the Aggregate Consideration. In the event that Transferee or any Transferee
Successors shall sell, assign, convey or otherwise transfer less than all of the
Subsidiary Shares (or any Substitute Shares) during the Re-Sale Period, then
Transferee shall immediately remit an amount equal to 50% of the product of (a)
the number of transferred Subsidiary Shares (or any Substitute Shares)
multiplied by (b) the difference between (X) the per share price received by
Transferee or such Transferee's Successors as consideration for the transferred
Subsidiary Shares (or any Substitute Shares) and (Y) the Aggregate Consideration
divided by the number of Subsidiary Shares (or any Substitute Shares).
B. Non-Interference and Cooperation. Transferor and Transferee agree that
none of Transferor, Transferee or Transferor Subsidiary shall, on and after the
Closing Date, in any manner, willfully interfere, impede or adversely affect the
other party's relationship with any of such other party's current and
prospective clients and customers. Transferor and Transferee further agree to
take all commercially reasonable actions to cooperate and coordinate with the
other party regarding services to mutual clients and customers in a manner
consistent with past practices.
C. Legend. Transferor and Transferee agree that the certificates
representing the Subsidiary Shares to be purchased by Transferee pursuant hereto
shall bear the following restrictive legend either on the face or reverse side
thereof:
The shares represented by this certificate may not be transferred
without (i) an opinion of counsel satisfactory to this corporation that
such transfer may lawfully be made without restriction or qualification
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under the Securities Act of 1933 (as amended) and applicable state
securities laws, or (ii) such registration or qualification.
D. Taxes. Transferor will be liable for all federal and state income
taxes which are imposed on, or incurred by, Transferor Subsidiary for its
taxable period ending on the Closing Date and for all prior periods, excluding
any such taxes which are attributable to events occurring, or income arising or
deemed to arise, subsequent to the Closing Date. Transferee will be liable for
all other taxes which are imposed on, or incurred by, Transferor Subsidiary,
including all taxes arising from the transactions contemplated herein. The
parties hereby agree that this Agreement may be characterized as a Plan of
Reorganization intended to effect a tax-free reorganization under Sections 355
and 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the cases and regulations thereunder. The parties agree that Transferor
shall be under no obligation to report the exchange effected under this
Agreement to federal taxing authorities in any particular manner and that
Transferee shall, as set forth above, be responsible for all taxes to Transferor
Subsidiary or Transferee arising from the transactions contemplated herein.
E. Employment Agreement. Effective as of the Closing Date, all
provisions of the Employment Agreement, dated October 5, 1995 (the "Employment
Agreement"), by and among Transferor and Transferee, shall terminate and there
shall be no continuing obligations or covenants thereunder on the part of
Transferor and Transferee, except Section 7 of the Employment Agreement shall
remain in full force and effect.
F. Indemnification. Transferor agrees to indemnify, defend, and hold
Transferee harmless from and against any claims, liabilities, damages,
judgments, penalties, fines or expenses of any type whatsoever incurred by
Transferee arising out of the status, capacities or activities of Transferee as
an officer or director of Transferor to the maximum extent permitted under
Minnesota law.
ARTICLE VI
ADDITIONAL PROVISIONS
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A. Survival of Agreements, etc. All agreements, covenants,
representations, and warranties made herein shall survive the execution and
delivery of this Agreement and the transfer of the Subsidiary Shares and the
transfer of the Transferor Shares.
B. Costs and Expenses. Each party hereto shall pay its or his own costs
incurred in connection herewith, including the fees and expenses of its or his
counsel, accountants, and other representatives. The Transferee shall be solely
responsible for fees and expenses, if any, incurred by the Transferor Subsidiary
with the transactions contemplated herein.
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C. Contents of Agreements; Parties in Interest, etc. This Agreement sets
forth the final, complete, and exclusive agreement of the parties with respect
to the subject matter hereof, and may not be amended except by a writing signed
by the party sought to be charged. All the terms and conditions contained
herein shall be binding upon and inure to the benefit of and be enforceable by
the heirs, respective successors, and assigns of the parties hereto.
D. Applicable Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Minnesota. Transferor and
Transferee agree that all disputes relating to, or arising out of, this
Agreement shall be submitted to arbitration before an arbitrator selected from
the Judicial Arbitration and Medication Service as the sole and exclusive remedy
for resolving such controversies. Transferor and Transferee agree that the
decision of the arbitrator shall be final and binding and that a judgment may be
entered on such arbitration award in any court of competent jurisdiction. The
parties agree that any such arbitration shall take place in the State of Nevada.
E. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if sent by registered mail, postage
prepaid, addressed as follows or to such other address as shall theretofore have
been designated in writing by the addressee:
To the Transferor:
Summit Medical Systems, Inc.
00000 Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
To the Transferee:
Xxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 0-X
Xxxxxxx Xxxxxxx, XX 00000
Telephone:
F. Headings. The article and paragraph headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
G. 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.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first above written.
SUMMIT MEDICAL SYSTEMS, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Its Chief Financial Officer
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/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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