EX-10.8
99
v127029_ex10-8.htm
SETTLEMENT
AGREEMENT
This
Settlement Agreement (the “Agreement”)
is
made as of August 9, 2007, by and among Med-Air Consultants, Inc. (“Med-Air”),
Xxxx
Xxxxxx (“Richer”),
Xxxx
Xxxxxx (“Xxxxxx”
and,
together with Richer and Med-Air, the “Med-Air
Parties”),
and
The Center For Wound Healing, Inc. (“CFWH”).
(Med-Air, Richer, Macher, and CFWH are each referred to herein as a
“Party”
or,
collectively, as the “Parties”).
Capitalized terms used in this Agreement are defined or cross-referenced in
Article 15.
Recitals
WHEREAS,
CFWH is a Nevada corporation in the business of providing management services
to
certain healthcare services including hyperbaric medicine and wound care
centers; and
WHEREAS,
New York Hyperbaric & Wound Care Centers LLC (“NY
Hyperbaric”)
is a
limited liability company formed under the laws of Delaware, and is a
majority-owned Subsidiary of CFWH; and
WHEREAS,
Med-Air is a
New York corporation in the business of providing equipment to
healthcare providers and providing certain healthcare management services to
hospitals; and
WHEREAS,
all of the issued and outstanding shares of common stock of Med-Air are owned
by
Richer and Xxxxxx; and
WHEREAS,
on or about September 1, 1999, Med-Air entered into a Consultation Agreement
with Xxxxx Xxxx LLC (“EKLLC”),
Atmo
Inc. (“Atmo”),
Xxxxx
Xxxxxxxxx (“Xxxxx”)
and
Xxxxx Xxxxxxxxx (“Elise”
and
together with Xxxxx, the “Greenbergs”)
whereby, among other things, Med-Air agreed to lease one hyperbaric chamber
to
EKLLC, Atmo and the Greenbergs (collectively, the “Xxxxxxxxx
Group”)
for
installation at New Island Hospital Hyperbaric Center (“New
Island Hospital”)
and
further agreed to use its best efforts to assist or facilitate the Xxxxxxxxx
Group in establishing hyperbaric equipment or facilities in hospitals or
outpatient facilities and in obtaining hyperbaric equipment for placement in
various facilities (the “New
Island Contract”);
and
WHEREAS,
on or about November 20, 2000, Med-Air entered into a Consultation Agreement
with EKLLC, NY Hyperbaric, and the Greenbergs whereby, among other things,
Med-Air agreed to provide two hyperbaric xxxxxxxx to EKLLC for installation
and
use at Montefiore Medical Center at its Moses Division Hospital (the
“Montefiore
Contract”);
and
WHEREAS,
on or about September 1, 2001, Med-Air entered into a Consulting Agreement
with
The Square Hyperbaric & Wound Care Center, LLC (the “Square”),
Xxxx
Xxxxxxxxx (“Xxxxxxxxx”),
Xxxxxxx Xxxxxx (“Xxxxxx”),
Xxxxx, Xxxxx and Xxxxxxx Xxxxxxxxx (“Xxxxxxx”)
whereby, among other things, Med-Air agreed to furnish certain hyperbaric
equipment to the Square for use at
New York Westchester Square Medical Center
in
the Bronx,
New York (the “Westchester
Square Hospital”)
and to
provide certain consulting services to the Square (the “Westchester
Square Contract”);
and
WHEREAS,
on or about September 10, 2002, Med-Air entered into a Consultation Agreement
with NY Hyperbaric whereby, among other things, Med-Air agreed to furnish
certain hyperbaric equipment to NY Hyperbaric for use at Xxxxx Xxxxx Medical
Center (“Xxxxx
Xxxxx Hospital”)
and to
provide certain consulting services to NY Hyperbaric (as amended by an addendum
dated September 10, 2002, the “Xxxxx
Xxxxx Contract”);
and
WHEREAS,
on or about [Date], [Med-Air] entered into a [Consultation Agreement] with
[Far
Rockaway Hyperbaric LLC (“Far
Rockaway LLC”)]
whereby, among other things, Med-Air agreed to lease [two (2)] hyperbaric
xxxxxxxx to [Far Rockaway LLC] for installation at St. John’s Episcopal
Hospital, a division of Episcopal Health Services, Inc. (the “Far
Rockaway Hospital”),
and
provide certain consulting services to Far Rockaway LLC (the “Far
Rockaway Contract”);
and
WHEREAS,
on or about Xxxxx 0, 0000, Xxx-Xxx entered into a Consultation Agreement with
Jefferson Hyperbaric & Wound Care Centers, LLC (“Jefferson
LLC”)
whereby, among other things, Med-Air agreed to furnish certain hyperbaric
equipment to Jefferson Hyperbaric for use at Xxxxxx Xxxxxxxxx University
Hospital (“Xxxxxx
Xxxxxxxxx Hospital”)
and
provide certain consulting services to Jefferson LLC (as amended by an addendum
dated March 1, 2003, the “Xxxxxx
Xxxxxxxxx Contract,”
and,
together with the New Island Contract, the Montefiore Contract, the Westchester
Square Contract, and the Xxxxx Xxxxx Contract, the “Consulting
Agreements”);
and
WHEREAS,
on or about June 16, 2006, CFWH acquired all of the membership interests of
Far
Rockaway LLC; and
WHEREAS,
in connection with the acquisition by CFWH of the membership interests of Far
Rockaway LLC, CFWH issued and delivered a promissory note payable to [Med-Air
and Braintree, Inc.] in the original principal face amount of $1,350,000 (the
“Far
Rockaway Note”),
all
of which remains due and payable as of the date hereof; and
WHEREAS,
Bayonne Hyperbaric LLC (“Bayonne
LLC”)
is a
limited liability company formed under New Jersey law for the purpose of
providing Bayonne Medical Center (“Bayonne
Hospital”)
with
those administrative and other services requested by Bayonne Hospital in
connection with the delivery of hyperbaric treatment and wound care to patients
of Bayonne Hospital pursuant to that certain Administrative Services Agreement
dated as of July 15, 2005 by and between Bayonne Hospital and American
Hyperbaric, Inc. d/b/a The Center For Wound Healing; and
WHEREAS,
40% of the membership interests of Bayonne LLC are owned by Med-Air (the
“Med-Air
Bayonne Interests”);
20%
of the membership interests of Bayonne LLC are owned by Xxxx Xxxxxx; and the
balance, 40%, of the membership interests of Bayonne LLC are owned by CFWH;
and
WHEREAS,
Southampton Hyperbaric, LLC (“Southampton
LLC”)
is a
limited liability company formed under
New York law for the purpose of providing
Southampton Hospital (“Southampton
Hospital”)
with
those administrative and other services requested by Southampton Hospital in
connection with the delivery of hyperbaric treatment and wound care to patients
of Southampton Hospital pursuant to that certain Administrative Services
Agreement, dated as of May 17, 2004, by and between Southampton Hospital and
Southampton LLC d/b/a The Center For Wound Healing; and
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WHEREAS,
51% of the membership interests of Southampton LLC are owned by Med-Air; the
balance of 49% is owned by CFWH (the “CFWH
Southampton Interests”);
and
WHEREAS,
Raritan Bay Hyperbaric, LLC (“Raritan
Bay LLC”)
is a
limited liability company formed under New Jersey law for the purpose of
providing Raritan Bay Medical Center (“Raritan
Bay Hospital”)
with
those administrative and other services requested by Raritan Bay Hospital in
connection with the delivery of hyperbaric treatment and wound care to patients
of Raritan Bay Hospital pursuant to that certain Hyperbaric and Wound Care
Services Agreement, dated as of May 27, 2005, by and between Raritan Bay
Hospital and New Jersey Hyperbaric, LLC d/b/a The Center For Wound Healing,
which was subsequently assigned to Raritan Bay LLC; and
WHEREAS,
51% of the membership interests of Raritan Bay LLC are owned by Med-Air (the
“Med-Air
Raritan Bay Interests”);
the
balance of 49% is owned by CFWH; and
WHEREAS,
CFWH provides Xxxxxx-Xxxxx General Hospital (“WVHC-Hospital”)
with
those administrative and other services requested by WVHC-Hospital in connection
with the delivery of hyperbaric treatment and wound care to patients of
WVHC-Hospital pursuant to that certain Administrative Services Agreement, dated
as of March 7, 2006, by and between WVHC-Hospital and The Center For Wound
Healing, Inc. (the “Xxxxxx-Xxxxx
ASA”);
and
WHEREAS,
certain of the Med-Air Parties may have interests in or claims with respect
to
the Xxxxxx-Xxxxx ASA and/or the profits, revenues, and/or benefits obtained
by
CFWH thereunder (the “Med-Air
Xxxxxx-Xxxxx Interests”);
and
WHEREAS,
on or about July 8, 2004, Macher, Richer, Med-Air, EKLLC, NY Hyperbaric, The
Center For Wound Healing, Inc., Xxxxxxxxx and Xxxxxx executed an agreement
whereby, among other things, Xxxxxx, Richer and Med-Air voided the right of
first refusal granted to Med-Air in each of the Consulting Agreements in
consideration of NY Hyperbaric’s promise to develop twelve (12) new hyperbaric
and wound care centers with Med-Air over a four-year period, which facilities
would be co-owned 49% by NY Hyperbaric and 51% Med-Air (the “Med-Air
2004 Modification,”
and,
together with the Consulting Agreements, the “Med-Air
Contracts”);
and
WHEREAS,
various disputes have arisen regarding the rights and obligations of each of
the
Parties under the Med-Air Contracts; and
WHEREAS,
the Parties wish to resolve all disputes that have arisen under the Med-Air
Contracts and avoid the expense, risk and uncertainty of
litigation;
NOW,
THEREFORE, in consideration of the representations, acknowledgements, promises
and covenants contained herein, and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, each of the Parties hereby
voluntarily, intentionally, and upon the advice and guidance of counsel, agrees
as follows:
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ARTICLE
1
SETTLEMENT
AND EFFECTIVE DATE
1.1. Denial
of Liability.
This
Agreement is entered into only for the purposes of settlement and compromise
of
the matters covered by this Agreement in order to avoid the uncertainties,
risks
and expenses attendant to litigation among the Parties. Neither this Agreement,
nor anything contained herein, nor any act or thing done or to be done in
connection herewith, is intended to be, or shall be construed or deemed to
be,
an admission or a denial by any of the Parties of any liability, fault or
wrongdoing.
1.2. Effective
Date.
This
Agreement shall become effective and its terms enforceable by the Parties upon
the execution by each of the Parties of the signature pages and the mutual
exchange and delivery of such executed signature pages by CFWH and Med-Air
Parties. On the Effective Date, Med-Air shall deliver the Disclosure Schedules,
or cause the Disclosure Schedules to be delivered, to CFWH.
ARTICLE
2
CERTAIN
CONSIDERATION
2.1. Termination
of Certain Med-Air Contracts.
The
Parties hereby agree that the Med-Air Contracts shall terminate on the Closing
Date except for the Far Rockaway Contract which shall continue in full force
and
effect until it terminates on the earlier to occur of (a) June 30, 2008, and
(b)
the payment and satisfaction of all liabilities of CFWH under the Far Rockaway
Note. No provision of any of the Med-Air Contracts (other than the Far Rockaway
Contract) shall be enforceable by or against any of the Parties or any other
person after the occurrence of the Closing Date.
2.2. Consideration
to Med-Air.
In
consideration for the termination of the Med-Air Contracts, Med-Air’s agreement
to transfer to CFWH the Med-Air Bayonne Interests, the Med-Air Raritan Bay
Interests, and the Med-Air Xxxxxx-Xxxxx Interests, the release by the Med-Air
Group of various claims against the CFWH Group; and the other good and valuable
consideration received from the Med-Air Group as described herein, CFWH agrees
that, at Closing, it shall:
(a) promise
to pay to Med-Air the sum of $1,894,250.00 over the 36 month period commencing
on June 30, 2007, which promise shall be evidenced by a promissory note in
the
form of that annexed hereto as Exhibit A (the “Med-Air
Note”);
and
(b) issue
and
deliver 150,000 shares of restricted CFWH common stock to Xxxxxx (the
“Xxxxxx
Stock”);
(c) issue
and
deliver 150,000 shares of restricted CFWH common stock to Richer (the
“Richer
Stock”);
and
(d) deliver
to Med-Air a
Membership Transfer Agreement evidencing the transfer by CFWH
of
the CFWH Southampton Interests to Med-Air, free and clear of all Liens and
Encumbrances thereon.
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2.3. Good
Faith Payment.
Med-Air
acknowledges its receipt of $25,000 from CFWH, which was paid by CFWH to Med-Air
on or about May 4, 2007 as a good faith payment toward the first installment
payment due under the Med-Air Note (the “Good
Faith Payment”).
Med-Air agrees that the Good Faith Payment shall be credited toward the first
installment payment due under the Med-Air Note and, consequently, the balance
remaining due under the Med-Air Note is $1,869,250 and that the unpaid portion
of the first installment payment is $88,562.50. On the Effective Date, CFWH
shall place the unpaid portion of the first installment payment in escrow with
CFWH’s counsel, which amount shall be released to Med-Air on the Closing Date.
2.4. Consideration
to CFWH.
In
consideration for the termination of the Med-Air Contracts, CFWH’s agreement to
transfer to Med-Air the CFWH Southampton Interests, the release by the CFWH
Group of various claims against the Med-Air Group, and the other good and
valuable consideration received from the CFWH Group as described herein, the
Med-Air Parties (a) agree that, at Closing, they shall deliver to CFWH
Membership Transfer Agreements evidencing the transfer by the applicable Med-Air
Parties to CFWH, free and clear of all Liens and Encumbrances thereon, of (i)
the Med-Air Bayonne Interests and (ii) the Med-Air Raritan Bay Interests and
(b)
hereby transfer all of the Med-Air Parties’ rights in and to the Med-Air
Xxxxxx-Xxxxx Interests, and otherwise waive any and all rights and claims they
may have with respect to the Med-Air Xxxxxx-Xxxxx Interests.
2.5. Xxxxxx
Stock and Richer Stock. If
the
Xxxxxx Stock and Richer Stock is (i) not eligible for public resale under Rule
144 one year following the Closing Date or (ii) the resale of such stock is
not
otherwise registered for resale under the 1933 Act within one year following
the
Closing Date, due in either case to the failure of CFWH to satisfy the current
public information requirements of Section 144(c) because of its failure to
timely file any periodic report with the SEC for any quarterly or annual period
ending on or after March 31, 2008 (taking into account any extensions of the
due
date of such reports pursuant to Rule 12b-25 promulgated under the 1934 Act),
Xxxxxx and Richer as the holders of the Xxxxxx Stock (and any stock issuable
pursuant to the Xxxxxx Stock) and the Richer Stock (and any stock issuable
pursuant to the Richer Stock), respectively (collectively, the “Holders”
and
such shares, the “Registrable
Securities”)
shall
have Piggyback Registration Rights (“Piggyback
Registration Rights”).
For
purposes of this Section 2.5, solely to the extent that the Holders become
eligible to receive Piggyback Registration Rights under this Section 2.5, if
CFWH proposes to register any of its common stock under the 1933 Act for sale
to
the public, whether for its own account or for the account of other stockholders
or both (except with respect to registration statements on Form X-0, X-0 or
another form not available for registering the Registrable Securities for sale
to the public) (each, a “Piggyback
Registration”),
CFWH
will give written notice to the Holders of its intention to effect such
registration and will include in such registration all Registrable Securities
with respect to which CFHW has received written requests for inclusion within
five (5) business days after the receipt of CFHW’s notice (a “Piggyback
Registration Request”);
provided, however, that CFHW shall not be required to include Registrable
Securities in the securities to be registered pursuant to a registration
statement on any form which limits the amount of securities which may be
registered by the issuer and/or selling security holders if, and to the extent
that, such inclusion would make the use of such form unavailable. In the event
that any Piggyback Registration shall be, in whole or in part, an underwritten
public offering, any Piggyback Registration Request by a Holder shall specify
that either (a) such Registrable Securities are to be included in the
underwriting on the same terms and conditions as the shares of common stock
otherwise being sold through underwriters under such registration, or
(b) such Registrable Securities are to be sold in the open market without
any underwriting, on terms and conditions comparable to those normally
applicable to offerings of common stock in reasonably similar circumstances.
If
a Piggyback Registration is an underwritten primary registration on behalf
of
CFHW and/or stockholders, and the managing underwriters advise CFHW in writing
that in their opinion the number of shares requested to be included in such
registration exceeds the maximum number which can be included in such offering
without adversely affecting the marketability of the offering (the “Maximum
Number”),
CFHW
will limit the number of shares included in such registration to the Maximum
Number, and the shares registered shall be selected in the following order
of
priority: (i) first, the shares CFHW proposes to sell, and
(ii) second, shares to be sold by other stockholders, allocated among such
stockholders pro-rata according to the proportion of the securities to be sold
by each stockholder in the proposed distribution derived by dividing the number
of securities proposed to be sold by all stockholders. In addition, the Holders
agree not to effect any public sale or distribution (including sales pursuant
to
Rule 144) of equity securities of CFHW, or any securities convertible into
or exchangeable or exercisable for such securities, during the seven
(7) days prior to (provided that the Holders receive a notice from CFHW of
the commencement of such seven-day period) and the 45-day period beginning
on
the effective date of any registration statement for an underwritten Piggyback
Registration in which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree. Notwithstanding the foregoing, the Holders’
Piggyback Registration Rights shall terminate on the earliest of (i) two years
after the Closing Date or (ii) such time as the Registrable Securities become
eligible for resale pursuant to Rule 144(k) under the 1933 Act.
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2.6. Xxxxxx
and Richer Representations. In connection with the issuance of the Xxxxxx
Stock and the Richer Stock pursuant to Section 2.5, each Holder hereby
represents and warrants:
(a) the
Holder is an accredited investor within the meaning of Rule 501 of Regulation
D
promulgated under the 1933 Act, is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments
in
shares representing an investment decision like that involved in the purchase
of
the Xxxxxx Stock and the Richer Stock;
(b) the
Holder (i) is acquiring the Xxxxxx Stock or the Richer Stock, as the case may
be, for its own account for investment only and has no intention of selling
or
distributing any of such stock or any arrangement or understanding with any
other Persons regarding the sale or distribution of such stock except as would
not result in a violation of the 1933 Act and; (ii) the Holder will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose
of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the stock except pursuant to and in accordance with the 1933 Act;
(c) the
Holder has received and reviewed CFWH’s public filings with the SEC and has
requested, received, reviewed and considered all other information such Holder
deems relevant in making an informed decision to purchase the Xxxxxx Stock
or
the Richer Stock, as the case may be. Such Holder has had an opportunity to
discuss CFWH’s business, management and financial affairs with its management
and also had an opportunity to ask questions of officers of CFWH that were
answered to such Holder’s satisfaction;
6
(d) the
Holder recognizes that an investment in the Xxxxxx Stock or the Richer Stock,
as
the case may be, involves a high degree of risk, including a risk of total
loss
of such Holder’s investment. Such Holder is able to bear the economic risk of
holding such stock for an indefinite period, and has knowledge and experience
in
the financial and business matters such that it is capable of evaluating the
risks of the investment in the stock; and
(e) the
Holder has, in connection with such Holder’s decision to purchase the Xxxxxx
Stock or the Richer Stock, as the case may be, not relied upon any
representations or warranties other than in the representations and warranties
of the Company contained in this Agreement and such Holder has, with respect
to
all matters relating to this Agreement and the offer and sale of the stock,
relied solely upon the advice of such Holder’s own counsel and has not relied
upon or consulted any counsel to CFWH.
ARTICLE
3
CLOSING
AND DELIVERIES
3.1. Closing.
The
consummation of the transactions contemplated hereby (the “Closing”)
shall
take place at the offices of King & Spalding LLP, 1185 Avenue of the
Americas,
New York,
New York at 9:00 a.m. on the third (3rd) Business Day
following the Effective Date, or on such other date or at such other place
and
time as may be agreed to by the Parties (the “Closing
Date”).
3.2. Deliveries
by CFWH.
On the
Closing Date, CFWH shall deliver, or cause to be delivered, to the Med-Air
Group, the following items:
(a) to
Med-Air, the Med-Air Note, duly executed by CFWH with instructions to the escrow
agent to deliver the balance of the first payment thereunder;
(b) to
Xxxxxx, a duly authorized certificate for 150,000 restricted shares of CFWH
common stock; and
(c) to
Richer, a duly authorized certificate for 150,000 restricted shares of CFWH
common stock;
(d) to
Med-Air, a
Membership Transfer Agreement evidencing the transfer by CFWH of
the
CFWH Southampton Interests to Med-Air in the form attached hereto as Exhibit
B,
free and clear of all Liens and Encumbrances;
(e) the
certificate dated the Closing Date signed by the Chief Executive Officer of
CFWH
referred to in Sections 12.3(a) and (b) hereof; and
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(f) a
certificate of insurance with respect to the Six Xxxxxxxx naming Med-Air as
an
additional insured.
3.3. Deliveries
by Med-Air.
On the
Closing Date, Med-Air shall deliver, or cause to be delivered, to CFWH the
following items:
(a) a
Membership Transfer Agreement for all of the membership interests owned by
Med-Air in Bayonne LLC, duly executed by Richer and Xxxxxx in the form attached
hereto as Exhibit C, free and clear of all Liens and Encumbrances;
(b) a
Membership Transfer Agreement for all of the membership interests owned by
Med-Air in Raritan Bay LLC, duly executed by Richer and Xxxxxx in the form
attached hereto as Exhibit D,free and clear of all Liens and
Encumbrances;
(c) all
files, books, records, documents, financial, technical and operating data,
computer records and other information in the Med-Air Parties’ possession with
respect to Bayonne LLC; and
(d) the
certificate dated the Closing Date signed by Richer and Xxxxxx referred to
in
Sections 12.2(a) and (b) hereof.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF CFWH
CFWH
hereby represents and warrants to the Med-Air Parties as follows, except in
all
cases as disclosed in the Disclosure Schedules:
4.1. Corporate
Organization.
CFWH is
duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its organization. CFWH has all requisite power and authority
to
own its properties and assets and to conduct its business as now
conducted.
4.2. Authorization
and Validity.
CFWH
has all requisite power and authority to enter into this Agreement and the
Transaction Documents to which it is or will be a party and to carry out its
obligations hereunder and thereunder. The execution and delivery of this
Agreement and the Transaction Documents and the performance by CFWH of its
obligations hereunder and thereunder have been duly authorized by all necessary
action by the board of directors of CFWH, and no other proceedings on the part
of CFWH are necessary to authorize such execution, delivery and performance.
This Agreement and the Transaction Documents have been or will be duly executed
by CFWH and constitutes or will constitute, when executed, its valid and binding
obligation, enforceable against it in accordance with the terms herein and
therein, except that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws affecting or relating to the enforcement of creditors’ rights
generally and subject, as to enforceability, to general principles of
equity.
4.3. No
Conflict or Violation.
The
execution, delivery and performance by CFWH of this Agreement and the
Transaction Documents do not and will not (i) violate or conflict with any
provision of the certificate of incorporation or by-laws (collectively, the
“Organizational
Documents”)
of
CFWH or (ii) violate any provision of law, regulation, rule or other legal
requirement of any Government (“Law”)
or any
order, judgment or decree of any court or Government (“Order”)
applicable to CFWH.
8
4.4. Southampton
Membership Interests.
At
Closing, CFWH shall hold of record and own beneficially good and valid title
to
the Southampton Membership Interests, free and clear of any restrictions on
transfer (other than restrictions under the 1933 Act and state securities laws),
taxes, Liens, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands. Other than the operating agreement governing
Southampton LLC, CFWH is not a party to any option, warrant, purchase right,
or
other contract or commitment (other than this Agreement) that could require
CFWH
to sell, transfer, or otherwise dispose of the Southampton Membership Interests
(or restrict CFWH from doing so) and each of the Parties hereby waives any
rights of first refusal or otherwise it may have with respect to the transfer
of
the Southampton Membership Interests to Med-Air pursuant to the Southampton
Operating Agreement or otherwise. CFWH is not a party to any voting trust,
proxy, or other agreement or understanding with respect to the voting of the
Southampton Membership Interests. CFWH owns all membership interests in
Southampton LLC that are not owned by the Med-Air Parties and no other party
has
any third-party preemptive or subscription rights, rights of first refusal
or
offer, options, put or call rights, warrants or any other agreements or
arrangements to purchase any of the Southampton Membership Interests.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF MED-AIR
Med-Air
hereby represents and warrants to CFWH as follows, except in all cases as
disclosed in the Disclosure Schedules.
5.1. Corporate
Organization.
Med-Air
is duly organized, validly existing and in good standing under the Laws of
the
jurisdiction of its organization. Med-Air has all requisite power and authority
to own its properties and assets and to conduct its business as now
conducted.
5.2. Authorization
and Validity.
Med-Air
has all requisite power and authority to enter into this Agreement and the
Transaction Documents to which it is or will be a party and to carry out its
obligations hereunder and thereunder. The execution and delivery of this
Agreement and the Transaction Documents and the performance of Med-Air’s
obligations hereunder and thereunder have been duly authorized by all necessary
action by the board of directors of Med-Air, and no other proceedings on the
part of Med-Air are necessary to authorize such execution, delivery and
performance. This Agreement and the Transaction Documents to which Med-Air
is or
will be a party have been or will be duly executed by Med-Air and constitute
or
will, when executed, constitute its valid and binding obligation, enforceable
against it in accordance with the terms herein and therein, except that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting or relating to the enforcement of creditors’ rights generally and
subject, as to enforceability, to general principles of equity.
5.3. No
Conflict or Violation.
The
execution, delivery and performance by Med-Air of this Agreement and the
execution and delivery of the Transaction Documents do not and will not (i)
violate or conflict with any provision of the Organizational Documents of
Med-Air, or (ii) violate any provision of Law, or any Order applicable to
Med-Air.
9
5.4. Med-Air
Membership Interests.
At
Closing, the Med-Air Parties shall hold of record and own beneficially good
and
valid title to the Med-Air Membership Interests, free and clear of any
restrictions on transfer (other than restrictions under the 1933 Act and state
securities laws), taxes, Liens, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands. Other than the Med-Air Operating
Agreements, Med-Air is not a party to any option, warrant, purchase right,
or
other contract or commitment (other than this Agreement) that could require
Med-Air to sell, transfer, or otherwise dispose of the Med-Air Membership
Interests (or restrict Med-Air from doing so) and each of the Parties hereby
waives any rights of first refusal or otherwise it may have with respect to
the
transfer of the Med-Air Membership Interests to CFWH pursuant to the Med-Air
Operating Agreement or otherwise. Med-Air is not a party to any voting trust,
proxy, or other agreement or understanding with respect to the voting of the
Med-Air Membership Interests. The Med-Air Parties own all Med-Air Membership
Interests and no other party (other than CFWH) has any third-party preemptive
or
subscription rights, rights of first refusal or offer, options, put or call
rights, warrants or any other agreements or arrangements to purchase any of
the
Med-Air Membership Interests and, except for the Med-Air Membership Interests,
none of Med-Air nor any of its Related Persons has any legal or beneficial
interest in any of the Med-Air Transferred LLCs or any of their assets except
for de
minimis
assets.
Xxxxxx hereby represents and warrants to CFWH that he owns (a) 20% of the
membership interests in Bayonne LLC and (b) 25.5% of the membership interests
Raritan Bay LLC. Richer hereby represents and warrants to CFWH that he owns
(a)
20% of the membership interests in Bayonne LLC and (b) 25.5% of the membership
interests Raritan Bay LLC.
5.5. Far
Rockaway Contract. As of the date hereof, the balance remaining due from Far
Rockaway LLC to Med-Air under the Far Rockaway Contract for the Far Rockaway
Xxxxxxxx is, in the aggregate, not more than $42,000.00 (inclusive of the
$9,950.00 purchase price for the Far Rockaway Xxxxxxxx referred to in Section
7.5 of this Agreement).
5.6. Certain
Centers. Schedule 5.6 of the Disclosure Schedules sets forth a complete and
correct list of each of the hospitals (and the location of such hospital) which,
as of and/or prior to March 26, 2007, any of the Med-Air Parties or their
respective Affiliates were negotiating with or had an agreement to assist,
facilitate, or operate a Center, which Centers and/or hospitals were brought
to
the attention of the Med-Air Parties through Keith, Elise, Xxx Xxxxx, and/or
Xxxx Xxxxxx or any of their respective Affiliates.
5.7. Prohibited
Business. None of the Med-Air Parties have directly or indirectly engaged,
acquired, or negotiated to acquire an economic or other interest, in any
Prohibited Enterprise since March 26, 2007.
5.8. Med-Air
Center Portfolio. Schedule 5.8 of the Disclosure Schedules sets forth a
complete and correct list (by name and address) of all of the Centers which
the
Med-Air Parties and their respective Affiliates own, operate, or have an
economic interest in (or are negotiating to own, operate, or have an economic
interest in), as of the Effective Date.
10
5.9. Other
Agreements Between the Parties. No agreements exist among any of the Parties
other than the Med-Air Contracts, except as set forth on Schedule 5.9 of the
Disclosure Schedules.
ARTICLE
6
COVENANTS
OF CFWH
CFWH
hereby covenants to the Med-Air Parties as follows:
6.1. Actions
Before Closing.
CFWH
shall use commercially reasonable efforts to perform and satisfy all conditions
to either Party’s obligations to consummate the transactions contemplated by
this Agreement that are to be performed or satisfied by CFWH under this
Agreement.
6.2. Consents
and Approvals.
CFWH
shall use commercially reasonable efforts to obtain all Consents required to
be
obtained by CFWH in connection with the execution, delivery and performance
by
CFWH of this Agreement and the Transaction Documents.
6.3. Further
Assurances.
Upon
the request and at the sole expense of Med-Air at any time on or after the
Closing Date, CFWH shall execute and deliver such documents, and take such
actions, as Med-Air or its counsel may reasonably request, to effectuate the
purposes of this Agreement.
6.4. Notices.
CFWH
shall provide Med-Air with prompt written notice of CFWH’s Knowledge of (i) any
breach of any representation or warranty by Med-Air or (ii) any other material
failure by Med-Air to comply with the obligations of this
Agreement.
6.5. Non-Solicitation.
CFWH shall not, directly or indirectly (through Related Persons or otherwise)
for a period of thirty-six (36) months following the Closing Date: (a)
do
business with or undertake
any
efforts to open or otherwise establish, or negotiate to open or otherwise
establish, any Center in the Med-Air Center Portfolio, and (b) do business
with
or undertake any efforts to solicit for employment, or to employ (whether as
an
employee, consultant, independent contractor or otherwise), for CFWH or any
of
its respective Related Persons or any hospital or medical facility, any Person:
(i) employed by the Med-Air Parties or (ii) who renders service to any Center
in
the Med-Air Center Portfolio.
6.6. Non-disparagement.
CFWH will not directly or indirectly disparage any of the Med-Air Parties (or
their respective agents or employees), or make or solicit any comments,
statements, or the like to any Person or entity that may be considered
derogatory or detrimental to the good name or business reputation of the Med-Air
Parties. Nothing herein shall be deemed to constrain CFWH’s cooperation in any
governmental action.
11
ARTICLE
7
COVENANTS
OF MED-AIR PARTIES
The
Med-Air Parties hereby covenant to CFWH as follows:
7.1. Actions
Before Closing Date.
The
Med-Air Parties shall use commercially reasonable efforts to perform and satisfy
all conditions to either Party’s obligations to consummate the transactions
contemplated by this Agreement that are to be performed or satisfied by the
Med-Air Parties under this Agreement.
7.2. Consents
and Approvals.
The
Med-Air Parties shall use commercially reasonable efforts to obtain all Consents
required to be obtained by the Med-Air Parties in connection with the execution,
delivery and performance by the Med-Air Parties of this Agreement and the
Transaction Documents.
7.3. Further
Assurances.
Upon
the request and at the sole expense of CFWH at any time on or after the Closing
Date, the Med-Air Parties shall execute and deliver such documents, and take
such actions, as CFWH or its counsel may reasonably request, to effectuate
the
purposes of this Agreement.
7.4. Notices.
Med-Air
shall provide CFWH with prompt written notice of Med-Air’s Knowledge of (i) any
breach of any representation or warranty by CFWH or (ii) any other material
failure by CFWH to comply with the obligations of this Agreement.
7.5. Option
to Purchase Far Rockaway Xxxxxxxx.
Med-Air
covenants and agrees that Far Rockaway LLC shall have the option to purchase
the
Far Rockaway Xxxxxxxx from Med-Air, free and clear of all Liens and
Encumbrances, for a purchase price of $9,950.00 for all
of such
xxxxxxxx. This purchase option may only be exercised within the thirty (30)
day
period after the expiration of the term of each of the leases relating to the
Far Rockaway Xxxxxxxx and only so long as no payment default exists under such
leases. The purchase option shall be deemed exercised on the day Med-Air
receives payment of the purchase price
together
with a schedule listing each of the xxxxxxxx which are to be purchased and
a
written statement from the Person exercising the purchase option setting forth
that such Person holds the purchase option and identifies which of the xxxxxxxx
such Person wishes to Purchase. Within ten (10) Business Days after the exercise
of the purchase option, Med-Air shall deliver a xxxx of sale relating to the
xxxxxxxx purchased and such other documents as purchaser may reasonably require.
Far Rockaway LLC shall have the right to assign said purchase option to an
Affiliate or any other Person and, if so assigned, Far Rockaway LLC shall
promptly notify Med-Air of such assignment.
7.6. Non-Solicitation.
The
Med-Air Parties shall not, directly or indirectly (through Related Persons,
family members or otherwise) for a period of thirty-six (36) months following
the Closing Date: (a) do business with or undertake any efforts to open or
otherwise establish, or negotiate to open or otherwise establish, any Center
in
the CFWH Center Portfolio, and (b) do business with or undertake any efforts
to
solicit for employment, or to employ (whether as an employee, consultant,
independent contractor or otherwise), for the Med-Air Parties or any of their
respective Related Persons or any hospital or medical facility, any Person:
(i)
employed by CFWH or (ii) who renders service to any Center in the CFWH Center
Portfolio.
7.7. Non-Disparagement.
The
Med-Air Parties will not directly or indirectly disparage CFWH (or its
respective agents or employees), or make or solicit any comments, statements,
or
the like to any Person or entity that may be considered derogatory or
detrimental to the good name or business reputation of CFWH. Nothing herein
shall be deemed to constrain Med-Air’s cooperation in any Board authorized
investigation or governmental action.
12
7.8. Prohibited
Enterprise. The Med-Air Parties agree that on and after the Closing Date,
none of them shall, directly or indirectly, engage, acquire or negotiate to
acquire an economic or other interest in any Prohibited Enterprise, without
first obtaining CFWH’s express written consent.
7.9. Names.
The Med-Air Parties covenant that they shall promptly (a) cause the name of
their Affiliate, “The Center For Wound Healing of NY/NJ, Inc.” to be changed to
a name, approved by CFWH; provided, however, that CFWH’s approval
shall not be unreasonably withheld; (b) not conduct any business (including,
without limitation, marketing or promotional activities, under the name “The
Center For Wound Healing of NY/NJ, Inc.” except that they shall be permitted to
continue to use such name for banking, tax and payroll purposes, so long as
such
activity does not create any confusion of identity in the marketplace between
such entity and CFWH and its Affiliates; (c) promptly change the checks (other
than payroll checks), use commercially reasonable efforts to change contracts
(including any hospital contracts and agreements) entered into on or after
March
26, 2007 and all other business forms to reflect the change of name of “The
Center For Wound Healing of NY/NJ, Inc.” referenced in clause (a) above; and (d)
as may be requested by CFWH, participate with CFWH in meeting (at no expense
to
the Med-Air Parties) with hospitals (including, without limitation,
Xxxxxx-Xxxxxxxxxx Hospital) and CFWH’s other business partners to clear up any
confusion in the marketplace. Notwithstanding the foregoing, Med-Air shall
be
allowed to use the name “Center For Wound Healing and Hyperbaric Medicine”
and/or a derivative thereof and by execution of this Agreement, CFWH consents
to
the use of such name.
ARTICLE
8
SIX
XXXXXXXX
8.1. Usage.
Med-Air
shall permit CFWH or any of CFWH’s Affiliates to have the exclusive use of the
Six Xxxxxxxx at one or more locations at which CFWH or its Affiliates operate
the Business for the period commencing on the Closing Date and ending on the
earlier of (a) the thirtieth (30) day after all of CFWH’s obligations under the
Med-Air Note have been satisfied; and (b) June 30, 2010 (the “Usage
Period”).
At
the end of the Usage Period, if the Purchase Option has not been exercised
as to
any of the Six Xxxxxxxx, Med-Air shall promptly (at its own cost and expense)
remove any of the Six Xxxxxxxx as to which the Purchase Option was not
exercised. CFWH shall co-operate with Med-Air as may be reasonably required
to
allow Med-Air access to those locations where the Six Xxxxxxxx may be
located.
8.2. No
Charge for Use.
Neither
CFWH nor any of its Affiliates shall be obligated to pay any rent, fees or
other
charges for their respective usage of the Six Xxxxxxxx during the Usage
Period.
13
8.3. Ownership.
Med-Air
shall continue to own and hold title to the Six Xxxxxxxx free and clear of
all
Liens and Encumbrances until such time as CFWH or one of its Affiliates
exercises the Purchase Option. Until the Purchase Option is exercised, neither
CFWH nor any of its Affiliates shall sell, exchange, assign, loan, lease,
mortgage or otherwise dispose of any of the Six Xxxxxxxx. During the Usage
Period, CFWH shall keep the Six Xxxxxxxx insured against loss by fire (including
extended coverage), theft, damage and other casualty and shall also maintain
liability insurance covering the operations of the Six Xxxxxxxx, in such amounts
and on such terms as CFWH has previously insured the Six Xxxxxxxx, with Med-Air
named as an additional insured. CFWH shall maintain the Six Xxxxxxxx in
accordance with the standard of care in the industry at CFWH’s sole expense. Any
security interests Med-Air has in the Six Xxxxxxxx and any rights Med-Air has
as
a secured creditor with respect to the Six Xxxxxxxx, whether granted under
any
of the Operating Agreements or otherwise, shall continue in full force and
effect.
8.4. Purchase
Option.
Med-Air
hereby grants to CFWH the option to purchase each of the Six Xxxxxxxx for $1.00
each. CFWH shall have the right to assign said purchase option to an Affiliate
or any other Person and, if so assigned, CFWH shall promptly notify Med-Air
of
such assignment. The Purchase Option may only be exercised within the thirty
(30) day period after all of CFWH’s obligations under the Med-Air Note have been
satisfied and only so long as there is no Event of Default existing under the
Med-Air Note. The purchase option shall be deemed exercised on the day Med-Air
receives payment of the purchase price ($1.00 for each of the Six Xxxxxxxx
as to
which the purchase option is exercised; $6.00 if the purchase option is
exercised for all Six Xxxxxxxx) together with a schedule listing each of the
Six
Xxxxxxxx which are to be purchased and a written statement from the Person
exercising the Purchase Option setting forth that such Person holds the purchase
option and identifies which of the Six Xxxxxxxx such Person wishes to Purchase.
Within ten (10) Business Days after the exercise of the Purchase Option, Med-Air
shall deliver a xxxx of sale relating to the xxxxxxxx purchased and such other
documents as purchaser may reasonably require.
8.5. Removal
of Xxxxxxxx.
CFWH
shall have the right to move one or more of the Six Xxxxxxxx without obtaining
permission from Med-Air to do so; provided,
however,
that if
any of the Six Xxxxxxxx are removed from their current locations, CFWH agrees
that it shall notify Med-Air, in writing prior to the removal date, of their
removal and their new location.
8.6. Maintenance
and Service.
It
shall be the sole responsibility of CFWH to maintain, operate, insure and
service the Six Xxxxxxxx, all in conformity with applicable manufacturer’s,
hospital, Governmental and regulatory rules, regulations, guidelines and
standards. Nothing herein contained shall obligate CFWH or any of its Affiliates
to replace any of the Six Xxxxxxxx should they become inoperable.
ARTICLE
9
RELEASES
9.1. Far
Rockaway Note.
Notwithstanding any provision of this Agreement to the contrary, CFWH shall
remain liable to pay the Far Rockaway Note when due, in accordance with the
terms thereof.
14
9.2. General
Release.
EFFECTIVE AS OF THE CLOSING DATE, (I) THE CFWH GROUP HEREBY FULLY AND FINALLY
WAIVES, RELEASES, ACQUITS AND FOREVER DISCHARGES EACH MEMBER OF THE MED-AIR
GROUP, AND (II) THE MED-AIR GROUP HEREBY FULLY AND FINALLY WAIVES, RELEASES,
ACQUITS AND FOREVER DISCHARGES EACH MEMBER OF THE CFWH GROUP FROM ANY AND ALL
CAUSES OF ACTION, CLAIMS, COUNTERCLAIMS, SUITS, ATTORNEYS’ FEES, COSTS,
CONTROVERSIES, DEMANDS AND OTHER OBLIGATIONS AND LIABILITIES OF ANY KIND,
WHETHER IN LAW OR EQUITY, AND WHETHER KNOWN OR UNKNOWN, THAT SUCH RELEASING
PARTY HAD OR NOW HAS, AND ANY KIND THAT WAS OR MIGHT HAVE BEEN ALLEGED BY ANY
SUCH RELEASING PARTY, IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THE
MED-AIR CONTRACTS (EXCEPT TO THE EXTENT ARISING OUT OF OR RELATING TO THE FAR
ROCKAWAY CONTRACTS) (IN EACH CASE, IN RESPECT OF THE PERIOD PRIOR TO, ON OR
AFTER THE EFFECTIVE DATE), NOTWITHSTANDING THE FAULT, STRICT LIABILITY, BREACH
OF CONTRACT OR NEGLIGENCE, WHETHER SOLE, JOINT OR CONCURRENT OR ACTIVE OR
PASSIVE, OF THE PERSON RELEASED BY THIS PARAGRAPH 9.2 OR WHETHER ASSERTED IN
CONTRACT, IN WARRANTY, IN TORT, BY STATUTE OR OTHERWISE; PROVIDED,
HOWEVER,
THAT
(A) THIS PARAGRAPH 9.2 SHALL NOT APPLY TO ANY CLAIM BY (1) MED-AIR FOR BREACH
OF
THIS AGREEMENT OR THE MED-AIR NOTE BY CFWH OR (2) CFWH OR ANY OF ITS AFFILIATES
AGAINST ANY OF THE MED-AIR PARTIES OR THEIR AFFILIATES RELATING TO THE
OPERATION, MANAGEMENT, OWNERSHIP, OR ACQUISITION OF ANY HYPERBARIC OR WOUND
CARE
CENTER ON OR PRIOR TO THE DATE HEREOF WHICH IS NOT LISTED ON SCHEDULE 5.6 OR
(3)
CFWH FOR BREACH OF THIS AGREEMENT BY ANY OF THE MED-AIR PARTIES; (B) IF THE
MED-AIR NOTE IS NOT PAID IN ACCORDANCE WITH ITS TERMS (SUBJECT TO ANY APPLICABLE
CURE PERIOD) DURING THE TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSING DATE,
THIS PARAGRAPH 9.2 SHALL BE DEEMED NULL AND VOID AB
INITIO
WITH
RESPECT TO THE RELEASE GRANTED IN THIS PARAGRAPH 9.2 BY THE MED-AIR GROUP ONLY
AND SHALL HAVE NO FURTHER FORCE OR EFFECT WITH RESPECT TO THE RELEASE GRANTED
IN
THIS PARAGRAPH 9.2 BY THE MED-AIR GROUP; (C) NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT OR THIS PARAGRAPH 9.2 TO THE CONTRARY, IN THE EVENT THAT THE RELEASE
GRANTED BY THE MED-AIR GROUP IS DEEMED NULL AND VOID AND OF NO FURTHER FORCE
OR
EFFECT PURSUANT TO THE IMMEDIATELY PRECEEDING CLAUSE OR OTHERWISE, EACH MEMBER
OF THE CFWH GROUP SHALL BE ENTITLED TO RAISE AND ASSERT ANY AND ALL
COUNTERCLAIMS, SETOFFS AND DEFENSES IT MAY HAVE (AS IF NO RELEASE BY THE CFWH
GROUP HAD BEEN GRANTED HEREUNDER) IN CONNECTION WITH ANY CLAIM, ACTION OR SUIT
ASSERTED OR BROUGHT BY ANY MEMBER OF THE MED-AIR GROUP; (D) NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IF ANY MEMBER OF THE MED-AIR GROUP
ASSERTS OR BRINGS ANY CLAIM, ACTION OR SUIT SOLELY BASED UPON CFWH’S FAILURE TO
PAY THE MED-AIR NOTE WHEN DUE, NO MEMBER OF THE CFWH GROUP SHALL BE ENTITLED
TO
RAISE OR ASSERT ANY COUNTERCLAIM, SETOFF OR DEFENSE OTHER THAN A DEFENSE OF
ACTUAL PAYMENT OR RIGHT TO CURE; AND (E) NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL THE TRANSFER OF ANY MEMBERSHIP
INTEREST HEREUNDER BE SUBJECT TO REVERSAL.
15
9.3. Rights
as a Member. Med-Air, in its capacity as a member of each of the Med-Air
Transferred LLCs, and CFWH, in its capacity as a member of Southampton LLC,
hereby waive and relinquish, as of the Closing Date, all of their respective
rights, benefits and other entitlements (including, without limitation, profits,
distributions, capital accounts, and tax benefits), whether or not accrued
as of
the Closing Date, under the applicable operating agreements relating to such
limited liability companies or otherwise under applicable Law.
9.4. Med-Air’s
Rights to the Med-Air Xxxxxx-Xxxxx Interests. The Med-Air Parties hereby (a)
sell, assign, transfer, and set over to CFWH, as of the Closing Date, all of
their rights, title, and interest in and to the Med-Air Xxxxxx-Xxxxx Interests,
together with all rights, profits, revenues, benefits and privileges belonging
or pertaining thereto or enjoyed in connection therewith, (b) waive and
relinquish, as of the Closing Date, all of their respective rights, benefits
and
other entitlements (including, without limitation, profits and revenues) in
and
under the Med-Air Xxxxxx-Xxxxx Interests, and (c) release, acquit and forever
discharge each member of the CFWH Group from any claims, causes of action and
counterclaims of any kind, whether arising in law or equity, and whether known
or unknown, arising out of or related to the Med-Air Xxxxxx-Xxxxx Interests.
ARTICLE
10
TAXES
10.1. Taxes
Related to Purchase of Membership Interests.
All
state and local sales, use, gross-receipts, transfer, excise, value-added or
other similar Taxes on the transfer of the Membership Interests and (ii) other
Taxes based on or measured by income or revenues), and all recording and filing
fees that may be imposed by reason of the sale, transfer, assignment and
delivery of the Membership Interests (collectively, “Transaction
Taxes”),
shall
be paid by the transferee on or prior to their due date.
10.2. Cooperation
on Tax Matters.
CFWH
and Med-Air shall (and shall cause their respective Affiliates to) cooperate
fully with each other and make available or cause to be made available to each
other for consultation, inspection and copying (at such other party’s expense)
in a timely fashion such personnel, Tax data, relevant Tax Returns or portions
thereof and filings, files, books, records, documents, financial, technical
and
operating data, computer records and other information as may be reasonably
required (a) for the preparation by such other party of any Tax Returns or
(b)
in connection with any Tax audit or proceeding including one party (or an
Affiliate thereof) to the extent such Tax audit or proceeding relates to or
arises from the transactions contemplated by this Agreement.
10.3. Retention
of Tax Records.
After
the Closing Date and until 4 years after the Closing Date, Med-Air and CFWH
shall retain possession of all accounting, business, financial and Tax records
and information in their possession that (a) relate to the Membership Interests
and are in existence on the Closing Date and (b) come into existence after
the
Closing Date but relate to the Membership Interests before the Closing Date.
In
addition, from and after the Closing Date, the Parties shall provide to each
other (after reasonable notice. and during normal business hours and without
charge) access to the books, records, documents and other information relating
to the Membership Interests may reasonably be necessary to (i) properly prepare
for, file, prove, answer, prosecute and defend any Tax Return, claim, filing,
tax audit, tax protest, suit, proceeding or answer. Such access shall include
access to any computerized data regarding the Membership Interests (to the
extent relating to the period before the Closing Date).
16
10.4. Unbilled
Transactional Taxes.
If a
Tax assessment is levied upon any Party by an authorized tax jurisdiction for
unbilled Transaction Taxes that are the obligation of the other Party under
this
Agreement, then the non-assessed Party shall reimburse the assessed Party for
those taxes including any interest and penalty.
ARTICLE
11
RIGHT
OF FIRST REFUSAL
11.1. If
Med-Air or any of its Affiliates receives a bona fide offer (an “Offer”)
from a
non-Affiliate (a “Third
Party”)
for
the purchase of (a) all or any portion of such entity’s interest in (i) any
entity that owns or operates a Center or (ii) any contract to develop, construct
or operate, or otherwise advise in the development, construction, or operation
of a Center or (b) all or substantially all of the assets of (i) Med-Air or
(ii)
a Subsidiary of Med-Air (a “Med-Air
Transaction”)
and
Med Air is willing to accept such Offer, Med-Air, before it accepts such Offer,
shall first provide CFWH with the opportunity to consummate the Med-Air
Transaction on the same terms and conditions as are set forth in the Offer.
Med-Air shall communicate the Offer to CFWH by written notice (the “Notice”)
with a
written copy of the terms of the Med-Air Transaction that Med-Air received
from
the Third Party. If CFWH wishes to consummate the Med-Air Transaction on such
terms and conditions, CFWH shall provide written notice to Med-Air within twenty
(20) days of CFWH’s receipt of the Notice if the Offer is for $1,000,000 or less
and within forty-five (45) days of CFWH’s receipt of the Notice if the Offer is
for more than $1,000,000 (the “Acceptance
Deadline”);
provided, however, that CFWH shall be entitled to conduct due
diligence with respect to a Med-Air Transaction for at least as long as a Third
Party was entitled to conduct due diligence with respect thereto. In the event
that CFWH declines by written notice to Med-Air to consummate the Transaction
on
such terms and conditions or otherwise fails to respond to the Notice prior
to
the Acceptance Deadline, Med-Air shall be entitled to consummate the Transaction
with the Third Party on the terms and conditions set forth in the Offer.
Following CFWH’s receipt of a Notice, Med-Air shall timely comply with all
reasonable due diligence requests made by CFWH.
ARTICLE
12
CONDITIONS
PRECEDENT TO PERFORMANCE BY PARTIES
12.1. Conditions
Precedent to Performance by the Parties.
The
respective obligations of CFWH and the Med-Air Parties to consummate the
transactions contemplated by this Agreement are subject to the satisfaction,
on
or prior to the Closing Date, of the condition that no preliminary or permanent
injunction or other Order that declares this Agreement invalid or unenforceable
in any respect or that prevents the consummation of the transactions
contemplated hereby or thereby shall be in effect.
12.2. Conditions
Precedent to Performance by CFWH.
The
obligations of CFWH to consummate the transactions contemplated by this
Agreement are subject to the satisfaction, on or before the Closing Date, of
the
following conditions, any one or more of which may be waived by CFWH in its
sole
discretion:
17
(a) Representations
and Warranties of the Med-Air Parties.
All
representations and warranties made by the Med-Air Parties in this Agreement
shall be true and correct in all material respects on and as of the Closing
Date
as if again made by Med-Air on and as of such date (or, if made as of a specific
date, at and as of such date), and CFWH shall have received a certificate dated
the Closing Date and signed by Richer and Xxxxxx to that effect.
(b) Performance
of the Obligations of the Med-Air Parties.
The
Med-Air Parties shall have performed in all material respects all obligations
required under this Agreement to be performed by it on or before the Closing
Date (which obligations shall be performed in all respects as required under
this Agreement), and CFWH shall have received a certificate dated the Closing
Date and signed by Richer and Xxxxxx to that effect.
(c) Med-Air’s
Deliveries.
Med-Air
shall have delivered, and CFWH shall have received, (i) all of the items as
set
forth in Section 3.3 and (ii) the Disclosure Schedules.
(d) Material
Adverse Effect.
No
Material Adverse Effect shall have occurred and be continuing.
12.3. Conditions
Precedent to the Performance by Med-Air.
The
obligations of the Med-Air Parties to consummate the transactions contemplated
by this Agreement are subject to the satisfaction, on or before the Closing
Date, of the following conditions, any one or more of which may be waived by
Med-Air in its sole discretion:
(a) Representations
and Warranties of CFWH.
All
representations and warranties made by CFWH in this Agreement shall be true
and
correct in all material respects on and as of the Closing Date as if again
made
by CFWH on and as of such date (or, if made as of a specific date, at and as
of
such date), and Med-Air shall have received a certificate dated the Closing
Date
and signed by the Chief Executive Officer of CFWH to that effect.
(b) Performance
of the Obligations of CFWH.
CFWH
shall have performed in all material respects all obligations required under
this Agreement to be performed by it on or before the Closing Date (which
obligations shall be performed in all respects as required under this Agreement)
and Med-Air shall have received a certificate dated the Closing Date and signed
by the Chief Executive Officer of CFWH to that effect.
(c) CFWH’s
Deliveries.
CFWH
shall have delivered, and the Med-Air Parties shall have received, all of the
items as set forth in Section 3.2.
(d) Material
Adverse Effect.
No
Material Adverse Effect shall have occurred and be continuing.
18
ARTICLE
13
TERMINATION
13.1. Effect
of Failure of CFWH’s Conditions to Closing.
CFWH
may terminate this Agreement at any time before Closing if any condition
contained in Section 12.2, except for those obligations to be performed at
Closing, which are not capable of satisfaction until Closing, is not satisfied
or waived by CFWH as of such time; provided, however, that CFWH shall not have
the right to terminate this Agreement under this Section 13.1 if CFWH’s failure
to fulfill any of its obligations under this Agreement is the reason that the
relevant condition is not satisfied as of such date.
13.2. Effect
of Failure of Med-Air’s Conditions to Closing.
Med-Air
may terminate this Agreement at any time before Closing if any condition
contained in Section 12.3 is not satisfied or waived as of such time, except
for
those obligations to be performed at Closing, which are not capable of
satisfaction until Closing; provided, however, that Med-Air shall not have
the
right to terminate this Agreement under this Section 13.2 if Med-Air failure
to
fulfill any of its obligations under this Agreement is the reason that the
relevant condition is not satisfied as of such date.
ARTICLE
14
MISCELLANEOUS
14.1. Successors
and Assigns.
Except
as otherwise provided in this Agreement or the Med-Air Note, no Party hereto
shall assign this Agreement or any rights or obligations hereunder without
the
prior written consent of the other Parties hereto (which consent shall not
be
unreasonably withheld), and any such attempted assignment without such prior
written consent shall be void and of no force and effect. This Agreement shall
inure to the benefit of and shall be binding upon the successors and permitted
assigns of the Parties hereto.
14.2. Governing
Law; Jurisdiction.
This
Agreement shall be construed, performed and enforced in accordance with, and
governed by, the Laws of the State of
New York (without giving effect to the
principles of conflicts of Laws thereof). Any legal action or proceeding with
respect to this Agreement or the transactions contemplated hereby may be brought
in the courts of the State of
New York sitting in Manhattan or of the United
States for the Southern District of
New York, and by execution and delivery
of
this Agreement, each of the Parties consents to the nonexclusive jurisdiction
of
those courts. Each of the Parties irrevocably waives any objection, including
any objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any action
or
proceeding in such jurisdiction in respect of this Agreement or the transactions
contemplated hereby.
14.3. Warranties
Exclusive.
The
representations and warranties contained herein and in the Transaction Documents
are the only representations or warranties given by the Parties and all other
express or implied warranties are disclaimed. Without limiting the foregoing,
the Parties acknowledge that, except for the representations and warranties
contained herein and in the Transaction Documents, the Membership Interests
are
conveyed “AS IS,” “WHERE IS” and “WITH ALL FAULTS” and that, except for the
representations and warranties contained herein and in the Transaction
Documents, all warranties of merchantability, usage or suitability or fitness
for a particular purpose are disclaimed. Without limiting the foregoing, the
Parties further acknowledge that, except for and limited to the specific
representations and warranties contained herein and in the Transaction
Documents, no material or information provided by or communications made by
the
parties or their respective agents will create any representation or warranty
of
any kind, whether express or implied, with respect to the Membership Interests
and the title thereto, the operation of the Business, or the prospects
(financial and otherwise), risks and other incidents of the
Business.
19
14.4. Survival
of Representations, Warranties and Covenants.
If this
Agreement is terminated for any reason between the Effective Date and the
Closing Date, none of the representations, warranties, or covenants contained
herein shall survive the date of termination. If the Closing shall take place,
(a) all representations and warranties contained herein shall survive the
Closing Date and shall expire on the fifth (5th) anniversary of the Closing
Date, other than the representations and warranties set forth in Sections 5.1,
5.2, 5.3 and 5.4 of this Agreement, which shall expire on the first (1st)
anniversary of the Closing Date, and (b) all covenants contained herein shall
survive the Closing Date.
14.5. Mutual
Drafting.
This
Agreement is the result of the joint efforts of Med-Air and CFWH, and each
provision hereof has been subject to the mutual consultation, negotiation and
agreement of the parties and there is to be no construction against either
party
based on any presumption of that party’s involvement in the drafting
thereof.
14.6. Expenses.
Except
as otherwise provided herein, each of the Parties hereto shall pay its own
expenses in connection with this Agreement and the transactions contemplated
hereby, including any legal and accounting fees, whether or not the transactions
contemplated hereby are consummated.
14.7. Severability.
In the
event that any part of this Agreement is declared by any court or other judicial
or administrative body to be null, void or unenforceable, said provision shall
survive to the extent it is not so declared, and all of the other provisions
of
this Agreement shall remain in full force and effect only if, after excluding
the portion deemed to be unenforceable, the remaining terms shall provide for
the consummation of the transactions contemplated hereby in substantially the
same manner as originally set forth at the later of the date this Agreement
was
executed or last amended.
14.8. Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given: (a) on the date
of
service if served personally on the party to whom notice is to be given; (b)
on
the day of transmission if sent via facsimile transmission to the facsimile
number given below and confirmation of successful transmission is obtained
(for
this purpose, an activity report of the sender’s facsimile machine showing the
confirmation of successful transmission is sufficient); (c) on the day after
delivery to Federal Express or similar overnight courier or the Express Mail
service maintained by the United States Postal Service or (d) on the fifth
(5th)
day after mailing, if mailed to the party to whom notice is to be given, by
first class mail, registered or certified, postage prepaid and properly
addressed, to the party as follows:
If
to
Med-Air:
Med-Air
Consultants, Inc.
0
Xxxxxxxxx Xxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxx
Facsimile:
______________
20
Copy
to:
Moritt
Xxxx Hamroff & Xxxxxxxx LLP
000
Xxxxxx Xxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
Attention:
Xxxxxx X'Xxxxxx, Esq.
Facsimile:
(000) 000-0000
If
to
CFWH:
The
Center for Wound Healing, Inc.
000
Xxxxx
0 Xxxxx,
Xxxxxx,
Xxx Xxxxxx 00000
Attention:
Chief Executive Officer
Copy
to:
King
& Spalding LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
If
to
Xxxx Xxxxxx:
Xxxx
Xxxxxx
30
West
Overlook
Port
Washington, NY 11050
Copy
to:
Moritt
Xxxx Hamroff & Xxxxxxxx LLP
400
Xxxxxx Xxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
Xttention:
Xxxxxx X'Xxxxxx, Esq.
Facsimile:
(000) 000-0000
If
to
Xxxx Xxxxxx:
Xxxx
Xxxxxx
25
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
01
Copy
to:
Moritt
Xxxx Hamroff & Xxxxxxxx LLP
400
Xxxxxx Xxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
Xttention:
Xxxxxx X'Xxxxxx, Esq.
Facsimile:
(000) 000-0000
Any
Party
may change its address for the purpose of this Section 14.8 by giving the other
party written notice of its new address in the manner set forth
above.
14.9. Amendments;
Waivers.
This
Agreement may be amended or modified, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. Any waiver by any party of any condition,
or of
the breach of any provision, term, covenant, representation or warranty
contained in this Agreement, in any one or more instances, shall not be deemed
to be nor construed as a furthering or continuing waiver of any such condition,
or of the breach of any other provision, term, covenant, representation or
warranty of this Agreement.
14.10. Schedules.
The
Parties may, at their option, include in the Disclosure Schedules items that
are
not material, and any such inclusion, or any references to dollar amounts,
shall
not be deemed to be an acknowledgment or representation that such items are
material or would cause a Material Adverse Effect, to establish any standard
of
materiality or to define further the meaning of such terms for purposes of
this
Agreement. Information disclosed in the Disclosure Schedules shall constitute
a
disclosure for all purposes of the Section for which such disclosure was made
and each other section for which such disclosure is readily
apparent.
14.11. Public
Announcements.
No
Party shall make any press release or public announcement concerning the
transactions contemplated by this Agreement without the prior written approval
of the other Parties, unless a press release or public announcement is required
by Law. If any such announcement or other disclosure is required by Law, the
disclosing party shall give the nondisclosing Party or Parties prior notice
of,
and an opportunity to comment on, the proposed disclosure.
14.12. Entire
Settlement Agreement.
This
Agreement and the Transaction Documents contain the entire understanding among
the Parties hereto with respect to the transactions contemplated hereby and
supersede and replace all prior and contemporaneous agreements and
understandings, oral or written, with regard to such transactions. All
Disclosure Schedules and Exhibits hereto and any documents and instruments
delivered pursuant to any provision hereof are expressly made a part of this
Agreement as fully as though completely set forth herein.
14.13. Parties
in Interest.
Nothing
in this Agreement is intended to confer any rights or remedies under or by
reason of this Agreement on any Persons other than CFWH and the Med-Air Parties
and their respective successors and permitted assigns, except the rights of
the
Med-Air Entities and CFWH Entities (as applicable) to the releases and the
waivers, allocations and disclaimers of, and limitations on, liability or
remedies set forth in this Agreement. Nothing in this Agreement is intended
to
relieve or discharge the obligations or liability of any third Persons to CFWH
or the Med-Air Parties. No provision of this Agreement shall give any third
Persons any right of subrogation or action over or against CFWH or the Med-Air
Parties.
22
14.14. Headings.
The
article and section headings in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this
Agreement.
14.15. Construction.
Unless
the context of this Agreement otherwise requires, (i) words of any gender
include the other gender, (ii) words using the singular or plural number also
include the plural or singular number, respectively, (iii) the terms “hereof,”
“herein,” “hereby,” and derivative or similar words refer to this entire
Agreement as a whole and not to any other particular Article, Section or other
subdivision, (iv) the words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation,” (v) “shall,” “will,”
or “agrees” are mandatory, and “may” is permissive, and (vi) “or” is not
exclusive.
14.16. Currency.
Except
where otherwise expressly provided, all amounts in this Agreement are stated
and
shall be paid in United States currency.
14.17. Time
of Essence.
Time is
of the essence in this Agreement.
14.18. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute the same agreement. The delivery
of
an executed counterpart of this Agreement by facsimile or pdf shall be deemed
to
be valid delivery thereof. It shall be sufficient in making proof of this
Agreement to produce or account for a facsimile or pdf copy of an executed
counterpart of this Agreement.
ARTICLE
15
DEFINITIONS
15.1. Certain
Terms Defined.
As used
in this Agreement, the following terms shall have the following
meanings:
“1933
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934
Act”
means
the Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
“Affiliate”
means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such first Person
where “control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, through the ownership of
voting securities, by contract, as trustee, executor or otherwise.
“Business”
means
the business of operating a hyperbaric chamber and/or wound care center and
providing services incidental to the foregoing.
23
“Business
Day”
means
any day other than Saturday, Sunday and any day that is a legal holiday or
a day
on which banking institutions in New York, New York are authorized by Law or
other Governmental action to close.
“Center”
means
premises where the Business is conducted.
“CFWH
Center Portfolio”
means
each of the Centers listed on Schedule 7.7 attached hereto.
“CFWH
Group”
means
CFWH and its respective Related Persons.
“Xxxxx
Xxxxx Xxxxxxxx”
means
the two (2) hyperbaric xxxxxxxx used by New York Hyperbaric in connection with
the operation of the Business at the Xxxxx Xxxxx Hospital which have been leased
from Med-Air.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Consent”
means
any consent, approval, authorization, qualification, waiver or notification
of a
Government or other Person, but not including (a) with respect to CFWH, CFWH’s
Board of Directors or any shareholders of CFWH, or (b) with respect to Med-Air,
Med-Air’s Board of Directors or any shareholders of Med-Air.
“Contract”
means
any written or oral contract, agreement, license, sublicense, lease, sublease,
mortgage, instruments, guaranties, commitment, undertaking or other similar
binding arrangement, whether express or implied.
“Disclosure
Schedules”
means
the disclosure schedules attached hereto.
“Disqualified
Person”
means
any Person who is or was (a) an officer or director of CFWH; (b) an employee
of
CFWH; (c) a consultant to CFWH who CFWH paid at least $10,000 on an annualized
basis. Without limiting the foregoing definition, “Disqualified Person” shall
include, without limitation, Xxx Xxxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxx
Xxxxxx, Xxxxxx X. Abou-Taleb and Xxxxx Xxxxxxx.
“Environmental
Laws”
means
all currently existing and future federal, state, provincial, municipal, local
and foreign statutes, ordinances, rules, Orders, regulations, remediation
standards, and other provisions having the force of law for protection of the
environment, including the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended,
the federal Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et
seq.,
as amended, and related state statutes.
“Environmental
Reports”
means
any environmental sampling or report performed specifically to test compliance
with any Environmental Laws, and any and all Phase I or II environmental
assessments, in each case which CFWH has received from an un-Affiliated third
party within the last thee (3) years; provided,
Environmental Reports shall not include any safety, health and environmental
audit reports, or internal investigation reports, prepared under the direction
of a Party’s legal department and privileged under the attorney-client
privilege, attorney workproduct privilege, or state or federal environmental
self-auditing privilege or policy.
24
“Equity
Securities”
means,
with respect to a particular limited liability company, (a) any of such
company’s membership interests and (b) options, warrants or other rights
convertible into, or exercisable or exchangeable for, directly or indirectly,
or
otherwise entitling any Person to acquire, directly or indirectly, any such
membership interests.
“Far
Rockaway Xxxxxxxx”
means
the two (2) hyperbaric xxxxxxxx used in connection with the operation of the
Business at the Far Rockaway Hospital.
“Government”
means
any agency, division, subdivision, audit group, procuring office or governmental
or regulatory authority in any event or any adjudicatory body thereof, of the
United States, any state thereof or any foreign government.
“Hazardous
Materials”
means
and includes any hazardous or toxic substance or waste or any contaminant or
pollutant regulated under Environmental Laws, including, but not limited to,
“hazardous
substances”
as
currently defined by the Federal Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, “hazardous
wastes”
as
currently defined by the Resource Conservation and Recovery Act, as amended,
natural gas, petroleum products or byproducts.
“IRS”
means
the United States Internal Revenue Service.
“Knowledge
of CFWH”,
“CFWH’s
Knowledge”
or
any
other similar term or knowledge qualification means the present actual knowledge
of Xxxxxx X. Xxxxxxx or Xxxxx X. Xxxx.
“Knowledge
of Med-Air”,
“Med-Air’s
Knowledge”
or
any
other similar term means the present actual knowledge of Richer or
Xxxxxx.
“Lien”
means
any mortgage, pledge, charge, security interest, encumbrance, lien (statutory
or
other) or conditional sale agreement.
“Material
Adverse Effect”
means
a
state of facts, event, change, effect or other circumstance that has had or
could reasonably be expected to have a material adverse effect on the Business
of the applicable limited liability company taken as a whole, but excluding
any
state of facts, event, change or effect caused by events, changes or
developments relating to: (i) changes of Laws, (ii) the transactions
contemplated by this Agreement or the announcement thereof; (vi) changes or
conditions generally affecting the industries of which the Business is a part;
(vii) changes in economic, regulatory or political conditions generally; (viii)
any act(s) of war or of terrorism.
“Med-Air
Center Portfolio”
means
each of the Centers listed on Schedule 5.8 attached hereto.
“Med-Air
Group”
means
the Med-Air Parties and their respective Related Persons.
25
“Med-Air
Membership Interests”
means
the Med-Air Parties’ membership interests in Bayonne LLC, Raritan Bay LLC and
Southampton LLC.
“Med-Air
Operating Agreements”
means
the limited liability company operating agreements governing Bayonne LLC,
Raritan Bay LLC.
“Med-Air
Transferred LLCs”
means
Bayonne LLC and Raritan Bay LLC.
“Membership
Interests”
means
the Southampton Membership Interests and Med-Air Membership Interests,
collectively.
“
Membership
Transfer Agreement”
means
an agreement evidencing the transfer of the Membership Interest in a particular
limited liability company.
“Operating
Agreements”
means
the Med-Air Operating Agreements and Southampton Operating Agreements,
collectively.
“Person”
means
any individual, corporation, partnership, joint venture, association, joint
stock company, trust, limited liability company, unincorporated organization,
Government or other entity.
“Prohibited
Enterprise”
means
any business enterprise organized to engage in or engaged in the operation
or
financing of a Center with respect to which any Disqualified Person: (a)
assisted or participated (by introduction, sales lead or otherwise) in the
establishment of such Center; (b) is employed, with or without compensation,
by
the owner and/or operator of such Center; (c) is engaged as a consultant, agent
or an independent contractor, with or without compensation, by the owner and/or
operator of such Center; or (d) holds an economic or other interest; provided,
however, that none of the Centers identified on Schedule 5.6 shall be a
Prohibited Enterprise.
“Purchase
Option”
means
the purchase option granted by Med-Air to CFWH, the terms of which are set
forth
in paragraph 8.4 hereof.
“Related
Person”
means,
with. respect to any Person, all
past,
present and future directors, officers, members, managers, stockholders,
employees, controlling persons, agents, professionals, attorneys, accountants,
investment bankers, Affiliates or representatives of any such
Person.
“SEC”
means
the Securities and Exchange Commission.
“Six
Xxxxxxxx”
means
the Xxxxxx Xxxxxxxxx Xxxxxxxx, the Xxxxx Xxxxx Xxxxxxxx and the Square Xxxxxxxx,
collectively.
“Southampton
Membership Interests”
means
CFWH’s 49% membership interests in Southampton LLC.
“Southampton
Operating Agreement”
means
the limited liability company operating agreement governing Southampton
LLC.
26
“Square
Xxxxxxxx”
means
the two (2) hyperbaric xxxxxxxx used by the Square in connection with the
operation of the Business at Westchester Square Hospital that have been leased
from Med-Air.
“Subsidiary”
means,
with respect to any Person, any corporation, partnership, limited liability
company, association or other business entity of which (a) if a corporation,
a
majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (b) if a partnership, limited liability
company, association or other business entity, a majority of the partnership
or
other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that Person
or a combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a partnership, limited liability
company, association or other business entity if such Person or Persons shall
be
allocated a majority of partnership, limited liability company, association
or
other business entity gains or losses or shall be or control the managing
director or. general partner of such partnership, limited liability company,
association or other business entity.
“Taxes”
means
all taxes, fees, levies, duties and charges, however denominated, including
any
interest, penalties or additions to such taxes, fees, levies, duties and charges
that may become payable in respect thereof, imposed by any Government, which
taxes, fees, levies, duties and charges shall include all income taxes,
Transaction Taxes, payroll and employee withholding, unemployment insurance,
social security (or similar), sales and use, excise, franchise, gross receipts,
occupation, real and personal property, stamp, transfer, workmen’s compensation,
customs duties, registration, documentary, value added, alternative or add-on
minimum, estimated, environmental (including taxes under section 59A of the
Code) and other obligations of the same or a similar nature, whether arising
before, on or after the Closing Date.
“Xxxxxx
Xxxxxxxxx Xxxxxxxx”
means
the two (2) hyperbaric xxxxxxxx used by Jefferson LLC in connection with the
operation of the Business at the Xxxxxx Xxxxxxxxx Hospital that have been leased
from Med-Air.
“Transaction
Documents”
means
the
Membership Transfer Agreements, bills of sale, and any other agreements,
instruments, documents and other writings required to be executed and delivered
by the Med-Air Parties and/or CFWH under this Agreement.
15.2. All
Terms Cross-Referenced.
Each of
the following terms is defined in the Section set forth opposite such
term:
27
|
Term
| |
Section
|
| | | |
|
1933
Act
| |
15.1
|
|
1934
Act
| |
15.1
|
|
Acceptance
Deadline
| |
11.1
|
|
Affiliate
| |
15.1
|
|
Agreement
| |
Preamble
|
|
Atmo
| |
5th
Recital Paragraph
|
|
Bayonne
Hospital
| |
13th Recital Paragraph
|
|
Bayonne LLC
| |
13th
Recital Paragraph
|
|
Business
| |
15.1
|
|
Business
Day
| |
15.1
|
|
Xxxxxxxxx
| |
7th
Recital Paragraph
|
|
Center
| |
15.1
|
|
CFWH
Center Portfolio
| |
15.1
|
|
CFWH
Group
| |
15.1
|
|
CFWH
Southampton Interests
| |
16h
Recital Paragraph
|
|
CFWH
| |
Preamble
|
|
CFWH’s
Knowledge
| |
15.1
|
|
Xxxxx
Xxxxx Xxxxxxxx
| |
15.1
|
|
Xxxxx
Xxxxx Contract
| |
8th
Recital Paragraph
|
|
Xxxxx
Xxxxx Hospital
| |
8th
Recital Paragraph
|
|
Closing
| |
3.1
|
|
Closing
Date
| |
3.1
|
|
Code
| |
15.1
|
|
Consent
| |
15.1
|
|
Consulting
Agreements
| |
10th
Recital Paragraph
|
|
Contract
| |
15.1
|
|
Disclosure
Schedules
| |
15.1
|
|
Disqualified
Person
| |
15.1
|
|
EKLLC
| |
5th
Recital Paragraph
|
|
Elise
| |
5th
Recital Paragraph
|
|
Environmental
Laws
| |
15.1
|
|
Environmental
Reports
| |
15.1
|
|
Equity
Securities
| |
15.1
|
|
Far
Rockaway Xxxxxxxx
| |
15.1
|
|
Far
Rockaway Contract
| |
9th
Recital Paragraph
|
|
Far
Rockaway Hospital
| |
9th
Recital Paragraph
|
|
Far
Rockaway LLC
| |
9th
Recital Paragraph
|
|
Far
Rockaway Note
| |
12th
Recital Paragraph
|
|
Xxxxxx
| |
7th
Recital Paragraph
|
|
Good
Faith Payment
| |
2.3
|
|
Government
| |
15.1
|
|
Xxxxxxxxx
Group
| |
5th
Recital Paragraph
|
|
Greenbergs
| |
5th
Recital Paragraph
|
|
Hazardous
Materials
| |
15.1
|
|
Holders
| |
2.5
|
|
IRS
| |
15.1
|
|
Jefferson
LLC
| |
10th
Recital Paragraph
|
|
Xxxxx
| |
5th
Recital Paragraph
|
|
Knowledge
of CFWH
| |
15.1
|
|
Law
| |
4.3
|
|
Lien
| |
15.1
|
28
|
Xxxxxx
Stock
|
2.2(b)
|
|
Xxxxxx
|
Preamble
|
|
Material
Adverse Effect
|
15.1
|
|
Material
Contracts
|
4.12
|
|
Maximum
Number
|
.2.5
|
|
Med-Air
2004 Modification
|
21st
Recital Paragraph
|
|
Med-Air
Bayonne Interests
|
14th
Recital Paragraph
|
|
Med-Air
Center Portfolio
|
15.1
|
|
Med-Air
Contracts
|
21st
Recital Paragraph
|
|
Med-Air
Group
|
15.1
|
|
Med-Air
Material Contracts
|
5.10
|
|
Med-Air
Membership Interests
|
15.1
|
|
Med-Air
Note
|
2.2(a)
|
|
Med-Air
Operating Agreements
|
15.1
|
|
Med-Air
Parties
|
Preamble
|
|
Med-Air
Raritan Bay Interests
|
18th
Recital Paragraph
|
|
Med-Air
Transaction
|
11.1
|
|
Med-Air
Transferred LLCs
|
15.1
|
|
Med-Air
Xxxxxx-Xxxxx Interests
|
20th
Recital Paragraph
|
|
Med-Air
|
Preamble
|
|
Med-Air’s
Knowledge
|
15.1
|
|
Membership
Interests
|
15.1
|
|
Membership
Transfer Agreement
|
15.1
|
|
Montefiore
Contract
|
6th
Recital Paragraph
|
|
New
Island Contract
|
5th
Recital Paragraph
|
|
New
Island Hospital
|
5th
Recital Paragraph
|
|
Notice
|
11.1
|
|
NY
Hyperbaric
|
2nd
Recital Paragraph
|
|
Offer
|
11.1
|
|
Operating
Agreements
|
15.1
|
|
Order
|
4.3
|
|
Organizational
Documents
|
4.3
|
|
Party
or Parties
|
Preamble
|
|
Person
|
15.1
|
|
Piggyback
Registration Request
|
2.5
|
|
Piggyback
Registration Rights
|
2.5
|
|
Piggyback
Registration
|
2.5
|
|
Prohibited
Enterprise
|
15.1
|
|
Purchase
Option
|
15.1
|
|
Raritan
Bay Hospital
|
17th
Recital Paragraph
|
|
Raritan
Bay LLC
|
17th
Recital Paragraph
|
|
Registrable
Securities
|
2.5
|
|
Related
Person
|
15.1
|
|
Richer
Stock
|
2.2(c)
|
|
Richer
|
Preamble
|
|
SEC
|
15.1
|
29
|
Six
Xxxxxxxx
|
15.1
|
|
Southampton
Hospital
|
15th
Recital Paragraph
|
|
Southampton
LLC
|
15th
Recital Paragraph
|
|
Southampton
Membership Interests
|
15.1
|
|
Southampton
Operating Agreements
|
15.1
|
|
Square
Xxxxxxxx
|
15.1
|
|
Square
|
7th
Recital Paragraph
|
|
Xxxxxxx
|
7th
Recital Paragraph
|
|
Subsidiary
|
15.1
|
|
Tax
Return
|
10.3
|
|
Taxes
|
15.1
|
|
Third
Party
|
11.1
|
|
Xxxxxx
Xxxxxxxxx Xxxxxxxx
|
15.1
|
|
Xxxxxx
Xxxxxxxxx Contract
|
10th
Recital Paragraph
|
|
Xxxxxx
Xxxxxxxxx Hospital
|
10th
Recital Paragraph
|
|
Transaction
Documents
|
15.1
|
|
Transaction
Taxes
|
10.1
|
|
Transaction
Taxes
|
10.1
|
|
Usage
Period
|
8.1
|
|
Westchester
Square Contract
|
7th
Recital Paragraph
|
|
Westchester
Square Hospital
|
7th
Recital Paragraph
|
|
Xxxxxx-Xxxxx
ASA
|
19th
Recital Paragraph
|
|
WVHC-Hospital
|
19th
Recital Paragraph
|
(Signatures
are on the following page)
30
IN
WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement to
be
executed by their respective officers thereunto duly authorized as of the date
first above written.
|
THE
CENTER FOR WOUND HEALING, INC.
|
| | |
|
By:
|
/s/
Xxxxxx
Xxxxxxx
|
|
Name:
Xxxxxx
Xxxxxxx
|
|
Title:
Chief
Executive Officer
|
| | |
|
MED-AIR
CONSULTANTS, INC.
|
| | |
|
By:
|
/s/
Xxxx
Xxxxxx
|
|
Name:
Xxxx
Xxxxxx
|
|
Title:
Chief
Executive Officer
|
| | |
|
XXXX
XXXXXX
|
| | |
|
/s/
Xxxx
Xxxxxx
|
| | |
|
XXXX
XXXXXX
|
| | |
|
/s/
Xxxx
Xxxxxx
|
31
PROMISSORY
NOTE
|
$U.S.
1,894,250.00
|
August
14, 2007
|
FOR
VALUE
RECEIVED, the undersigned, THE CENTER FOR WOUND HEALING, INC., a Nevada
corporation (“CFWH”) hereby promises to pay to the order of MED-AIR CONSULTANTS,
INC., a New York corporation (“Med-Air”), the sum of $1,894,250.00.
CFWH
promises to make the payments required under this promissory note, without
interest, in thirty-six (36) monthly installments in accordance with the
schedule attached hereto as Schedule 1, which schedule is part of this
promissory note. Each payment shall be recorded by Med-Air or the successor
noteholder, if the note has been properly assigned in accordance with the
assignment provisions herein (the “Holder”), and endorsed on Schedule 1. CFWH
shall not be entitled to prepay this promissory note within the first twelve
(12) months of the date hereof. If CFWH prepays this promissory note in full
at
any time after the one-year anniversary of the execution of this promissory
note, the amounts owed under this promissory note shall be payable at a discount
of twelve percent (12%) and without any prepayment penalty.
If
CFWH
fails to make a payment required under this promissory note when such payment
is
due in accordance with Schedule 1 (an “Unpaid Installment”), such nonpayment
shall constitute a default of CFWH’s obligations under this promissory note as
of the date CFWH was required to pay such Unpaid Installment (an “Event of
Default”). In the event that the Event of Default is not cured within fifteen
(15) business days following an Event of Default, all then unpaid installment
payments owing under this promissory note (the “Accelerated Amount”), plus the
amount of the Unpaid Installment, shall automatically become immediately due
and
payable. Any Unpaid Installment shall accrue simple interest at the rate of
12%
per annum. If CFWH pays the Unpaid Installment plus interest thereon on or
prior
to the fifteenth (15th) business day after an Event of Default, the Event(s)
of
Default upon which such automatic acceleration was predicated shall be deemed
to
be cured, and payment of all then unpaid installment payments shall not be
accelerated and such payments shall be due and owing as set forth on Schedule
1.
If
CFWH
fails to pay the Unpaid Installment on or prior to the fifteenth (15th) business
day after an Event of Default, such Unpaid Installment and the Accelerated
Amount shall accrue simple interest at the rate of 12% per annum. So long as
any
Event of Default has occurred and is continuing, CFWH shall not be entitled,
without the written consent of the Holder, to prepay this promissory note.
The
payments owing under this promissory note shall be made to the Holder in lawful
money of the United States of America (in immediately available funds) by
certified or bank check or by wire transfer to an account or accounts designated
by the Holder from time to time.
32
CFWH
hereby waives presentment, demand, protest and notice of any kind. No failure
to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
Neither
this promissory note nor any term hereof may be amended, waived, discharged
or
terminated other than by a written instrument referencing this promissory note
and signed by each of the parties to this promissory note.
This
promissory note may not be assigned to any person or entity without the written
consent of each of the parties to this promissory note; provided,
however,
that
Med-Air may, upon prior written notice to CFWH, assign this promissory note
to
any affiliate of Med-Air without the written consent of CFWH.
This
promissory note shall be construed in accordance with and governed by the laws
of the State of New York, without regard to principles of conflict of laws
that
would result in the application of the laws of another jurisdiction.
IN
WITNESS WHEREOF, CFWH has executed this promissory note as of the date first
above written.
|
THE
CENTER FOR WOUND HEALING, INC.
|
| | |
|
By:
|
|
| |
Name:
Xxxxxx X. Xxxxxxx
|
| |
Title:
Chief Executive Officer
|
33
SCHEDULE
1
|
Installment #
| |
Date
| |
Amount of
Payment
| |
Unpaid Balance
| |
Notation Made
By
| |
|
1
| | |
August
14, 2007
| |
$
|
113,562.50
| * |
$
|
1,780,562.50
| | | | |
|
2
| | |
September
14, 2007
| |
$
|
113,562.50
| |
$
|
1,667,125.00
| | | | |
|
3
| | |
October
14, 2007
| |
$
|
113,562.50
| |
$
|
1,553,562.50
| | | | |
|
4
| | |
November
14, 2007
| |
$
|
113,562.50
| |
$
|
1,440,000.00
| | | | |
|
5
| | |
December
14, 2007
| |
$
|
45,000.00
| |
$
|
1,395,000.00
| | | | |
|
6
| | |
January
14, 2008
| |
$
|
45,000.00
| |
$
|
1,350,000.00
| | | | |
|
7
| | |
February
14, 2008
| |
$
|
45,000.00
| |
$
|
1,305,000.00
| | | | |
|
8
| | |
March
14, 2008
| |
$
|
45,000.00
| |
$
|
1,260,000.00
| | | | |
|
9
| | |
April
14, 2008
| |
$
|
45,000.00
| |
$
|
1,215,000.00
| | | | |
|
10
| | |
May
14, 2008
| |
$
|
45,000.00
| |
$
|
1,170,000.00
| | | | |
|
11
| | |
June
14, 2008
| |
$
|
45,000.00
| |
$
|
1,125,000.00
| | | | |
|
12
| | |
July
14, 2008
| |
$
|
45,000.00
| |
$
|
1,080,000.00
| | | | |
|
13
| | |
August
14, 2008
| |
$
|
45,000.00
| |
$
|
1,035,000.00
| | | | |
|
14
| | |
September
14, 2008
| |
$
|
45,000.00
| |
$
|
990,000.00
| | | | |
|
15
| | |
October
14, 2008
| |
$
|
45,000.00
| |
$
|
945,000.00
| | | | |
|
16
| | |
November
14, 2008
| |
$
|
45,000.00
| |
$
|
900,000.00
| | | | |
|
17
| | |
December
14, 2008
| |
$
|
45,000.00
| |
$
|
855,000.00
| | | | |
|
18
| | |
January
14, 2009
| |
$
|
45,000.00
| |
$
|
810,000.00
| | | | |
|
19
| | |
February
14, 2009
| |
$
|
45,000.00
| |
$
|
765,000.00
| | | | |
|
20
| | |
March
14, 2009
| |
$
|
45,000.00
| |
$
|
720,000.00
| | | | |
|
21
| | |
April
14, 2009
| |
$
|
45,000.00
| |
$
|
675,000.00
| | | | |
|
22
| | |
May
14, 2009
| |
$
|
45,000.00
| |
$
|
630,000.00
| | | | |
* The
sum
of $25,000 has been prepaid by CFWH such that only $88,562.50 of this
$113,562.50 remains due and owing on August 14, 2007
34
|
Installment #
|
|
Date
|
|
Amount of
Payment
|
|
Unpaid Balance
|
|
Notation Made
By
| |
|
23
| | |
June
14, 2009
| |
$
|
45,000.00
| |
$
|
585,000.00
| | | | |
|
24
| | |
July
14, 2009
| |
$
|
45,000.00
| |
$
|
540,000.00
| | | | |
|
25
| | |
August
14, 2009
| |
$
|
45,000.00
| |
$
|
495,000.00
| | | | |
|
26
| | |
September
14, 2009
| |
$
|
45,000.00
| |
$
|
450,000.00
| | | | |
|
27
| | |
October
14, 2009
| |
$
|
45,000.00
| |
$
|
405,000.00
| | | | |
|
28
| | |
November
14, 2009
| |
$
|
45,000.00
| |
$
|
360,000.00
| | | | |
|
29
| | |
December
14, 2009
| |
$
|
45,000.00
| |
$
|
315,000.00
| | | | |
|
30
| | |
January
14, 2010
| |
$
|
45,000.00
| |
$
|
270,000.00
| | | | |
|
31
| | |
February
14, 2010
| |
$
|
45,000.00
| |
$
|
225,000.00
| | | | |
|
32
| | |
March
14, 2010
| |
$
|
45,000.00
| |
$
|
180,000.00
| | | | |
|
33
| | |
April
14, 2010
| |
$
|
45,000.00
| |
$
|
135,000.00
| | | | |
|
34
| | |
May
14, 2010
| |
$
|
45,000.00
| |
$
|
90,000.00
| | | | |
|
35
| | |
June
14, 2010
| |
$
|
45,000.00
| |
$
|
45,000.00
| | | | |
|
36
| | |
July
14, 2010
| |
$
|
45,000.00
| |
$
|
0.00
| | | | |
35
MEMBERSHIP
TRANSFER AGREEMENT
This
MEMBERSHIP TRANSFER AGREEMENT (this “Agreement”)
is made
as of August 14, 2007, by and between The Center For Wound Healing, Inc., a
Nevada corporation (“Assignor”),
and
Med-Air Consultants, Inc., a ______________ corporation (“Assignee”).
WITNESSETH:
WHEREAS,
Assignor
is a member in Southampton Hyperbaric, LLC (the “Company”);
and
WHEREAS,
Assignor
owns 49% of the membership interests in the Company (the “LLC
Interests”);
and
WHEREAS,
Assignor
and Assignee are parties to that certain Settlement Agreement dated as of August
9, 2007 (as may be amended, supplemented or otherwise modified from time to
time, the “Settlement Agreement”), pursuant to which Assignee has agreed to
acquire from Assignor, and Assignor has agreed to transfer and assign to
Assignee, Assignor’s right, title, and interest in and to the LLC Interests.
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Assignor and
Assignee agree as follows:
1. Pursuant
to the terms and conditions set forth in the Settlement Agreement, Assignor
hereby sells, assigns, transfers, and sets over to Assignee all of Assignor’ s
right, title and interest in and to the LLC Interests, together with all capital
accounts, earnings, contributions, rights, benefits and privileges belonging
or
pertaining thereto or held or enjoyed in connection therewith, TO HAVE AND
TO
HOLD the same unto Assignee, its successors and assigns from and after the
date
hereof.
2. Pursuant
to the terms and conditions of the Settlement Agreement, Assignee hereby
affirmatively and unconditionally assumes and agrees to perform all of the
liabilities and obligations of Assignor relating to the LLC
Interests.
3. Except
for the representations set forth in the Settlement Agreement, Assignor has
not
made and does not make any express or implied warranty or representation of
any
kind whatsoever with respect to the LLC Interests. Except as provided in the
Settlement Agreement, Assignee accepts the LLC Interests on an “AS
IS,
WHERE IS”
basis,
and without warranty or representation of any kind whatsoever.
4. This
Agreement is an instrument of transfer and conveyance contemplated by, and
is
executed and delivered under and pursuant to, the Settlement
Agreement.
36
5. The
provisions of this Agreement shall be binding upon Assignor, its successors
and
assigns, and all persons claiming by, under or through Assignor or any such
successor or assign, and shall inure to the benefit of and be enforceable by
Assignee and its successors and assigns.
6. This
Agreement shall be construed in accordance with and governed by the laws of
the
State of New York, without regard to principles of conflict of laws that would
result in the application of the laws of another jurisdiction.
7. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which, when taken together, shall constitute
one
and the same instrument.
[The
remainder of this page is intentionally left blank.]
37
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
|
ASSIGNOR:
|
| |
|
THE
CENTER FOR WOUND HEALING, INC.
|
| | |
|
By:
|
|
|
Name:
|
|
Title:
|
| | |
|
ASSIGNEE:
|
| |
|
MED-AIR
CONSULTANTS, INC.
|
| | |
|
By:
|
|
|
Name:
|
|
Title:
|
38
MEMBERSHIP
TRANSFER AGREEMENT
This
MEMBERSHIP TRANSFER AGREEMENT (this “Agreement”)
is made
as of August 14, 2007, by and between Xxxx Xxxxxx (“Xxxxxx”)
and
Xxxx Xxxxxx (“Richer”
and
together with Xxxxxx, “Assignors”),
and
The Center For Wound Healing, Inc., a Nevada corporation (“Assignee”).
WITNESSETH:
WHEREAS,
Assignors are members in Bayonne Hyperbaric, LLC (the “Company”);
and
WHEREAS,
Xxxxxx
and Richer each own 20% of the membership interests in the Company
(collectively, the “LLC
Interests”);
and
WHEREAS,
Assignors and Assignee are parties to that certain Settlement Agreement dated
as
of August 9, 2007 (as may be amended, supplemented or otherwise modified from
time to time, the “Settlement Agreement”), pursuant to which Assignee has agreed
to acquire from Assignors, and Assignors have agreed to transfer and assign
to
Assignee, Assignors’ right, title, and interest in and to the LLC Interests.
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Assignors and
Assignee agree as follows:
1. Pursuant
to the terms and conditions set forth in the Settlement Agreement, Assignors
hereby sell, assign, transfer, and set over to Assignee all of Assignors’ right,
title and interest in and to the LLC Interests, together with all capital
accounts, earnings, contributions, rights, benefits and privileges belonging
or
pertaining thereto or held or enjoyed in connection therewith, TO HAVE AND
TO
HOLD the same unto Assignee, its successors and assigns from and after the
date
hereof.
2. Pursuant
to the terms and conditions of the Settlement Agreement, Assignee hereby
affirmatively and unconditionally assumes and agrees to perform all of the
liabilities and obligations of Assignors relating to the LLC
Interests.
3. Except
for the representations set forth in the Settlement Agreement, Assignors have
not made and do not make any express or implied warranty or representation
of
any kind whatsoever with respect to the LLC Interests. Except as provided in
the
Settlement Agreement, Assignee accepts the LLC Interests on an “AS
IS,
WHERE IS”
basis,
and without warranty or representation of any kind whatsoever.
4. This
Agreement is an instrument of transfer and conveyance contemplated by, and
is
executed and delivered under and pursuant to, the Settlement
Agreement.
39
5. The
provisions of this Agreement shall be binding upon Assignors, their successors
and assigns, and all persons claiming by, under or through Assignors or any
such
successor or assign, and shall inure to the benefit of and be enforceable by
Assignee and its successors and assigns.
6. This
Agreement shall be construed in accordance with and governed by the laws of
the
State of Pennsylvania, without regard to principles of conflict of laws that
would result in the application of the laws of another
jurisdiction.
7. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which, when taken together, shall constitute
one
and the same instrument.
[The
remainder of this page is intentionally left blank.]
40
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
|
ASSIGNORS:
|
| |
|
XXXX
XXXXXX
|
| |
| |
|
XXXX
XXXXXX
|
| |
| |
|
ASSIGNEE
|
| |
|
THE
CENTER FOR WOUND HEALING, INC.
|
| |
| |
|
By
|
|
Name:
|
|
Title:
|
41
MEMBERSHIP
TRANSFER AGREEMENT
This
MEMBERSHIP TRANSFER AGREEMENT (this “Agreement”)
is made
as of August 14, 2007, by and between Xxxx Xxxxxx (“Xxxxxx”)
and
Xxxx Xxxxxx (“Richer”
and
together with Xxxxxx, “Assignors”),
and
The Center For Wound Healing, Inc., a Nevada corporation (“Assignee”).
WITNESSETH:
WHEREAS,
Assignors are members in Raritan Bay, LLC (the “Company”);
and
WHEREAS,
Xxxxxx
and Richer each own 25.5% of the membership interests in the Company
(collectively, the “LLC
Interests”);
and
WHEREAS,
Assignors and Assignee are parties to that certain Settlement Agreement dated
as
of August 9, 2007 (as may be amended, supplemented or otherwise modified from
time to time, the “Settlement Agreement”), pursuant to which Assignee has agreed
to acquire from Assignors, and Assignors have agreed to transfer and assign
to
Assignee, Assignors’ right, title, and interest in and to the LLC Interests.
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Assignors and
Assignee agree as follows:
1. Pursuant
to the terms and conditions set forth in the Settlement Agreement, Assignors
hereby sell, assign, transfer, and set over to Assignee all of Assignors’ right,
title and interest in and to the LLC Interests, together with all capital
accounts, earnings, contributions, rights, benefits and privileges belonging
or
pertaining thereto or held or enjoyed in connection therewith, TO HAVE AND
TO
HOLD the same unto Assignee, its successors and assigns from and after the
date
hereof.
2. Pursuant
to the terms and conditions of the Settlement Agreement, Assignee hereby
affirmatively and unconditionally assumes and agrees to perform all of the
liabilities and obligations of Assignors relating to the LLC
Interests.
3. Except
for the representations set forth in the Settlement Agreement, Assignors have
not made and do not make any express or implied warranty or representation
of
any kind whatsoever with respect to the LLC Interests. Except as provided in
the
Settlement Agreement, Assignee accepts the LLC Interests on an “AS
IS,
WHERE IS”
basis,
and without warranty or representation of any kind whatsoever.
4. This
Agreement is an instrument of transfer and conveyance contemplated by, and
is
executed and delivered under and pursuant to, the Settlement
Agreement.
42
5. The
provisions of this Agreement shall be binding upon Assignors, their successors
and assigns, and all persons claiming by, under or through Assignors or any
such
successor or assign, and shall inure to the benefit of and be enforceable by
Assignee and its successors and assigns.
6. This
Agreement shall be construed in accordance with and governed by the laws of
the
State of Pennsylvania, without regard to principles of conflict of laws that
would result in the application of the laws of another
jurisdiction.
7. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which, when taken together, shall constitute
one
and the same instrument.
[The
remainder of this page is intentionally left blank.]
43
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
|
ASSIGNORS:
|
| |
|
XXXX
XXXXXX
|
| |
|
|
| |
|
XXXX
XXXXXX
|
| |
|
|
| |
|
ASSIGNEE
|
| |
|
THE
CENTER FOR WOUND HEALING, INC.
|
| |
|
By:
|
|
|
Name:
|
|
Title:
|
44
DISCLOSURE
SCHEDULE 5.9
NONE
45
DISCLOSURE
SCHEDULE 5.6
SEE
ATTACHED (ONE PAGE)
46
HOSPITAL
LIST- AS PER SETTLEMENT AGREEMENT ENTERED INTO AUGUST 2007 IN COMPLIANCE WITH
PARAGRAPHS 5.6 & 5.8,
|
EAST
ORANGE GENERAL HOSPITAL
|
EAST
ORANGE, N.J.
|
|
SOUTHAMPTON
HOSPITAL
|
SOUTHAMPTON,
N.Y.
|
|
XXXXXX
HOSPITAL
|
CARBON
XXXX, N.Y.
|
|
NEW
ISLAND HOSPITAL
|
BETHPAGE,
N.Y.
|
|
ST.
XXXXXXX HOSPITAL
|
WILMINGTON,
DE.
|
|
MERCY
HOSPITAL
|
PHILADELPHIA,
PA.
|
|
CAMDEN
CLARK MEM HOSP
|
PARKERSBURG,
W.V.
|
|
ST.
MARY'S MEDICAL CENTER
|
HUNTINGTON,
W.V.
|
|
GENESYS
MEDICAL CENTER
|
GRAND
BLANC, MI.
|
|
XXXXXXX
HEALTH SYSTEM
|
WILLINGBORO/CAMDEN,
N.J.
|
|
XXXXX
HOSPITAL
|
CHICAGO,
IL.
|
|
ROSELAND
HOSPITAL
|
CHICAGO,
IL.
|
|
COLUMBUS
HOSPITAL
|
NEWARK,
N.J.
|
|
RARITAN
BAY MEDICAL CENTER
|
PERTH
AMBOY, N.J.
|
|
BAYONNE
MEDICAL CENTER
|
BAYONNE,
N.J.
|
|
WYOMING
VALLEY HEALTH SYSTEM
|
XXXXXX-XXXXX-
ET AL
|
|
ST.
JOHN'S HOSPITAL
|
FAR
ROCKAWAY, N.Y.
|
|
INTERFAITH
HOSPITAL
|
BROOKLYN,
N.Y.
|
|
NORTH
NAPLES HOSPITAL
|
NAPLES,
FL.
|
|
XXXXXX
XXXXXXXXX HOSPITAL
|
PHILADELPHIA,
PA.
|
|
XXXXX
XXXXX HOSPITAL
|
X.XXXXXX,
N.J.
|
|
WESTCHESTER
SQUARE HOSPITAL
|
BRONX,
N.Y.
|
|
MONTEFIORE
HOSPITAL
|
N.Y.
N.Y.
|
47
DISCLOSURE
SCHEDULE 5.8
SEE
ATTACHED (ONE PAGE)
48
HOSPITAL
LIST- AS PER SETTLEMENT AGREEMENT ENTERED INTO AUGUST 2007
IN
COMPLIANCE WITH PARAGRAPHS 5.6 & 5.8,
|
EAST
ORANGE GENERAL HOSPITAL
|
EAST
ORANGE, N.J.
|
|
SOUTHAMPTON
HOSPITAL
|
SOUTHAMPTON,
N.Y.
|
|
XXXXXX
HOSPITAL
|
CARBON
XXXX, N.Y.
|
|
NEW
ISLAND HOSPITAL
|
BETHPAGE,
N.Y.
|
|
ST.
XXXXXXX HOSPITAL
|
WILMINGTON,
DE.
|
|
MERCY
HOSPITAL
|
PHILADELPHIA,
PA.
|
|
CAMDEN
CLARK MEM HOSP
|
PARKERSBURG,
W.V.
|
|
ST.
MARY'S MEDICAL CENTER
|
HUNTINGTON,
W.V.
|
|
GENESYS
MEDICAL CENTER
|
GRAND
BLANC, MI.
|
|
XXXXXXX
HEALTH SYSTEM
|
WILLINGBORO/CAMDEN,
N.J.
|
|
XXXXX
HOSPITAL
|
CHICAGO,
IL.
|
|
ROSELAND
HOSPITAL
|
CHICAGO,
IL.
|
|
COLUMBUS
HOSPITAL
|
NEWARK,
N.J.
|
|
RARITAN
BAY MEDICAL CENTER
|
PERTH
AMBOY, N.J.
|
|
BAYONNE
MEDICAL CENTER
|
BAYONNE,
N.J.
|
|
WYOMING
VALLEY HEALTH SYSTEM
|
XXXXXX-XXXXX-
ET AL
|
|
ST.
JOHN'S HOSPITAL
|
FAR
ROCKAWAY, N.Y.
|
|
INTERFAITH
HOSPITAL
|
BROOKLYN,
N.Y.
|
|
NORTH
NAPLES HOSPITAL
|
NAPLES,
FL.
|
|
XXXXXX
XXXXXXXXX HOSPITAL
|
PHILADELPHIA,
PA.
|
|
XXXXX
XXXXX HOSPITAL
|
X.XXXXXX,
N.J.
|
|
WESTCHESTER
SQUARE HOSPITAL
|
BRONX,
N.Y.
|
|
MONTEFIORE
HOSPITAL
|
N.Y.
N.Y.
|
49
