PURCHASE AND SALE AGREEMENT
Exhibit
2.1
This
Purchase and Sale Agreement (hereinafter “Agreement”) is made and entered into
on August 29, 2008, by and between XXXXXX & XXXXXXX ISOTOPE PRODUCTS, INC.
(hereinafter “Buyer” or “EZIP”) and NORTH AMERICAN SCIENTIFIC, INC. (hereinafter
“Seller” or “NASM”).
RECITALS
A.
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Seller
has a business unit referred to herein as the “non-therapeutic radioactive
source business” (the “Business”), which manufactures and distributes
nuclear medicine calibration and reference sources, industrial sources
and
scientific reference and calibration sources.
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B.
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Seller
desires to sell, assign, transfer and/or deliver to Buyer, and Buyer
desires to purchase, the tangible and intangible assets of the Business,
as more fully set forth in this Agreement, free and clear of all
liens and
encumbrances.
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C.
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Concurrent
with the closing of this Agreement, Seller will transfer and/or deliver
certain assets to Buyer, as further set forth in this
Agreement.
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D.
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In
order to allow Buyer to continue operations of the Business immediately
after the Closing, Seller will provide support and assistance for
a period
of time necessary to allow Buyer to operate the Business on its
own.
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E.
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Seller
intends to discontinue it's operations in the non-therapeutic radioactive
source arena, and agrees that it will not compete with Buyer as more
fully
set forth in this Agreement.
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F.
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NOW,
THEREFORE, in consideration of the recitals, mutual covenants and
agreements, and subject to the terms and conditions contained herein,
the
parties agree as follows:
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1. |
PURCHASE
AND SALE OF BUSINESS
ASSETS
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1.1 Seller
hereby agrees to sell, transfer, assign, and/or deliver to Buyer, and Buyer
agrees to purchase and acquire from Seller on the terms and conditions set
forth
in this Agreement, all of Seller's right, title and interest in and to the
following assets (collectively, the “Business Assets”):
A.
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Inventory.
The inventory of the Business, including the actual quantities of
goods on
hand and other work in process (including its approximate stage of
completion) and finished goods (the “Inventory”), as shown on Schedule
A.
The Inventory also includes all consumable supplies necessary to
continue
operations, including but not limited to, shipping boxes, lead pigs,
labels and disposable lab
materials.
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B.
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Customer
Accounts and Data and Distributor Contracts.
All customer lists, customer files, customer contracts, customer
histories, customer records, and distributor contracts which relate
to the
Business (“Customer Accounts and Distributor Contracts”) as well as all
marketing material pertaining to the Business, such as trade booths
and
literature. The customers and distributors which are parties to contracts
with Seller which relate to the Business and of market materials
being
transferred is set forth on Schedule
B.
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C.
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Equipment.
Machinery, equipment, tools, tooling, furniture, computers, and all
other
tangible personal property owned and used in connection with the
Business,
except the Inventory, as shown and described in Schedule
C
(“Equipment”).
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D.
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Intellectual
Property.
All trade names, trademarks, service marks, sealed source device
registrations, and patents (whether registered or unregistered),
and the
registrations or applications for registration therefor; all logos,
symbols, brands, website software and domain addresses, copyrights
(whether registered or unregistered) and registrations therefor,
and all
renewals, renewal rights, reissues, modifications or extensions thereof;
and trade secrets, formulae, confidential information and research
and
development data that are owned by Seller and used in connection
with the
Business and set forth on Schedule
D
(collectively, the “Intellectual Property”).
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E.
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Intangible
Assets.
All know-how, formulas, specifications, techniques, process
specifications, work instructions, business plans, computer software
or
programs, documentation, quality manuals, or any other intangible
assets
of Seller used in operating the
Business.
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1.2 Seller
agrees that it will execute, acknowledge and deliver to Buyer at the Closing
such good and sufficient instruments of sale, conveyance, transfer and
assignment as shall be effective to vest in the Buyer all right, title and
interest in and to the Business Assets, free and clear of all liens,
encumbrances, security interests, equities, claims, charges and restrictions
whatsoever.
2. |
PURCHASE
PRICE FOR BUSINESS ASSETS
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2.1 Purchase
Price - Business Assets.
Subject
to terms of this Section, the purchase price for the Business Assets shall
be an
aggregate of up to $6,000,000 (the “Purchase Price”), payable as
follows:
A.
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Three
million dollars ($3,000,000) in cash at Closing (the “Closing
Payment”).
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B.
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A
secured promissory note (the “Note”) in the principal amount of two
million dollars ($2,000,000) (the “Deferred Payment”), in substantially
the form attached hereto as Exhibit
2,
delivered at Closing.
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C.
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Up
to one million dollars ($1,000,000) in cash, thirteen (13) months
after
Closing (the “Risk Share Payment”), payable as set forth in Section
2.2.
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2.2 Calculation
of Risk Share Payment.
The
Risk Share Payment referred to in Section 2.1(C) shall be calculated using
the
net total sales of NASM Products by EZIP to PineStar Technology, Inc.
(“PineStar”) in the first twelve (12) months after the Closing (“EZIP PineStar
Net Total Sales”) and a figure equal to the actual sales made by Seller to
PineStar between November 1, 2007 and April 30, 2008, multiplied by two (2)
(the
“PineStar Quota”). If the EZIP PineStar Net Total Sales remains at or exceeds
the PineStar Quota, the Risk Share Payment will be one million dollars
($1,000,000). Should the EZIP PineStar Net Total Sales be less than the Pine
Star Quota, the amount due to Seller will decrease proportionately. Thus, for
the purpose of example only, should the EZIP PineStar Net Total Sales amount
to
fifty percent (50%) of the PineStar Quota, then the amount owed to Seller would
be 50% of one million dollars, or five hundred thousand dollars ($500,000).
The
term NASM Products shall mean those products acquired by EZIP pursuant to this
Agreement, or like or similar products produced by EZIP.
A.
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In
the event that EZIP voluntarily ceases doing business with PineStar
during
the first 12 months after Closing, or in the event that EZIP sells
the
Business, in whole or in part, during that period, the Risk Share
Payment
will be one million dollars ($1,000,000) and shall be due immediately
upon
such events.
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B.
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EZIP
will use its best efforts to continue to operate the Business for
the
first twelve (12) months following the
Closing.
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C.
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EZIP
shall provide Seller with a quarterly report of the net sales report
by
EZIP to PineStar of the NASM Products and similar products and NASM
shall
have the right to audit the net sales at any time at its own cost
and
expense.
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2.3 Purchase
Price Adjustment.
The
Purchase Price will be adjusted to reflect changes in the materials inventory
balances. As of August 13, 2008, the materials inventory balance was Five
hundred and fifty-six thousand dollars ($556,000) (“Target Inventory Balance”).
The purchase price adjustment will be made from the Deferred Payment. In the
event that the actual inventory balance at Closing is more than [Fifty-five
thousand dollars ($55,000)] less than the Target Inventory Balance, then the
Deferred Payment will be decreased in the same amount as such deficit below
$501,000.
2.4 Allocation
of Purchase Price.
Buyer’s
third-party allocation of the Purchase Price among the Business Assets will
be
provided to Seller as soon as possible, but in no event later than November
30,
2008. Such allocation shall be adopted for all purposes related to the sale
of
the Business Assets hereunder, and Seller and Buyer agree not to file a tax
return or otherwise take a position for tax purposes, or otherwise, inconsistent
with such allocation.
3. |
ASSUMPTION
OF LIABILITIES
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3.1 Buyer's
Assumption of Liabilities. As further consideration for the purchase of the
Business Assets, and notwithstanding any other provision hereof to the contrary,
at the Closing, Buyer shall assume all Contract Liabilities which arise or
become due after the Closing, with respect to or arising under the Customer
Accounts and Distributor Contracts listed in Schedule
B.
3.2 Seller's
Retention of Certain Liabilities. Except for those specific Contract Liabilities
referred to in Paragraph 3.1 above, Buyer shall assume no liabilities of Seller
with respect to the Business, or related to the Business Assets acquired
hereunder including, without limitation, any chargebacks, discounts, credits
or
other allowances relating to or arising from the Accounts Receivable and the
Seller's operation of the Business prior to the Closing Date. Seller will retain
the liability for and expenses related to decommissioning its North Hollywood
facility and equipment not listed in Schedule
C,
and for
any sales tax which may be due as a result of the sale of Business Assets.
Seller will also retain the liability and obligations set forth in Section
10.1
and Schedule
E
of this
Agreement. Schedule
E
is a
list of liabilities retained by Seller.
For
purposes of this Agreement, “Contract Liabilities” shall mean any and all
losses, debts, liabilities, damages, obligations, claims, demands, actions,
judgments or settlements of any nature or kind, whether accrued or fixed,
absolute or contingent, matured or unmatured, or determined or determinable,
liquidated or unliquidated, arising under any contract, agreement, arrangement,
commitment or undertaking assigned to Buyer pursuant to this Agreement, and
including all reasonable costs and expenses (legal, accounting or otherwise)
related thereto.
4. |
REPRESENTATIONS
AND WARRANTIES
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4.1 Effect
of Representations and Warranties.
The
representations and warranties made by each party hereto and contained in this
Agreement as of the date first written above (unless otherwise specified),
are,
to the best knowledge of each party to be true and complete as of the Closing
Date.
4.2 Representations
and Warranties of Seller.
Seller
hereby represents and warrants to Buyer that, except as set forth in Seller’s
Disclosure Schedules delivered to Buyer concurrently herewith:
A.
Authority
and Enforceability.
The
execution, delivery and performance by Seller of this Agreement and each
and all
other agreements, instruments and documents to be executed and delivered
by
Seller (collectively, with the exception of this Agreement, the “Ancillary
Seller Documents”): (a) are within the power, capacity and authority of Seller;
(b) have been duly and validly authorized by Seller; and (c) are collectively
sufficient to transfer all of Seller's right, title and interest in the
Business
Assets to Buyer. Seller has taken, or caused to have been taken, all necessary
corporate action for authorization to execute, deliver and perform all
obligations under this Agreement and the Ancillary Seller Documents. There
is no
other corporate proceeding on the part of Seller that is necessary to authorize
the execution, performance or delivery by the Seller under this Agreement
and
the Ancillary Seller Documents. Seller will duly execute and deliver this
Agreement and each of the Ancillary Seller Documents to which it is a party.
This Agreement and the Ancillary Seller Documents when executed and delivered
by
Seller shall constitute, the legal, valid and binding obligations of Seller
enforceable against Seller in accordance with the terms of each such instrument,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, and other similar laws affecting the enforcement
of
creditors' rights and by principles of equity.
B. No
Conflicts.
The
execution, delivery and performance by Seller of this Agreement and the
Ancillary Seller Documents and the consummation by Seller of the transactions
contemplated hereby or thereby, will not result in or cause the following:
(a) a
default or an event that with notice or lapse of time, or both, would be a
breach or violation of (i) any judgment, order, writ or decree applicable to
Seller or the Business Assets, (ii) any applicable law, or (iii) any contract
or
agreement to which Seller is a party or by which Seller may be bound or to
which
the Business Assets are subject; or (b) the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon the Buyer or the Business
Assets, except in the case of clause (a) as would not be reasonably expected
to
have a material adverse effect on the business on
the
business, condition (financial or otherwise), properties, assets (including
intangible assets), liabilities (including contingent liabilities), prospects,
or results of operations of the Business Assets (a “Material Adverse
Effect”).
C. No
Consents.
No
consent, authorization, or approval of, or filing or registration with or
exemption by any governmental body or authority or any other person is required
to be obtained or made by Seller in connection with the execution, delivery
and
performance by Seller of this Agreement or any Ancillary Seller Documents to
which it is a party, or the consummation by Seller of the transactions
contemplated hereby or thereby.
D. Title
to Business Assets.
Seller
is the owner, beneficially and of record, of the Business Assets free and clear
of all liens, encumbrances, pledges, security interests, claims, and charges
of
any kind (collectively “Liens”). Seller has full power of disposition over, and
has the full right to sell, assign, convey, transfer or deliver the Business
Assets to Buyer without the consent or approval of any other person. Any
security interests in the Business Assets, including, but not limited to the
security interests of Silicon Valley Bank and Agility Capital, LLC have been
extinguished or will be extinguished by the Closing Date.
E. Inventory.
Schedule
A
is a
complete and correct list of the Inventory of the Business, including the actual
quantities of goods on hand and other work in process (including its approximate
stage of completion). The Inventory consists of items that are useable and
saleable in the ordinary course of the Business' operations. No items included
in the Inventory have been pledged as collateral, are subject to a security
interest or are held on consignment from others.
F. Customer
Accounts.
Schedule
B
contains
a complete and correct list, in alphabetic order, of all of the past and present
customers and accounts of the Business which have placed orders with the
Business during the thirty-six (36) months preceding the Closing Date, including
the current address and telephone number of each such customer or account.
G. Equipment.
Schedule
C
is a
complete and accurate list describing all Equipment used in connection with
the
Business; except Inventory. The Equipment listed in Schedule
C
constitutes all such tangible personal property necessary for the conduct of
the
Business as presently conducted. Except as otherwise provided or disclosed
in
Schedule
C,
none of
the Equipment is held under any lease, security agreement or conditional sales
contract, or is located other than at the Seller's premises.
H. Good
Working Order.
All of
the Equipment listed on Schedule
C
is in
good operating condition and repair, ordinary wear and tear excepted, and will
remain in such condition as of the Closing Date.
I. Intellectual
Property.
Schedule
D
is a
complete and correct list of all Intellectual Property used solely in connection
with the Business.
(i) All
state
and Federal registrations, renewals, and other filings relating to any of the
Intellectual Property that are or were material to the Business have been filed
in all appropriate state and Federal offices.
(ii) Seller
has not granted and will not grant to any other person or entity any rights
to
or licenses to use the Intellectual Property.
(iii) The
Intellectual Property which is not in the public domain is confidential and
has
not been disclosed to any other person or entity, except for those persons
or
entities subject to obligations to protect the confidentiality of such
Intellectual Property. Seller has or will enter into agreements, including
certain provisions substantially in the form set forth on Exhibit
1
attached
hereto, with its employees which prevent such employees from disclosing or
using
for personal gain any proprietary information being purchased by
Buyer.
(iv) Seller
owns and holds adequate rights to use all of the Intellectual Property and,
to
the knowledge of Seller, that use does not, and will not, conflict with,
infringe on, or otherwise violate any rights in and to intellectual property
belonging to any other person.
(v) To
the
knowledge of Seller, other than is set forth in Schedule
E,
Seller
has not infringed and is not now infringing on any trade name, trademark,
service xxxx, patent or other rights in and to intellectual property belonging
to any other person.
(vi) To
the
knowledge of Seller, there is no infringement or alleged infringement by others
of the Intellectual Property.
(vii) Seller
has taken reasonable efforts to maintain the secrecy of the trade secrets being
transferred pursuant to this Agreement.
J. Permits,
Licenses, Etc.
Schedule
D
contains
a complete and correct list of all permits, licenses, registrations,
authorizations, franchises or other approvals from any privately held or owned
entity or from any governmental or regulatory body or authority owned by Seller
and used in connection with the Business (the “Permits”). The Seller has
obtained all Permits required for the operation of the Business and each such
Permit is in full force and, to the knowledge of Seller, there are no conditions
or facts which would cause the termination of such permits or the right to
operate the Business. All of the Permits are valid and in full force, and,
to
the knowledge of Seller, no suspension, cancellation, or non-renewal of any
of
them is pending or threatened, nor does any basis for such suspension,
cancellation, or non-renewal exist including, without limitation, any failure
to
pay any fees due. A true and complete copy of each Permit set forth on
Schedule
D
has been
previously made available to Buyer.
K. Distributor's
Contracts.
Schedule
B
contains
a complete and correct list of all Distribution Contracts being transferred
by
this Agreement. Each of the Distribution Contracts is valid and in full force,
constitutes the binding legal obligation of the parties thereto and there does
not exist any material default or breach or event that with notice, would
constitute a material default or breach under any of the Distribution Contracts
by the Seller or, to the knowledge of Seller, any other party thereto. The
Seller has not received notice, either oral or written, that any party to the
Distribution Contracts intends to cancel or terminate any such agreement. A
true
and complete copy of each Contract set forth on Schedule
B
has been
previously made available to Buyer.
L. Financial
Records.
The
books of account and any and all other financial records relating to the
operation of the Business shown to Buyer accurately set forth, in all material
respects, the revenues, expenditures, assets and liabilities of the Business
and
have been and are maintained and prepared in accordance with generally accepted
accounting principles, consistently applied.
M. Compliance
with Laws.
To the
knowledge of Seller, Seller has complied in all material respects with all
United States federal, state, regional and local statutes, laws, ordinances
and
regulations, including environmental protection laws and regulations applicable
to the Business. Seller has not received notice of or been cited for any
violation of any such law or regulation.
N. Litigation.
There
are no claims, actions, suits, administrative, arbitration or other proceedings
commenced, pending or, to Seller's knowledge, threatened which will or might
in
any way affect, or which could have a Material Adverse Effect, or which relate
to the obtaining of the rights and benefits by Buyer hereunder. None of the
transactions contemplated by this Agreement or the Ancillary Seller Documents
is
restrained or enjoined (either temporarily, preliminarily or permanently),
and
no material adverse conditions have been imposed thereon by any governmental
or
regulatory authority or arbitrator. None of the Business Assets is subject
to
any order, writ, judgment, award, injunction or decree of any governmental
or
regulatory authority or arbitrator.
O. Interest
In Customers, Suppliers, Competitors.
Neither
Seller nor, to Seller’s knowledge, its officers, directors and shareholders,
owns, directly or indirectly, any interest in (excepting not more than 10
percent stockholdings for investment purposes in securities of publicly held
and
traded companies), or is an officer, director, employee (other than of the
Seller prior to the Closing) or consultant of, or otherwise receives
remuneration from, any person or entity which is, or is engaged in a business
as, a competitor, customer or supplier of the Business, or in any other person
with whom the Business is doing business.
P. Full
Disclosure.
No
representation or warranty contained in this Agreement or in any Ancillary
Seller Document furnished or to be furnished by the Seller, or
on its
behalf, pursuant hereto contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact the omission
of
which would be misleading.
Q. Insurance.
Seller
will continue to maintain, in full force and effect, all currently maintained
policies of fire, liability, product liability, and other forms of insurance
with respect to the Business presently being sold up through the Closing
Date.
R. Absence
of Changes or Events.
Since
October 31, 2007, Seller has not experienced any material adverse change in
the
Business Assets, or sold, transferred or otherwise disposed of or agreed to
sell, transfer or otherwise dispose of any of the Business Assets properties
or
rights herein described (other than for sales of inventory in the ordinary
course of business and consistent with past practice of Seller).
4.3 Representations
and Warranties of Buyer.
Buyer
hereby represents and warrants to Seller that:
A.
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Authority
and Enforceability.
The execution, delivery and performance by Buyer of this Agreement
and all
other agreements, instruments and documents to be executed and delivered
by Buyer in connection herewith are within the power, capacity and
authority of Buyer; and have been duly and validly authorized by
Buyer.
Buyer has taken, or caused to have been taken, all necessary corporate
action for authorization to execute, deliver and perform all obligations
under this Agreement and the Ancillary Buyer Documents. Buyer has
duly
executed and delivered this Agreement and will duly execute each
of the
Ancillary Buyer Documents to which it is a party. This Agreement
and the
Ancillary Buyer Documents when executed and delivered by Buyer shall
constitute the legal, valid and binding obligations of Buyer enforceable
against Buyer in accordance with the terms of each such instrument,
except
to the extent that enforceability may be limited by applicable bankruptcy,
insolvency, and other similar laws affecting the enforcement of creditors'
rights and by principles of equity.
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B.
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No
Conflicts.
The execution, delivery and performance by Buyer of this Agreement
and the
Ancillary Documents and the consummation by Buyer of the transactions
contemplated hereby or thereby, will not result in or constitute
any of
the following: (a) a breach of any provision of Buyer's Articles
of
Incorporation or Bylaws, if any; or (b) a default or an event that
with
notice or lapse of time, or both, would be a breach or violation
of (or
give rise to any right of termination, cancellation, or acceleration
under) the provisions of (i) any judgment, order, writ or decree
applicable to Buyer, (ii) any applicable law, or (iii) any contract
or
agreement to which Buyer is a party to or may be
bound.
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C.
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No
Consents.
No consent, authorization, or approval of, or filing or registration
with
or exemption by any governmental body or authority or any other person
is
required to be obtained or made by Buyer in connection with the execution,
delivery and performance by Buyer of this Agreement or any Ancillary
Buyer
Document, or the consummation by Buyer of the transactions contemplated
hereby or thereby.
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D.
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Organization,
Standing and Qualification of Buyer.
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of California and has all requisite
corporate power and authority to acquire and own the Business
Assets.
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E.
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Litigation.
There are no claims, actions, suits, administrative, arbitration
or other
proceedings commenced, pending or, to Buyer’s knowledge, threatened which
will or might in any way affect, or which could have a material and
adverse effect on the Buyer’s ability to consummate the transactions set
forth in this Agreement.
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F.
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Financial
Statements.
Buyer has provided to Seller true and complete copies of reviewed
financial statements of Buyer as of December 31, 2007 (the “Financial
Statements”). The Financial Statements fairly present in all material
respects the financial condition of Buyer as at the respective dates
of
and for the periods referred to in the Financial Statements, all
in
accordance with generally accepted accounting principles for financial
reporting in the United States (“GAAP”) applied on a consistent basis,
except as noted therein, and, in the case of unaudited financial
statements, for the absence of footnotes and other presentation items
and
for normal year-end adjustments. The Financial Statements have been
prepared from the books and records of
Buyer.
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G.
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Absence
of Undisclosed Liabilities.
The Buyer has no obligations or liabilities (whether accrued, absolute,
contingent, unliquidated, or otherwise, whether or not known, whether
due
or to become due, and regardless of when asserted), except liabilities
reflected on the balance sheet contained in the Financial
Statements.
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4.4 Survival
of Representations and Warranties.
All
representations, warranties, conditions, covenants and agreements contained
in
this Agreement or in any Ancillary Documents shall survive the execution and
delivery of this Agreement and the Closing hereof for the period set forth
in
Section 10.5.
5. |
COVENANTS
OF SELLER
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5.1 Continuing
Operations.
Except
as otherwise required by or agreed in this Agreement, from the date hereof
until
the Closing, Seller agrees to:
A.
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Continue
to operate the Business in the same manner it has been operated by
Seller
in the past, and continue all usual Business activities intended
to
preserve all existing relationships of the Business with customers,
suppliers, contractors and others having a business relationship
with
Seller;
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B.
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Maintain
all Business Assets, other than inventory sold in the ordinary course
of
business, in a manner that at the Closing, they will be in substantially
the same condition and repair as on the date of the execution of
this
Agreement, subject only to ordinary wear and
tear;
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C.
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Maintain
in full force and effect all insurance currently maintained on the
Business Assets which are the subject of this Agreement;
and,
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D.
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Maintain
the books, accounts and records related to the Business Assets and
operation of the Business in the usual regular and ordinary course
of
business, consistent with past
practice.
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5.2 Access.
Seller
will give Buyer and its representatives and agents, upon reasonable notice,
and
as often as Buyer may reasonably request, full and complete access to the
Business Assets and all books, agreements, papers and records of Seller
pertaining to the Business Assets for the purposes of Buyer's due diligence
investigation of the transactions contemplated by this Agreement; and Seller
will cause its officers, employees and other representatives to cooperate fully
with Buyer's officers, employees and other representatives in the course of
such
investigation. Notwithstanding any of the foregoing, the parties hereby
acknowledge and agree that satisfactory compliance of Buyer’s due diligence
investigation is not a condition of the Closing.
5.3 Post
Closing Assistance.
After
the Closing, in order to continue operation of the Business while Buyer
transfers the operations to its facilities, Seller will provide Buyer support
sufficient to successfully operate and transfer the Business in a timely manner.
Such support could include, but is not limited to support in the areas of
Customer Service/Order Entry, Information Technology, Health Physics
/Radiological Safety Operations, Quality/Regulatory, Remaining production,
access to Seller’s North Hollywood facility, and Finance. During such transition
period Buyer may utilize the Seller’s North Hollywood facility and Buyer shall
pay Seller for the use of such facility at the rate of $20,000 per month. In
addition, for a period of one year, Seller will forward all sales inquiries
pertaining to Business Products to Buyer, and will hot-link it's website with
Buyer's website. Such support will be provided until the operations can be
transferred to and incorporated into Buyer’s operations. Buyer will compensate
Seller for such support at the rate of $2,000.00 per month. Notwithstanding
the
foregoing, Seller shall have no obligation whatsoever for the payment of
compensation to Buyer’s employees for services rendered after the Closing,
without regard to such employees’ previous employment with Seller.
5.4 Enforcement
of Employee Agreements.
After
the Closing, Seller shall use commercially reasonable efforts, including filing
lawsuits if necessary, to enforce all written agreements by and between the
Seller and any of Seller’s employees or former employees regarding the
non-compete, non-disclosure, non-interference or use of intellectual property
of
the Seller.
6. |
CONDITIONS
OF BUYER'S OBLIGATION TO
CLOSE
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The
obligations of Buyer to purchase the Business Assets under this Agreement are
contingent upon the satisfaction, performance or waiver on or before the Closing
of all the conditions set forth in this Section 6. Buyer may waive any or all
of
these conditions in whole or in part without prior notice.
6.1 Accuracy
of Representations And Warranties.
All of
the representations and warranties of Seller contained in this Agreement or
in
any Ancillary Seller Document shall be true and correct on and as of the Closing
Date as though made at that time, except where such failure to be true and
correct shall not result in a material adverse effect on the Business, the
Business Assets, or the Seller’s ability to consummate the transactions set
forth in this Agreement.
6.2 Performance
of Agreements.
All of
the obligations and agreements of Seller to be performed or satisfied prior
to
the Closing shall have been performed, satisfied or waived prior to the Closing
Date.
6.3 No
Material Adverse Change.
During
the period from July 1, 2008 to the Closing Date, there shall not have been
any
material adverse change in the financial condition or the assets of the
Business, and the Seller shall not have sustained any material loss or damage
to
the Business Assets whether or not covered by insurance.
6.4 Absence
of Litigation.
No
decree, temporary restraining order, preliminary or permanent injunction or
other order issued by any governmental entity of competent jurisdiction
preventing, restraining or enjoining the consummation of the transactions
contemplated by this Agreement shall be in effect.
6.5 Governmental
Notifications, Permits and Approvals.
All
consents, permits, licenses and approvals from any governmental or regulatory
authority required to be obtained by the Seller or Buyer prior to the Closing
for the lawful consummation of the Closing, the transactions contemplated by
this Agreement and the continued use and operation of the Business Assets by
Buyer after the Closing shall have been obtained and delivered to Buyer, and
all
notifications or disclosures required by any applicable law to be made to any
governmental or regulatory authority, employee or other persons or Buyer shall
have been provided or made.
7. |
CONDITIONS
OF SELLER'S OBLIGATION TO
CLOSE
|
The
obligations of Seller to sell the Business Assets under this Agreement are
contingent upon the satisfaction, performance or waiver on or before the Closing
of all the conditions set forth in this Section 7. Seller may waive any or
all
of these conditions in whole or in part without prior notice.
7.1 Accuracy
of Representations And Warranties.
All of
the representations and warranties of Buyer and Seller contained in this
Agreement or in any Ancillary Buyer Document shall be true and correct on and
as
of the Closing Date as though made at that time, except where such failure
to be
true and correct shall not result in a material adverse effect on the Buyer’s
ability to consummate the transactions set forth in this Agreement.
7.2 Performance
of Agreements.
All of
the obligations and agreements of Buyer and Seller to be performed or satisfied
prior to the Closing shall have been performed, satisfied or waived prior to
the
Closing Date.
8. |
THE
CLOSING
|
8.1 Time
and Place.
The
sale, transfer, assignment, conveyance and delivery of the Business Assets
by
Seller to Buyer (the “Closing”) shall take place at Buyer's address in Valencia,
California on September 5, 2008, or at such other time and place as the parties
may mutually agree (the “Closing Date”).
8.2 Deliveries
of Seller.
At the
Closing, Seller shall deliver to Buyer the following:
A.
|
Xxxx
of Sale.
A
Xxxx of Sale transferring to Buyer all of Seller’s right, title and
interest in and to the Inventory and the
Equipment.
|
B.
|
Possession.
Possession of such of the Business Assets as is capable of delivery
to,
and possession by, Buyer.
|
C.
|
Assignments.
An assignment or assignments, properly executed by Seller, transferring
to
Buyer all right, title and interest of Seller in and to the Customer
Accounts, Intellectual Property, Permits and Contracts, in a form
acceptable to Buyer and its
counsel.
|
8.3 Deliveries
of Buyer.
At the
Closing, the Buyer shall deliver to Seller the following
A.
|
Cash
Payment.
A
wire transfer to an account designated by Seller in the amount of
$3,000,000.00.
|
B.
|
Promissory
Note.
The manually executed Note in the amount of the Deferred
Payment.
|
9. |
NON-COMPETITION
|
9.1 Non-Competition.
For the
duration of this Agreement and for a five year period of time following the
Closing Date, Seller will not:
A.
|
Engage,
directly or indirectly, in any business substantially similar to
the
Business (such business to be deemed a “Competitor”) so long as Buyer is
engaged in the Business;
|
B.
|
Become
interested, directly or indirectly, in any such Competitor as a joint
venturer, stockholder, member, investor or any other similar relationship
or capacity;
|
The
parties hereto agree that the duration and scope of the non-competition
provision set forth above is reasonable. If, in any judicial proceeding, a
court
shall determine that the duration or geographic scope, or both, are unreasonable
and that such provision is to that extent unenforceable, then the parties agree
that the non-competition provision shall remain in full force and effect for
the
greatest time period and in the greatest area that would render it
enforceable.
9.2 Non-Disclosure.
After
the Closing, neither party, its respective officers, employees or directors
will
divulge, communicate, use to the detriment of the other party for the benefit
of
any other person or persons, or misuse in any way any confidential information
or trade secrets of the other party and, in the case of Seller, the Business,
including (without limitation) products, services, secret processes, know-how,
customer lists, or other technical data that relate to, arise from or are
connected the Business Assets being sold and transferred to Buyer.
9.3 Non-Interference.
From
the Closing and for the duration of this Agreement and for a five year period
of
time following the Closing Date, Seller shall not directly or indirectly: (i)
solicit business for a Competitor from the Customer Accounts identified on
Schedule
B;
and/or
(ii) induce any Customer Accounts not to undertake, or to curtail or cancel
business related to the Business with the Buyer, any affiliate of the Buyer
or
any of their respective successors or assigns.
9.4 Use
of
Intellectual Property.
After
the Closing Date, except on behalf of the Buyer, neither Seller, nor Seller's
officers, employees or directors shall use or employ in any manner directly
or
indirectly any of the Intellectual Property being sold and transferred to Buyer
hereunder and shall not directly or indirectly, manufacture, market or sell
any
products bearing any such marks, dress or any other source identifiers including
trademarks, service marks, trade names or trade dress which are in any way
confusingly similar to any of the foregoing.
10. |
INDEMNITY
|
10.1 Indemnification
of Buyer.
Seller
shall protect, defend, indemnify and hold Buyer and any of its successors,
assigns, directors, officers, shareholders, employees, attorneys or agents
or
their respective heirs, successors, personal representatives or assigns or
any
affiliate of Buyer (each a “Buyer Indemnitee”), harmless from and against any
Liability resulting directly or indirectly, entirely or in part, from the
following:
A. Any
breach of or inaccuracy in any representation or warranty made by Seller in
this
Agreement (including, without limitation, the representations and warranties
set
forth in Section 4.2 above);
B. Any
breach or default, or failure to perform, by Seller of any covenants or
agreements of Seller contained herein or in any Ancillary Seller Document;
C. Any
failure by Seller to deliver good title to the Business Assets to Buyer, free
and clear of all Liens;
D. Any
claim
pertaining to the Business or its products which arises from products
manufactured by Seller, or from acts or services performed by Seller prior
to
the Closing;
E. Any
liability retained by Seller, pursuant to Section 3 of this Agreement;
F.
Any
Liability arising from the matter described in Schedule E of Seller’s Disclosure
Schedules;
G. Any
use
of the Intellectual Property that is the subject of this Agreement by any person
or entity not authorized or licensed by Buyer where such information was
obtained from Seller; and
H. Any
violation of the non-disclosure, non-interference, non-compete and use of
intellectual property provisions of Section 9 and Exhibit 1 of this
Agreement.
10.2 Indemnification
of Seller.
Buyer
shall protect, defend, indemnify and hold Seller and any of its successors,
assigns, directors, officers, shareholders, employees, attorneys, agents, or
their respective heirs, successors, personal representatives or assigns or
any
affiliate of Seller (each a “Seller Indemnitee”) harmless from and against any
Liability resulting directly or indirectly, entirely or in part, from the
following:
A. Any
breach of or inaccuracy in any representation or warranty made by Buyer in
this
Agreement or in any Ancillary Buyer Document;
B. Any
breach or default, or failure to perform, by Buyer of any covenants or
agreements of Buyer contained herein or in any Ancillary Buyer Document; and,
C. Buyer's
ownership, operation, or sale of the Business Assets after the Closing.
10.3 Claims
Procedure.
If a
party hereto seeks indemnification under this Section 10, such party (the
“Indemnified Party”) shall promptly give written notice to the other party (the
“Indemnifying Party”) after receiving written notice of any action, lawsuit,
proceeding, investigation, or other claim against it (if by a third party)
or
discovering the Liability, obligation, or facts giving rise to such claim for
indemnification, describing the claim, the amount thereof (if known and
quantifiable), and the basis thereof; provided that the failure to so notify
the
Indemnifying Party shall not relieve the Indemnifying Party of its obligations
hereunder except to the extent such failure shall have prejudiced the
Indemnifying Party. In that regard, if any action, lawsuit, proceeding,
investigation or other claim shall be brought or asserted by any third party
which, if adversely determined, would entitle the Indemnified Party to indemnity
pursuant to this Section 10, the Indemnified Party shall promptly notify the
Indemnifying Party of the same in writing, specifying in detail the basis of
such claim and the facts pertaining thereto and the Indemnifying Party shall
be
entitled to participate in the defense of such action, lawsuit, proceeding,
investigation, or other claim giving rise to the Indemnified Party’s claim for
indemnification at the Indemnifying Party’s expense and option (subject to the
limitations set forth below) shall be entitled to control and appoint lead
counsel of such defense with reputable counsel reasonably acceptable to the
Indemnified Party; provided that, as a condition precedent to the Indemnifying
Party’s right to assume control of such defense, it must first agree in writing
to be fully responsible for all Liability relating to such claim and to provide
full indemnification to the Indemnified Party for all Liability relating to
such
claim; and provided further that the Indemnifying Party shall not have the
right
to assume control of such defense and shall pay the fees and expenses of counsel
retained by the Indemnified Party, if the claim which the Indemnifying Party
seeks to assume control (each, an “Indemnified Party Controlled Proceeding”) (a)
involves a claim to which the Indemnified Party reasonably believes could be
detrimental to or injure the Indemnified Party’s reputation, customer or
supplier relations or future business prospects, (b) seeks non-monetary relied
(except where non-monetary relief is merely incidental to a primary claim or
claims of monetary damages), (c) involves criminal allegations, (d) is one
in
which the Indemnifying Party is also a party and joint representation would
be
inappropriate or there may be legal defenses available to the Indemnifying
Party, or (e) involves a claim which, upon petition by the Indemnified Party,
the appropriate court rules that the Indemnifying Party failed or is failing
to
vigorously prosecute or defend.
If
the
Indemnifying Party is permitted to assume and control the defense and elects
to
do so, the Indemnified Party shall have the right to employ counsel separate
from counsel employed by the Indemnifying Party in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
employed by the Indemnified Party shall be at the expense of the Indemnified
Party unless the employment thereof has been specifically authorized by the
Indemnifying Party in writing.
If
the
Indemnifying Party shall control the defense of any such claim, the Indemnifying
Party shall obtain the prior written consent of the Indemnified Party (which
shall not be unreasonably withheld) before entering into any settlement of
a
claim or ceasing to defend such claim unless (a) there is no finding or
admission of any violation of law or any violation of the rights of any person
or entity and no effect on any other claims that may be made against the
Indemnified Party and (b) the sole relief provided is monetary damages that
are
paid in full by the Indemnifying Party.
10.4 Limitations
on Indemnification.
A. Notwithstanding
anything contained herein to the contrary, the maximum liability of Seller
or
Buyer for indemnification under this Section 10 is two million five hundred
thousand dollars ($2,500,000).]
B. The
provisions for indemnity under Sections 10.1 and 10.2 shall be effective only
when the aggregate amount of all Liabilities for which indemnification is sought
under Sections 10.1 or 10.2, as the case may be, exceeds fifty thousand dollars
($50,000), provided,
however, that in the event the Liabilities exceed such amount, indemnification
shall be made with respect to all Liabilities.
C. No
Indemnifying Party shall be liable to any Indemnified Party with respect to
claims referred to in Sections 10.1 or 10.2 if such Indemnifying Party does
not
receive written notice of such claims within the Limitation Date.
10.5 Survival
of Representations and Warranties; Indemnity Obligations.
The
representations and warranties of the parties hereto, and all indemnity
obligations set forth in this Section 10, contained in this Agreement shall
survive the termination of this Agreement or the Closing for a period of three
(3) years following the date of the Closing Date (the “Limitation Date”);
provided, however, that the representations and warranties set forth in Sections
4.2A, 4.2B, 4.2D, 4.3A, 4.3B and 4.3D shall survive indefinitely; provided,
further, that such obligations to indemnify shall not terminate with respect
to
any matter as to which the Indemnified Party shall have, before the expiration
of the applicable period, previously made a claim by delivering a notice of
such
claim to the indemnifying party.
11. |
DISPUTE
RESOLUTION
|
11.1 Governing
Law.
This
Agreement shall be construed and interpreted in accordance with the laws of
the
State of California, without regard to any conflicts of laws
principles.
11.2 Forum
Selection.
The
parties consent and agree that any dispute or claim arising out of or related
to
this Agreement, or the breach or enforcement thereof, which results in a legal
action or other proceeding, shall be initiated and prosecuted in any state
or
federal court located in the State of California. The parties waive any right
to
a change in venue and any and all objections to the jurisdiction of the
California courts.
11.3 Mediation.
Prior
to litigating any dispute which arises under this Agreement, the parties agree
to first submit the dispute to a mediator mutually agreeable to both parties.
The parties agree that no formal discovery (depositions and written
interrogatories) will be ordered by the mediator unless both parties agree
to
the formal discovery, except that the mediator can order each party to produce
non-privileged documents to the other party. The costs of the mediation will
be
divided equally between the Parties.
11.4 Liability
Defined.
For the
purposes of this Agreement, “Liability” shall mean, without limitation, any (i)
suit, action, legal or administrative proceeding, claim or demand; (ii) actual,
consequential, punitive or special damages; (iii) fines, losses and costs;
(iv)
interest; and (v) attorneys' fees and court costs (including service of process,
filing fees, court and court reporter costs, investigative fees, expert witness
fees and the cost of any bonds, whether taxable or not).
12. |
NOTICES
|
All
notices and other communications permitted or required under this Agreement
shall be in writing and may be served personally, transmitted by facsimile
(with
confirmation) or nationally recognized overnight delivery service (e.g., Federal
Express) or sent by prepaid, certified mail, return receipt requested to the
party's address as set forth below:
For Seller: |
North
American Scientific, Inc.
00000
Xxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Chief Executive Officer
|
With a copy to: |
Xxxxxxxxx
Xxxxx Xxxxxxx & Xxxxx
000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxx
|
For Buyer: |
Xxxxxx
& Xxxxxxx Isotope Products
00000
Xxxxxx Xxxxxxxx
Xxxxxxxx,
XX 00000
Facsimile:
Attention:
Xxxxxxxx Xxxxxx, President and
CEO
|
With a copy to: |
Xxxxxxxxx
Xxxxxxx
0000
X. Xxxxxxx Xxxxxx
XxXxxxx,
XX 00000
Facsimile:
000-000-0000
|
Any
notices or communications shall be deemed effective upon personal delivery,
confirmed receipt of notice transmitted by facsimile, one day after transmitting
the notice by nationally recognized overnight delivery service or three days
after mailing in accordance with this section. Any party may change its address
by notice to the other parties.
13. |
MISCELLANEOUS
|
13.1 Expenses
Of Transaction.
Each
party shall pay their respective attorneys' fees and other costs and expenses
incurred in connection with the negotiation and preparation of this Agreement
and the consummation of the transactions contemplated herein.
13.2 Brokers.
Each
party unconditionally represents and warrants to the other that it has incurred
no liability to any broker, agent or finder relating to this Agreement and
the
transactions contemplated herein.
13.3 Announcements
or Communications Regarding Transaction.
Without
the prior written consent of the other party, no party will make any
announcement or communication to any person regarding the subject matter and
contents of this Agreement, or disclose the existence of this Agreement or
any
of the terms hereof to any person, unless in the opinion of such party
disclosure is required to be made under the Securities Act of 1933, as amended,
or the Securities Exchange Act of 1934, as amended, or as otherwise required
by
law.
13.4 Integrated
Agreement.
This
Agreement and its attachments, constitutes the entire agreement between the
parties concerning the subject hereof and cannot be amended or modified except
by a written instrument executed by all of the parties.
13.5 Waivers.
Any
waiver by any party shall be in writing and shall not be construed as a
continuing waiver. No waiver shall be implied from any delay or failure to
take
action on account of any default by any party. Consent by any party to any
act
or omission by another party shall not be construed to be a consent to any
other
subsequent act or omission or to waive the requirement for consent to be
obtained in any future or other instance.
13.6 Assignment.
No
party shall convey, assign, encumber or otherwise transfer its rights and
obligations under this Agreement without the prior written consent of the other
party, which consent shall not be unreasonably withheld.
13.7 No
Third Party Beneficiaries.
Nothing
contained in this Agreement or in any Ancillary Document shall create or be
deemed to create any rights or benefits in any third parties.
13.8 Successors.
Except
as provided to the contrary in this Agreement, this Agreement shall be binding
on and inure to the benefit of the parties and their heirs, legal
representatives, successors and assigns.
13.9 Exhibits
and Schedules.
All
exhibits and schedules referred to in this Agreement are attached to this
Agreement and incorporated by reference.
13.10 Interpretation.
Wherever the context of this Agreement requires, all words used in the singular
shall be construed to have been used in the plural, and vice versa, and the
use
of any gender specific pronoun shall include any other appropriate gender.
The
term “person” shall refer to any individual, corporation or legal entity having
standing to bring an action in its own name under applicable state law. The
conjunctive “or” shall mean “and/or” unless otherwise required by the context in
which the conjunctive “or” is used. The word “include(s)” means “include(s)
without limitation” and the word “including” means “including” or “including but
not limited to.” This Agreement has been negotiated at arm's length and each
party has been represented by independent legal counsel in this transaction.
Accordingly, each party hereby waives any benefit under any rule of law
(including Section 1654 of the California Civil Code) or legal decision that
would require interpretation of any ambiguities in this Agreement against the
party drafting it. The provisions of this Agreement shall be interpreted in
a
reasonable manner to effect the purposes of the parties and this
Agreement.
13.11 Further
Assurances.
The
parties shall at their own cost and expense execute, acknowledge and deliver
such further documents and instruments and shall take such other actions as
may
be reasonably required or appropriate to carry out the intent and purposes
of
this Agreement.
13.12 Severability.
If any
term or provision of this Agreement is determined to be illegal, invalid or
unenforceable in whole or in part for any reason, such provision or part thereof
shall be stricken from this Agreement, and such provision shall not affect
the
legality, validity or enforceability of the remaining provisions of this
Agreement.
13.13 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, buy all of which together shall constitute one and the
same
instrument.
IN
WITNESS WHEREOF, the parties to this Agreement have duly executed it as of
the
date first set forth above.
BUYER:
XXXXXX
& XXXXXXX ISOTOPE PRODUCTS, INC.
A
California Corporation
By:
/s/
Xxxxx
Xxxxxx
Title:
President
&
CEO
SELLER:
NORTH
AMERICAN SCIENTIFIC, INC.
By:
/s/
Xxxx X.
Xxxx
Title:
President
&
CEO
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933; IT HAS BEEN
ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS MAY BE AUTHORIZED UNDER
THE
SECURITIES ACT OF 1933, AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
XXXXXX
& XXXXXXX ISOTOPE PRODUCTS, INC.
SECURED
PROMISSORY NOTE
September
___, 2008
$2,000,000.00
Xxxxxx
& Xxxxxxx Isotope Products, Inc., a California corporation (the
“Company”),
for
value received, hereby promises to pay to the order of North American
Scientific, Inc. (the “Holder”)
or the
Holder’s registered assigns, the sum of Two Million Dollars ($2,000,000.00) on
January 15, 2009 (the “Maturity
Date”).
This
Secured Promissory Note is given by the Company to Holder pursuant to the terms
and provisions of that certain Purchase and Sale Agreement, dated August 29,
2008, by and between the Company and the Holder (the “Purchase
Agreement”),
as
partial consideration for the purchase by the Company of the Business Assets
(as
defined in the Purchase Agreement) from Holder.
1. Payment.
Maker
shall pay the sum of Two Million Dollars ($2,000,000.00) to the Holder on the
Maturity Date. Upon payment in full of this amount, this Note shall be
surrendered to the Holder for cancellation. Notwithstanding the foregoing,
the
amount due under this Note is subject to adjustment pursuant to Section 2.3
of
the Purchase Agreement.
2. Prepayment.
The
Company may prepay, in whole or in part, any portion of the outstanding balance
under this Note by tender to the Holder of funds by check or wire transfer
of a
portion or all of the outstanding balance.
3. Security
Interest.
The
Company hereby pledges and grants to Holder a continuing security interest
in
all of its right, title, and interest in the property described in Section
4
below (collectively and severally, the “Collateral”),
to
secure performance of the Company’s obligations hereunder. The security interest
under this Section 3 extends to all Collateral of the type described in Section
4 which the Company may acquire at any time during the continuation of this
Note.
4. Collateral.
The
Collateral consists of all of the Company’s right, title and interest in and to
the following:
(a) All
of
the Business Assets (as defined in the Purchase Agreement), and any interest
in
Business Assets, and all attachments, accessories, accessions, replacements,
substitutions, additions, and improvements to any of the foregoing, wherever
located; and
(b) All
the
Company’s books and records relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
5. Rights
to Collateral.
Upon
the occurrence of an Event of Default, Holder shall have all of the remedies
of
a secured party under Division 9 of the California Uniform Commercial Code
solely with respect to the Collateral.
6. Defaults
and Remedies.
(a) Events
of Default.
An
“Event of Default” shall occur if:
(i) the
Company shall default in the payment of the outstanding balance under this
Note,
when and as the same shall become due and payable;
(ii) the
Company shall commit a material breach of, or default under, any other provision
of this Note;
(iii) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (a) relief in respect of
the
Company, or of a substantial part of its property or assets, under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other
Federal or state bankruptcy, insolvency, receivership or similar law, (b) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company, or for a substantial part of its property
or
assets, or (c) the winding up or liquidation of the Company; and such proceeding
or petition shall continue undismissed for ninety (90) days, or an order or
decree approving or ordering any of the foregoing shall be entered; or
(iv) the
Company shall (a) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (b) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of
any
petition described in paragraph (ii) of this Section 6(a), (c) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any subsidiary, or for a
substantial part of its property or assets, (d) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(e)
make a general assignment for the benefit of creditors, (f) become unable,
admit
in writing its inability or fail generally to pay its debts as they become
due
or (g) take any action for the purpose of effecting any of the
foregoing.
(b) Acceleration.
If an
Event of Default occurs under Section 6(a)(iii) or (iv), then, the outstanding
balance under this Note shall automatically become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which are
expressly waived in Section 9 below. If any other Event of Default occurs and
is
continuing the Holder, by written notice to the Company, may declare the
outstanding balance under this Note to be immediately due and payable.
7. Release
and Termination.
Upon
payment in full or conversion of the outstanding balance of the Note, Holder
shall promptly execute and deliver to the Company such documents, instruments,
termination statements and releases as shall be requested by the Company in
order to terminate and discharge all of the liens, security interests and
encumbrances created by or pursuant to this Note.
2
8. Loss,
Etc., of Note.
Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note, and of indemnity reasonably satisfactory to the
Company if lost, stolen or destroyed, and upon surrender and cancellation of
this Note if mutilated, and upon reimbursement of the Company’s reasonable
incidental expenses, the Company shall execute and deliver to the Holder a
new
Note of like date, tenor and denomination.
9. Waiver.
The
Company hereby waives presentment, demand, notice of nonpayment, protest and
all
other demands and notices in connection with the delivery, acceptance,
performance or enforcement of this Note. If an action is brought for collection
under this Note, the Holder shall be entitled to receive all costs of
collection, including, but not limited to, its reasonable attorneys’
fees.
10. Notices.
Any
written notice, consent or other communication provided for in this Note shall
be delivered or sent by registered or certified U.S. Mail, with postage prepaid,
to the address set forth opposite below. Such addresses may be changed by
written notice given as provided herein.
If to the Company: |
Xxxxxx
& Xxxxxxx Isotope Products, Inc.
00000
Xxxxxx Xxxxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxxxx Xxxxxx, President and
CEO
|
If to Holder: |
North
American Scientific, Inc.
00000
Xxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
|
11. Transferability.
This
Note evidenced hereby may not be pledged, sold, assigned or transferred except
(i) to any subsidiary wholly owned (directly or through intermediate wholly
owned subsidiaries) by the Holder, (ii) to any director, shareholder or
executive officer of the Holder, (iii) to any corporation, partnership or other
entity resulting from any merger, consolidation or other reorganization to
which
Holder is a party or any corporation, partnership or other person or entity
to
which Holder may transfer all or substantially all of Holder’s assets and
business, or (iv) with the express written consent of the Company, which may
be
withheld in its sole discretion; provided, however, that any such transfer
shall
only be made in compliance with applicable federal and state securities laws.
Any pledge, sale, assignment or transfer in violation of the foregoing shall
be
null and void.
12. Successors
and Assigns.
Subject
to Section 11, all of the covenants, stipulations, promises, and agreements
in
this Note shall bind and inure to the benefit of the parties’ respective
successors and assigns, whether so expressed or not.
13. Governing
Law.
This
Note shall be governed by the laws of the State of California, and the laws
of
such state (other than conflicts of laws principles) shall govern the
construction, validity, enforcement and interpretation hereof, except to the
extent federal laws otherwise govern the validity, construction, enforcement
and
interpretation hereof.
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IN
WITNESS WHEREOF, the Company has caused this Note to be issued this ___ day
of
September, 2008.
Xxxxxx & Xxxxxxx Isotope Products, Inc. | |
Xxxxxxxx Xxxxxx | |
President and CEO |
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