EXHIBIT 10.9
PAYMENT AGREEMENT
This Payment Agreement ("this Agreement") is entered into as of April 30,
2002, between Bayer Corporation ("Bayer"), with offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000, and MediQuik Services, Inc. ("MediQuik"), with
offices at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000.
WHEREAS, Bayer commenced a civil action (the "Action") against MediQuik in
the United States District Court for the Southern District of Texas, docketed at
No. H-00-4247, in which Action Bayer sought relief against MediQuik relating to
certain written agreements between Bayer and MediQuik; and
WHEREAS, on December 21, 2001, the Court entered a judgment (the
"Judgment") in the Action for Bayer and against MediQuik, awarding compensatory
damages in the amount of $494,004.00 and prejudgment interest in the amount of
$125,790.46 to Bayer (such damages and prejudgment interest hereinafter are
referred to collectively as the "Judgment Amount"); and
WHEREAS, on March 11, 2002, the Court entered an order in the Action
awarding attorneys' fees to Bayer in the amount of $118,829.65 (the "Fee
Amount"), and Bayer has filed a xxxx of costs in the Action, to which no
objection has been filed, for taxable costs in the amount of $11,939.83 (the
"Costs Amount"); and
WHEREAS, MediQuik remains obligated to Bayer for unpaid invoices in the
total amount of $18,749.20 (the "Invoice Amount") for products sold and
delivered by Bayer to MediQuik; and
WHEREAS, Bayer and MediQuik have agreed to a schedule for payment of
amounts owed by MediQuik to Bayer, including the Judgment Amount, the Fee
Amount, the Costs Amount and the Invoice Amount, which amounts (including
accrued interest), for purposes of
this Agreement, Bayer and MediQuik have agreed totaled $770,000.00 (the
"MediQuik Obligation") as of January 1, 2002, with such payments (the
"Payments") to be made in accordance with and subject to the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, Bayer and MediQuik, intending to be legally bound hereby,
agree as follows:
1. MediQuik shall pay to Bayer the total amount of the MediQuik Obligation,
along with additional interest to be calculated as provided in Paragraph 2 of
this Agreement, according to the following schedule of Payments:
(a) MediQuik shall pay to Bayer 12 monthly Payments, each in the amount
of $7,500.00 per month, on or before the 15th day of each calendar month,
beginning on May 15, 2002, and continuing through April 15, 2003;
(b) MediQuik shall pay to Bayer 12 monthly Payments, each in the amount
of $20,000.00 per month, on or before the 15th day of each calendar month,
beginning on May 15, 2003, and continuing through April 15, 2004; and
(c) MediQuik shall pay to Bayer 15 monthly Payments, each in the amount
of $33,653.00 per month, on or before the 15th day of each calendar month,
beginning on May 15, 2004, and continuing though July 15, 2005.
(d) Unless Bayer otherwise directs, all Payments to be made pursuant to
this Paragraph 1 shall be made by checks payable to Bayer Corporation, drawn on
accounts in which good and sufficient funds are deposited to ensure payment of
the checks by MediQuik's bank, and each such check shall be sent in such manner
that it is calculated to be received by Bayer at its offices in Tarrytown, New
York (Attention: Xxxxx Xxxxx), on or before the date on which each such Payment
is due under the payment schedule in this Paragraph 1. All such Payments
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shall be credited, as received by Bayer, toward the MediQuik Obligation. So long
as MediQuik makes timely Payments as provided in this Paragraph 1, Bayer shall
refrain from further efforts to enforce and/or collect the Judgment. In the
event that any such Payment is not received by Bayer on or before the due date
as provided in this Paragraph 1, Bayer may proceed immediately to take all
appropriate actions to enforce and/or collect the Judgment. For and in
consideration of Bayer's forebearance from enforcing the Judgment during
MediQuik's performance under this Agreement, MediQuik covenants and agrees that
MediQuik will not assert, and MediQuik hereby specifically waives, any and all
defenses to the execution and/or enforcement of the Judgment.
2. The entire unpaid amount of the MediQuik Obligation shall bear interest,
at the rate of 3.5% per annum simple interest, until the MediQuik Obligation has
been paid in full. For purposes of calculating this interest obligation, Bayer
and MediQuik agree that the total amount of interest to accrue, assuming that
MediQuik makes all Payments in a timely manner as provided in Paragraph 1 of
this Agreement, shall total $64,810.00, which amount is included in the Payments
to be made as provided in subparagraph (c) of Paragraph 1 of this Agreement.
Additional interest, in the amount of 0.01% per diem, shall accrue, and shall be
paid to Bayer by MediQuik as it accrues, on any and all Payments that are not
paid when due as provided in Paragraph 1 of this Agreement.
3. In the event that MediQuik has made Payments to Bayer in the total
amount of $500,000.00 after the date of this Agreement and on or before December
31, 2002, the entire MediQuik Obligation shall be deemed to have been paid in
full. In the event that MediQuik has made Payments to Bayer in the total amount
of $600,000.00 after the date of this Agreement and
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on or before December 31, 2003, the entire MediQuik Obligation shall be deemed
to have been paid in full.
4. In the event that, at any time after the date of this Agreement and
before the MediQuik Obligation has been paid in full, MediQuik obtains new
equity or debt financing ("Investment Funds"), as a result of which MediQuik
receives Investment Funds in the total amount of $100,000.00 or more, MediQuik
shall, immediately upon MediQuik's receipt of such funds, and unless and until
the MediQuik Obligation has been paid in full, pay to Bayer the following
amounts, calculated as a percentage of the total of such Investment Funds
received by MediQuik after the date of this Agreement:
(a) 10% of all Investment Funds up to $250,000.00;
(b) 12% of all Investment Funds in excess of $250,000.00 and up to
$500,000.00; and
(c) 15% of all Investment Funds in excess of $500,000.00.
All such Investment Funds paid by MediQuik to Bayer shall be credited against
MediQuik's then-existing Payment obligations pursuant to Paragraph 1 of this
Agreement, to the extent of the amount of such Investment Funds that are paid to
Bayer. To the extent that Bayer receives funds from First Bank & Trust, formerly
First Bank Texas, N.A. (the "Bank"), as garnishee in a writ of garnishment
served on the Bank in the Action, free and clear of any claims by any other
persons, firms or entities (including but not limited to the Bank, MediQuik
and/or their respective attorneys), such funds also will be credited against
MediQuik's then-existing Payment obligations pursuant to Paragraph 1 of this
Agreement, to the extent of the amount of such funds that are received by Bayer.
5. In the event that MediQuik is or becomes the subject of a voluntary or
involuntary petition in bankruptcy (a "Petition"), pursuant to Title 11 of the
United States Code, filed within
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105 calendar days after the date on which any Payment is made by MediQuik, Bayer
shall retain all of its rights to pursue any and all claims against MediQuik to
enforce and/or collect the Judgment and/or to collect the MediQuik Obligation,
except that Bayer shall be entitled to retain all Payments that have been
received by Bayer and Bayer's claims shall be reduced by the amount of such
Payments that have been received and that can be retained by Bayer,
notwithstanding the Petition. MediQuik and Bayer stipulate and agree that, in
entering into this Agreement, Bayer has agreed to forebear enforcement of the
Judgment in exchange for the timely receipt of Payments as set forth in this
Agreement. Bayer and MediQuik stipulate and agree that, in holding the Judgment,
on a month-to-month basis, Bayer is providing new value to MediQuik, as that
term is used in 11 U.S.C. Section 547(c)(a)(A). As such, MediQuik's monthly
Payments are contemporaneous exchanges for new value given to MediQuik.
6. Upon payment in full of the MediQuik Obligation, Bayer shall execute a
release of the Judgment and deliver it to MediQuik.
7. As additional security for MediQuik's obligations to make Payments under
this Agreement and to pay the MediQuik Obligation in full, MediQuik grants to
Bayer a security interest (the "Security Interest") in all of MediQuik's current
and future accounts receivable, until the MediQuik Obligation has been paid in
full. The Security Interest shall be the primary security interest to be granted
by MediQuik in or relating to its accounts receivable, and MediQuik shall
execute and deliver to Bayer all financing statements and other documents that
are necessary or appropriate in order to perfect the Security Interest.
8. This Agreement, and the payment terms and other terms and conditions
provided for in this Agreement, shall be treated as confidential by MediQuik,
and, except as provided in this Paragraph 8, MediQuik shall not, either directly
or indirectly or by or through anyone else
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acting on behalf of MediQuik, disclose or permit to be disclosed to any other
person, firm or entity this Agreement or any other information about this
Agreement, without the prior express written consent of Bayer; provided,
however, that MediQuik may disclose this Agreement and other information about
this Agreement to the extent that it may be legally required to do so by court
order, subpoena or other legal process, after giving Bayer as much prior notice
as is practicable under the circumstances, or as may be required for financial
or tax reporting purposes; and, provided further, that MediQuik may disclose
this Agreement to any potential investors of funds in MediQuik, and to its
accountants, auditors, legal counsel, and directors, and to other persons with
the prior express written consent of Bayer (which consent will not be
unreasonably withheld), provided that such persons have agreed in writing,
before such disclosure is made, to be bound by the confidentiality provisions
contained in this Paragraph 8; and, provided further, that MediQuik may make a
press release and other public announcements about this Agreement by stating
that MediQuik has agreed to satisfy the Judgment on terms mutually agreeable to
Bayer.
9. This Agreement constitutes the entire agreement of the parties relating
to the subject matter of this Agreement, and this Agreement may not be amended
or modified except by a writing signed by authorized representatives of both
parties.
10. This Agreement may be executed in two identical counterparts, each of
which shall be deemed to be an original.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the laws of that state
relating to choice and conflict of laws.
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MEDIQUIK SERVICES, INC.
By /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Title: Chairman and Chief Executive Officer
ACKNOWLEDGMENT
STATE OF TEXAS : SS:
COUNTY OF XXXXXX :
On this 3rd day of May, 2002, before me, a Notary Public in and for said
county, personally appeared Xxxxxx Xxxxxx, to me personally known, who, being by
me duly sworn, did state that he is the Chairman and Chief Executive Officer of
MediQuik Services, Inc., the company described in the foregoing Payment
Agreement, that he is fully authorized to execute this Agreement on behalf of
MediQuik Services, Inc., and that this Agreement is the free act and deed of
MediQuik Services, Inc.
/s/ XXXXX XXXXXXXXX
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[NOTARY SEAL] Notary Public
BAYER CORPORATION
By /s/ XXXXXX MALTA
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Title VP Self Test Business
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ACKNOWLEDGMENT
STATE OF NEW YORK : SS:
COUNTY OF WESTCHESTER :
On this 10th day of May, 2002, before me, a Notary Public in and for said
county, personally appeared Xxxxxx Malta, to me personally known, who, being by
me duly sworn, did state that he is the Vice President of Bayer Corporation, the
company described in the foregoing Payment Agreement, that he is fully
authorized to execute this Agreement on behalf of Bayer Corporation, and that
this Agreement is the free act and deed of Bayer Corporation.
/s/ XXXXX XXXXX
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[NOTARY SEAL] Notary Public
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