AGREEMENT FOR PURCHASE AND SALE OF ASSETS
AGREEMENT
FOR PURCHASE AND SALE OF ASSETS
This
Agreement for Purchase and Sale of Assets (“Agreement”) is made as of September
14, 2007 by and among MTI Partners II, L.P. (“MTI-II” or “Seller”), a limited
partnership with a principal business address of 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx
0, Xxxxx 000, Xxxxxxx, Xxxxxxx, and Modern Medical Modalities Corporation
(“MMMC” or “Buyer”), a New Jersey corporation with a principal business address
of 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx.
1. Sale
and Transfer of Assets.
Subject
to the terms and conditions set forth in this Agreement, Seller agrees to sell,
convey, transfer, assign, and deliver to Buyer, and Buyer agrees to purchase
from Seller, the assets (“Assets”) of Seller as described on Exhibit “A”
hereto.
2. Consideration
From Buyer at Closing.
As full
payment for the transfer of the Assets to Buyer, at the closing (“Closing”) of
the sale of Assets, Buyer shall deliver to Seller a stock certificate(s) in
the
name of Seller, or its assigns, representing 500,000 shares of MMMC common
stock, and a stock warrant agreement in the name of Seller, or its assigns,
representing 900,000 shares of MMMC common stock at $0.70
per
share exercise price, and shall pay $250,000 USD within 12 months from the
date
of this agreement to Seller, or its assigns as specified in Exhibit “B” (which
collectively represents the “Purchase Price”).
3. Assumption
of Liabilities.
It is
expressly understood and agreed that Buyer shall not be liable for any of the
obligations or liabilities of Seller of any kind and nature.
4. Taxes.
Seller
shall be responsible and shall pay all taxes of any kind or character relating
to the Assets, if any. Furthermore, Seller shall be responsible for the payment
of any transfer taxes of any kind or character arising from the sale and
transfer of the Assets pursuant to this Agreement.
5. Representations
and Warranties of Seller.
Seller
represents and warrants, that:
5.1 Debts,
Obligations and Liabilities.
Seller
does not have any debts, liabilities, or obligations of any nature, whether
accrued, absolute, contingent, or otherwise, whether due or to become due,
related to or encumbering the Assets.
5.2 Tax
Returns Filed.
Within
the times and in the manner prescribed by law, Seller has filed all tax returns
required by law and has paid all taxes, assessments and penalties due and
payable. There are no present disputes as to taxes of any nature payable by
Seller. Seller will provide Buyer with copies of all tax returns filed for
the
last three fiscal years if requested by Buyer.
5.3 Trade
Names, Trademarks and Copyrights.
Exhibit
“C” to this Agreement is a schedule of all trade names, trademarks, service
marks and copyrights and their registrations, if any, owned by Seller or in
which Seller has any rights or licenses, solely as they relate to the Assets.
Seller has no knowledge of any infringement or alleged infringement by others
of
any such trade name, trademark, service xxxx or copyright. Seller has not
infringed, and is not now infringing, on any trade name, trademark, service
xxxx
or copyright belonging to any other person. Seller has the right to sell or
assign to Buyer all owned trademarks, trade names, service marks and copyrights,
and all such licenses or other rights.
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5.4 Trade
Secrets
As they
relate to the Assets, Seller is the sole owner of each of these trade secrets,
free and clear of any liens, encumbrances, restrictions, or legal or equitable
claims of others. Seller has taken all reasonable security measures to protect
the secrecy, confidentiality and value of these trade secrets. Any of Seller’s
partners or employees and any other persons who, either alone or in concert
with
others, developed, invented, discovered, derived, programmed or designed these
secrets, or who have knowledge of or access to information relating to them,
have been put on notice and, if appropriate, have entered into agreements that
these secrets are proprietary to Seller and are not to be divulged or
misused.
5.5 No
Competition.
In
consideration for the purchase of the Assets, Seller agrees that it will not,
for a period of two years from the date of this agreement, directly or
indirectly engage in, or have any interest in any person, firm, corporation,
or
business that produces, manufactures, develops, markets, purchases, or sells
medical software that is competitive with the Assets. Furthermore, neither
Seller nor any of its employees or partners shall disclose, divulge,
communicate, use to the detriment of Buyer or for the benefit of any other
person or persons, or misuse in any way any confidential information or trade
secrets, including technology information, secret processes, know-how, formulas
or other technical data transferred by Seller to Buyer.
5.6 Title
to Assets.
Seller
has good and marketable title to all the Assets and interests in the Assets,
whether real, personal, mixed, tangible, or intangible, which constitute all
the
Assets and interests in the Assets that Seller is transferring to Buyer. The
Assets are free and clear of restrictions on or conditions to transfer or
assignment, and free and clear of mortgages, liens, pledges, charges,
encumbrances, equities, claims, easements, covenants, conditions or
restrictions, the lien of current taxes not yet due and payable and possible
minor matters that, in the aggregate, are not substantial in amount and do
not
materially detract from or interfere with the present or intended use of the
Assets.
5.7 Compliance
with Laws.
Seller
has complied with, and is not in violation of, any statute, law or regulation
affecting the Assets.
5.8 Litigation.
There
is not pending, and Seller is unaware of any threatened suit, action,
arbitration or legal, administrative or other proceeding, or governmental
investigation, against or affecting the Assets.
5.9 Agreement
Will Not Cause Breach or Violation.
The
consummation of the transaction contemplated by this Agreement will not result
in or constitute any of the following: (1) a default or an event that, with
notice or lapse of time or both, would be a default, breach or violation of
any
lease, license, promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust, or other agreement, instrument or
arrangement to which Seller is a party or by which the Assets are bound; (2)
an
event that would permit any party to terminate any agreement or to accelerate
the maturity of any indebtedness or other obligation of Seller related to the
Assets; or (3) the creation or imposition of any lien, charge or encumbrance
on
the Assets.
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5.10 Authority
and Consents.
Seller
has the right, power, legal capacity and authority to enter into and perform
its
obligations under this Agreement, and no approvals or consents of any
governmental authorities or persons other than Seller are necessary in
connection with it. The execution and delivery of this Agreement by Seller
has
been duly authorized by all necessary corporate action on the part of
Seller.
5.11 Full
Disclosure.
None of
the representations and warranties made by Seller in this Agreement, or made
in
any certificate or memorandum furnished or to be furnished by Seller, contains
or will contain any untrue statement of a material fact, or omits to state
a
material fact, necessary to make the statements made not misleading. All
representations and warranties of Seller included in this Agreement and in
any
written statements delivered to Buyer under this Agreement will be true and
correct as of the Closing Date as if made on that date.
6. Indemnification
and Survival of Representations and Warranties.
6.1 Survival
of Representations, Warranties, Covenants and Agreements.
The
representations, warranties, covenants, agreements and undertakings of Seller
set forth herein shall survive the Closing.
6.2 Indemnification
by Seller.
Seller
shall indemnify, defend and hold harmless Buyer and its past and present
officers, directors, affiliates, agents and representatives against and in
respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorney’s fees, that Buyer shall incur or suffer that arise,
result from or relate to any breach or inaccuracy of, or failure by Seller
to
perform, any of its representations, warranties, covenants or agreements in
this
Agreement or in any schedule, certificate, exhibit or other instrument furnished
or to be furnished by Seller under this Agreement. Specifically, without
limiting the foregoing, Seller shall be solely responsible for the payment
of
any sums incurred as a result of any claim of intellectual property infringement
by a third party with respect to the Assets.
7. Mutual
Conditions Precedent.
The
closing of this transaction will be conditioned upon:
7.1 The
completion, and MMMC’s satisfaction with the results thereof, of MMMC’s due
diligence investigation of the Assets.
7.2 Approval
must be obtained by the Board of Directors of MMMC and the General Partner
of
MTI-II.
8. Seller’s
Obligations Before Closing.
Seller
covenants that from the date of this Agreement until the Closing:
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8.1 Buyer’s
Access to Premises and Information.
Buyer
and its counsel, accountants and other representatives shall have full access
during normal business hours to all properties, books, accounts, records,
contracts and documents of or relating to the Assets. Seller shall furnish
or
cause to be furnished to Buyer and its representatives all data and information
concerning the Assets that may be reasonably requested.
8.2 Conduct
of Business in Normal Course.
Seller
will carry on its business and activities diligently and in substantially the
same manner as it previously has been carried out and shall not make or
institute any unusual or novel methods of manufacture, purchase, sale,
management, accounting or operation that vary materially from those methods
used
by Seller as of the date of this Agreement.
8.3 Existing
Agreements.
Seller
will not modify, amend, cancel or terminate any existing contracts or
agreements, solely related to the Assets, without the written consent of
Buyer.
9. Buyer’s
Obligations Before Closing.
Buyer
agrees that, unless and until the Closing has been consummated, Buyer will
hold
in strict confidence, and will not use to the detriment of Seller, all data
and
information with respect to the Assets obtained in connection with this
transaction. If the transaction contemplated by this Agreement is not
consummated, Buyer will return to Seller all the data and information that
Seller may reasonably request. Whether or not the Closing shall take place,
Seller shall waive any cause of action, right or claim arising out of the access
of Buyer or its representatives to any trade secrets or other confidential
business information from the date of this Agreement until the Closing Date,
except for the intentional competitive misuse by Buyer or its representatives
of
such trade secrets or other confidential business information if the Closing
does not take place.
10. Cooperation
in Securing Consents of Third Parties.
Buyer
will use its best efforts to assist Seller in obtaining the consent of all
necessary persons and agencies to the assignment and transfer to Buyer of the
Assets to be assigned and transferred under the terms of this
Agreement.
11. Conditions
Precedent to Buyer’s Performance.
The
obligations of Buyer to purchase the Assets under this Agreement are subject
to
the satisfaction, at or before the Closing, of all the conditions set out below.
Buyer may waive any or all of these conditions in whole or in part, provided,
however, that no such waiver of a condition shall constitute a waiver by Buyer
of any of its other rights or remedies, at law or in equity, if Seller shall
be
in default of any representation, warranty or covenant under this
Agreement.
11.1 Accuracy
of Seller’s Representations and Warranties.
Except
as otherwise permitted by this Agreement, all representations and warranties
of
Seller included in this Agreement or in any written statement that shall be
delivered to Buyer under this Agreement shall be true on and as of the Closing
Date as though made at that time.
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11.2 Performance
by Seller.
Seller
shall have performed, satisfied and complied with all covenants, agreements
and
conditions required by this Agreement to be performed or complied with by each
of them, on or before the Closing Date.
11.3 No
Material Adverse Change.
Prior
to the Closing Date, Seller shall not have sustained any material loss or damage
to the Assets. For purposes of this Agreement, changes,
loss or damage shall be deemed to be “material” or “materially adverse” if the
cost to remedy any such individual change or aggregate of changes shall equal
or
exceed One Thousand U.S. Dollars (U.S. $1,000).
11.4 Buyer’s
Inspection.
Buyer
shall make, or cause to be made, such investigation as it deems necessary or
advisable of the Assets. Buyer shall have the right to terminate this Agreement
if, as a result of its investigation, it is
not
satisfied with any of its findings.
11.5 Due
Approval.
The
execution and delivery of this Agreement by Seller and the performance of its
covenants and obligations under it will be duly authorized by all necessary
action by Seller and Buyer shall receive copies of all materials pertaining
to
that authorization, certified by Seller as true and correct.
12. Conditions
Precedent to Seller’s Performance.
The
obligations of Seller to sell and transfer the Assets under this Agreement
are
subject to the satisfaction, at or before the Closing, of all of the following
conditions. Seller may waive any or all of these conditions in whole or in
part,
however, no such waiver of a condition shall constitute a waiver by Seller
of
any of its rights or remedies, at law or in equity, if Buyer should be in
default of any of its representations, warranties or covenants under this
Agreement.
12.1 Accuracy
of Buyer’s Representations and Warranties.
All
representations and warranties by Buyer contained in this Agreement or in any
written statement delivered by Buyer under this Agreement shall be true on
and
as of the Closing Date as though such representations and warranties were made
on and as of that date.
12.2 Buyer’s
Performance.
Buyer
shall have performed and complied with all covenants and agreements and
satisfied all conditions that it is required by this Agreement to perform,
comply with or satisfy, before or at the Closing.
12.3 Buyer’s
Corporate Approval.
The
Board of Directors of Buyer shall have duly authorized and approved the
execution and delivery of this Agreement and all corporate action necessary
or
proper to fulfill the Buyer’s obligations to be performed under this Agreement
on or before the Closing Date.
12.4 Buyer’s
Stock Value. At
the
Closing, Buyer shall deliver to Seller a stock certificate(s)
in the name of the seller, or its assigns, representing 500,000 shares of MMMC
common stock, and shall deliver to Seller a stock warrant agreement(s) in the
name of the Seller, or its assigns, representing 900,000 shares of MMMC common
stock exercisable at $0.70
per
share.
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13. The
Closing.
The
transfer of the Assets by Seller to Buyer shall take place on or before
September 30, 2007 (the “Closing Date”) at MTI-II Partners, L.P 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 or at such other time
and
place as the parties may agree to in writing (“Closing Date”).
13.1 Seller’s
Obligations at Closing.
At the
Closing, Seller shall deliver or cause to be delivered to Buyer:
(a) a
Xxxx of
Sale, in the form attached hereto as Exhibit “D” pertaining to all the Assets
being transferred pursuant to the terms of this Agreement;
(b) a
certificate executed by Seller certifying that all of Seller’s representations
and warranties under this Agreement are true as of the Closing Date, as though
each of those representations and warranties had been made on that date;
and
(c)
tax
clearances issued by all taxing authorities, if applicable.
Simultaneously,
with the consummation of the transfer, Seller will put Buyer into full
possession and enjoyment of the Assets to be conveyed and transferred pursuant
to this Agreement.
Seller,
at any time before the Closing Date, will execute, acknowledge and deliver
any
further deeds, assignments, conveyances, and other assurances, documents and
instruments of transfer, reasonably requested by Buyer, and will take any other
action consistent with the terms of this Agreement that may reasonably be
requested by Buyer for the purpose of assigning, transferring, granting,
conveying and confirming to Buyer, or reducing to possession, any or all Assets
to be conveyed and transferred under this Agreement. If requested by Buyer,
Seller further agrees to prosecute or otherwise enforce in its own name, for
the
benefit of Buyer, any claims, rights or benefits that are transferred to Buyer
under this Agreement and that require prosecution or enforcement in Seller’s
name.
13.2 Buyer’s
Obligations at Closing.
At the
Closing, Buyer shall deliver or cause to be delivered to Seller :
(a)
certificates representing the Shares as specified in paragraph 2;
and
(b) warrant
agreement(s) representing the Shares as specified in paragraph
2; and
(c) certified
resolutions of Buyer’s board of directors authorizing the execution and
performance of this Agreement and all actions to be taken by Buyer under this
Agreement.
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14. Publicity.
All
notices to third parties and all other publicity concerning the transactions
contemplated by this Agreement shall be jointly planned and coordinated by
and
between Buyer and Seller. No party shall act unilaterally in this regard without
the prior written approval of the other, however, this approval shall not be
unreasonably withheld. This clause specifically excludes any required regulatory
filings with the SEC by MMMC
15. Expenses.
Each
party shall pay all costs and expenses incurred or to be incurred by it in
negotiating and preparing this Agreement and in closing and carrying out the
transactions contemplated by this Agreement, with the exception of all expenses
incurred in transferring the Assets, removing liens, and obtaining all necessary
government approvals for this transfer and sale, which expenses shall be borne
solely by Seller.
16. Miscellaneous.
16.1 Governing
Law.
This
Agreement shall be deemed to be made in, and in all respects shall be
interpreted, construed and governed by and in accordance with the laws of the
state of New Jersey, United States of America.
16.2 Venue
and Arbitration.
Any
dispute between Buyer and Seller involving the interpretation of this Agreement
or the obligations of a party to it shall be determined by binding arbitration
in accordance with the arbitration rules of the American Arbitration Association
in the County of Xxxxxx, State of Georgia, United States of America. The
arbitrator shall have the authority to permit discovery upon request of a party.
The cost of the arbitration shall be shared equally.
16.3 Notices.
All
notices, demands, requests, consents, approvals or other communications
(“Notices”) given hereunder shall be in writing, and shall be given by personal
delivery or by express mail, Federal Express, DHL or other similar form of
recognized airborne/overnight delivery service (which forms of Notice shall
be
deemed to have been given upon delivery), or by telex or facsimile transmission
(which forms of Notice shall be deemed delivered upon confirmed transmission),
or by mailing in the mail by registered or certified mail, return receipt
requested, postage prepaid (which forms of Notice shall be deemed to have been
given upon the tenth (10th) business day following the date mailed). Notices
shall be addressed as follows:
| If to Seller, addressed to: |
MTI-II
Partners, L.P.
|
0000
Xxxxxxxxx Xxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
| If to Buyer, addressed to: |
000
Xxxxxxxx Xxxxxx
Xxxxx,
Xxx Xxxxxx 00000
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or
to
such other address as to which any party hereto may have notified the others
in
writing.
16.4 Section
Headings.
The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of
this Agreement.
16.5 Counterparts
and Facsimiles.
For the
convenience of the parties to this Agreement, this document may be executed
by
facsimile signatures and in counterparts which shall together constitute the
agreement of the parties as one and the same instrument.
16.6 Severability.
If any
provision of this Agreement or the application thereof to any party or
circumstance shall be held invalid or unenforceable to any extent, the remainder
of this Agreement and application of such provision to the other party or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by applicable law.
16.7 Entire
Agreement; Modification.
This
Agreement, including the Exhibits hereto, embodies the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings related thereto.
The parties hereto recognize and agree that no representations or warranties
have been made except as set forth in this Agreement and the Exhibits hereto.
This Agreement may be modified only by a written instrument signed by each
of
the parties.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF,
the
parties hereto have executed or caused this Agreement for Purchase and Sale
of
Assets to be executed as of the date first above written.
|
“BUYER”
Modern
Medical Modalities, a New Jersey corporation
By:
____________________________________
“SELLER”
MTI-II
Partners L.P., a Georgia limited partnership
By:
____________________________________
|
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