PURCHASE AGREEMENT
EXHIBIT
10.1
Purchase
Agreement (this “Agreement”) made as
of September 22, 2008, between Adco Surgical Supply, Inc,. a Maine Corporation
with a principal place of business of 0000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxx 00000 (the “Seller”), and Adco
South Medical Supplies, Inc., a Florida corporation with a principal place of
business of 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000-0000 (the
“Purchaser”),
and Xxxxx Xxxxx, an individual residing at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000 (the “Guarantor”).
WHEREAS, Seller
is a wholesaler and retailer of medical equipment and supplies and additionally
operates an internet web-site and desires to sell, transfer and assign to the
Purchaser its inventory as listed on Schedule A attached hereto, accounts
receivable as listed on Schedule B attached hereto, and fixed and intangible
assets as listed on Schedule C attached hereto (the “Transferred Assets”);
and
WHEREAS, the
Purchaser desires to purchase the Transferred Assets;
NOW, THEREFORE,
the parties hereto, for good and valuable consideration, intending to be bound,
do hereby agree as follows:
1. Purchase and
Sale. The Seller shall sell, assign and transfer the
Transferred Assets to the Purchaser, and the Purchaser shall purchase the
Transferred Assets from the Seller, on the Closing Date (as hereafter defined)
for consideration consisting of One Hundred Thousand Dollars ($100,000) plus the
assumption of certain of the Seller’s liabilities as listed on Schedule D
attached hereto (the “Purchase
Price”). Payment of the Purchase Price shall be made on the
Closing Date by the delivery by the Purchaser by wire transfer of funds in the
amount of $50,000 (of which $5,000 shall be paid by application of the deposit),
a Promissory Note issued
by the Purchaser
(the “Note”)
substantially in the form attached hereto in a principal amount equal to Fifty
Thousand Dollars ($50,000) and the assumption and payment of Seller’s
liabilities as listed on Schedule D. The closing of the purchase and
sale contemplated hereunder (the “Closing”) shall
happen simultaneously with the exchange of executed forms of this Purchase
Agreement by the Seller and Purchaser and the Purchaser’s delivery of the
Purchase Price to the Seller.
2. Seller’s Representations and
Warranties to Purchaser. The Seller hereby represents and
warrants to the Purchaser that:
(a) The
execution, delivery and performance by the Seller of this Agreement do not
conflict with or cause a breach of any instrument, agreement or order of any
court to which the Seller is a party or by which its property is bound; and no
consent, notice or approval by any court or governmental or regulatory authority
is required to be obtained by the Seller in connection with his execution,
delivery and performance of this Agreement.
(b) This
Agreement constitutes the legal, valid and binding obligation of the Seller
enforceable in accordance with its terms.
(c) Seller
has good and marketable title to the Transferred Assets, said title shall be
free and clear of any pledge, lien, charge, encumbrance, assignment, option or
rights of any third party with respect thereto with the exception of a $300,000
line of credit with Key Bank primarily secured by a mortgage on the real estate
owned by the Seller (“Encumbrances”). The
Seller has full power and legal right and authority to sell, assign and transfer
such title to the Purchaser, and upon the sale to the Purchaser of the
Transferred Assets, the Purchaser shall obtain good and marketable title to the
Transferred Assets free of all Encumbrances.
(d) Seller
represents and warrants that, to the best of its knowledge, there are no
lawsuits pending against Adco Surgical Supply, Inc and that Xxxxx Xxxxxx is the
only officer of the corporation.
4. Purchaser’s Representations
and Warranties to Seller. The Purchaser hereby represents and
warrants to the Seller that:
(a) The
execution, delivery and performance by the Purchaser of this Agreement, the
Security Agreement and the Note do not conflict with or cause a breach of any
instrument, agreement or order of any court to which the Purchaser is a party or
by which its property is bound; and no consent, notice or approval by any court
or governmental or regulatory authority is required to be obtained by the
Purchaser in connection with its execution, delivery and performance of this
Agreement and the Note.
(b) This
Agreement, the Security Agreement and the Note constitute the legal, valid and
binding obligations of the Purchaser enforceable in accordance with their
respective terms.
(c) That
it has no indebtedness other than the Note and the Occupancy Agreement, to be
provided hereunder, and it is current on all of its financial
obligations.
(d) It
knows of no reason that either with the passage of time or the occurrence of any
event it will be unable to fully or timely satisfy its obligations to
Seller.
5. Xxxxx Xxxxx’x Representation
and Warranties to Seller. Xxxxx Xxxxx hereby represents and
warrants to the Seller that:
(a) He
owns all the stock of the Purchaser;
(b) That
the Purchaser has no indebtedness, other than the Note and Occupancy Agreement,
to be provided hereunder;
(c) That
he has no indebtedness other than as disclosed to Seller pursuant to the
financial statements he provided dated March 2008, the Promissory Note to Nyer
Medical Group, Inc., dated June 24, 2008, the Note, and the Occupancy Agreement,
to be provided hereunder; and
(d) He
is current on all of his financial obligations and knows of no reason that
either with the passage of time or the occurrence of any event he will be unable
to fully and timely satisfy his obligations to Seller.
6. Conditions to
Closing. The obligations of the Seller and the Purchaser to
perform their respective obligations hereunder shall be subject to (i) the
representations and warranties of the other party being true and correct as of
the Closing as though made as of the Closing Date and (ii) the performance by
the other party of his or its obligations which are to be performed at or before
the Closing. If any such condition to a party’s obligation to close
is not satisfied within ten (10) days after the date hereof (other than due to
the failure of such party to perform his or its obligations hereunder), such
party may terminate this Agreement, and neither the Seller nor the Purchaser
shall have any liability to the other by reason of such
termination.
7. Purchaser’s Option to
Purchase Real Estate. Provided the Purchaser and Xxxxx Xxxxx
shall have fully complied with their obligations under this Agreement, the Note,
the Occupancy Agreement and Xxxxx Xxxxx shall have fully complied with his
obligations to Nyer Medical Group, Inc. pursuant to the Agreement and the
Promissory Note ($25,000) each dated June 24, 2008, Purchaser may elect to
purchase the real property together with the building known as 0000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxx, as described on Exhibit A (the “Property”) hereto by
giving notice of such election in writing (the “Option Notice”) to
Seller to be received by no later than January 31, 2009, together with a $10,000
non-refundable deposit (the
“Deposit”) along with
a letter of commitment from a reputable lending institution for financing that
together with Purchasers documented liquid assets shall be sufficient to satisfy
the full purchase price. Following receipt of the Option Notice and
Deposit, Seller shall convey the Property to Purchaser in as is condition
without representation or warranty by Seller, and Purchaser shall pay One
Million Ninety Thousand Dollars, after application of the Deposit, for a total
of One Million One Hundred Thousand Dollars, so as to be received by the Seller
prior to the first day of the fifth month anniversary of this Agreement
(February 22, 2009), but in any event at least ten business days prior notice
shall have been given to Seller. Otherwise, such sale and purchase
shall be made on terms and conditions then typical for conveyance of similar
commercial properties in Bangor, Maine. Notwithstanding anything to the contrary
contained herein, at the time of such conveyance, Seller shall deliver title to
the Property free of any liens or encumbrances created by Seller, or caused by
Seller or any party claiming by, through or under Seller (other than Purchaser
or any party claiming thereunder) except for the Permitted Exceptions, as
hereinafter defined, and Seller shall provide evidence of its authority to
convey the Property in a form reasonably acceptable to Purchaser, and shall
execute such other commercially reasonable documents as are customary for sales
similar to the sale of the Property. “Permitted Exceptions”
shall mean (i) liens for taxes, assessments and governmental charges not yet due
and payable or due and payable but not yet delinquent; (ii) leases for space in
the Property; and (iii) such other nonmonetary encumbrances with respect to the
Property which do not materially and adversely affect the current use of the
Property. Except for sums necessary to discharge mortgage liens or other
monetary liens created by Seller, or caused by Seller or any party claiming by,
through or under Seller (other than Purchaser or any party claiming thereunder),
Seller shall have no obligation to expend any sum to deliver title as
required
hereunder, and if
Seller is not able to convey title to the Property in accordance with the
provisions hereof, then Purchaser shall have the option, as Purchaser’s sole and
exclusive remedy at law or in equity, to withdraw and cancel any Option Notice
given by Purchaser, in which case all obligations, liabilities and rights of the
parties under this Section shall terminate and be of no further force or
effect. This option may not be assigned and/or transferred by
Purchaser as originally designated hereunder.
8. Miscellaneous. (a) This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, other personal
representatives and permitted assigns. No party may assign his or its
rights or obligations hereunder without the consent of the other party
hereto.
(b) This
Agreement expresses the entire understanding of the parties with respect to the
subject matter hereof. This Agreement may not be amended or waived
except by an instrument in writing signed by each of the parties
hereto.
(c) The
representations and warranties of the parties set forth herein shall survive the
Closing.
(d) If
and to the extent any corporate income taxes are owed by the Seller for periods
prior to the Closing, the Seller shall be responsible for
payment. The Purchaser shall provide to the Seller timely notice and
all documentation related to any such amounts. Seller retains all
rights attributed to the resolution of amounts claimed by any taxing
authority.
(e) This
Agreement may be executed in more than one counterpart, each of which shall be
deemed an original. The signatures on this Agreement may be either
original signatures or telefaxed copies of original signatures.
(f) This
Agreement shall be governed by and interpreted in accordance with the
substantive laws of The Commonwealth of Massachusetts, without giving effect to
conflicts or choice of laws principles.
(g) But
for the Seller’s obligation pursuant to Paragraph 7(d) above, following the
Closing the Seller shall be relieved of all obligations of any nature related to
the Seller. Following the Closing, the Purchaser shall be solely
responsible for all matters of any nature related to the Seller.
(h) Seller,
Purchaser and Xxxxx Xxxxx are simultaneously herewith entering into an Occupancy
Agreement. Purchaser and Xxxxx Xxxxx are providing Seller with the
Note and Purchaser is providing Seller with the Security Agreement.
IN WITNESS
WHEREOF, each of the parties hereto has caused this Agreement to be executed as
of the date first above written.
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SELLER:
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ADCO
Surgical Supply, Inc.
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/s/
Xxxxx Xxxxxx
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By: Xxxxx
Xxxxxx
Title: President
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PURCHASER:
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ADCO South
Surgical Supplies, Inc.
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By: /s/ Xxxxx
Xxxxx
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Xxxxx
Xxxxx
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All Obligations
of the Purchaser are guaranteed by Xxxxx Xxxxx.
/s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
