ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into
as of July ___, 1999, among Medical Manager Southeast, Inc., a Florida
corporation ("Medical Manager"); Xxxxxx Xxxxxx Enterprises, Inc. d/b/a
Medical Information Systems, a Florida corporation ("Company"); and OCG
Technology, Inc., a Delaware corporation, the sole shareholder of the
Company (the "Shareholder"). Certain other capitalized terms used
herein are defined in Article VI and throughout this Agreement.
RECITALS
The Company owns and operates a business involving the sale and
servicing of certain hardware and software to medical practices (the
"Business"). The Company desires to sell substantially all of its
assets, rights and properties pertaining to the Business, and Medical
Manager desires to purchase such assets and rights on the terms and
subject to the conditions set forth in this Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties,
covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF
ASSETS; PURCHASE PRICE; CLOSING
1.1 Purchased Assets. The Company agrees to and hereby sells,
conveys, transfers, assigns and delivers to Medical Manager
concurrently herewith on the terms and subject to the conditions set
forth in this Agreement, all of its assets, properties and business of
every kind and description, whether real, personal or mixed, tangible
or intangible, wherever located (except those assets of the Company
which are specifically excluded as provided in Section 1.2 hereof) as
exists as of the date hereof (collectively, the "Purchased Assets").
Without limiting the generality of the foregoing, the Purchased Assets
shall include the following:
(a) all of the interests, rights and benefits accruing to
the Company under any sales orders, sales contracts, and other
Contracts (as defined in Section 3.20,) of the Company;
(b) all machinery, equipment, tools, supplies, furniture and
fixtures of the Company set forth on Schedule 1.1(b);
(c) all inventories of the Company set forth on Schedule
1.1(c), including but not limited to, all inventories related to the
Company's work in process;
(d) all work in process, of whatsoever kind or nature of the
Company, including but not limited to, the work in process set forth on
Schedule 1.1(d);
(e) all customer lists, customer files, and financial,
accounting and credit records of the Company's customers and all
computer data and correspondence relating to the Company's customers;
(f) all operating data and records of the Company relating
to the Purchased Assets or Assumed Liabilities;
(g) all of the proprietary rights of the Company;
(h) all Receivables of the Company (as defined in Section
3.25); and
(i) the trade name Medical Information Systems.
1.2 Excluded Assets. Notwithstanding anything to the contrary
set forth in Section 1.1, the Purchased Assets shall exclude the
following assets of the Company: (i) the shares of capital stock of the
Company which are owned and held by the Company as treasury shares;
(ii) the corporate minute books and stock records of the Company; (iii)
all cash of the Company, and (iv) the assets described on Schedule 1.2
(collectively, the "Excluded Assets").
1.3 Assignment of Contracts. Notwithstanding anything in this
Agreement to the contrary, this Agreement shall not constitute an
assignment of any claim, contract, or other right or benefit if an
attempted assignment thereof, without the consent of a third party
thereto, would constitute a breach thereof or in any way adversely
affect the rights of Medical Manager thereunder. If any attempt at an
assignment thereof would be ineffective so that Medical Manager would
not in fact receive all such rights, the Company shall cooperate with
Medical Manager to the extent necessary to provide for Medical Manager
the benefits under such claim, contract, or other right or benefit.
1.4 Purchase Price.
(a) As consideration for the Purchased Assets, Medical
Manager agrees on the terms and subject to the conditions and
limitations set forth herein, to pay to the Company an aggregate amount
equal to Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00),
plus an amount equal to the value of Net Assets (as defined below) as
of the date hereof (the "Purchase Price"). For purposes of determining
the Purchase Price, (i) "Net Assets" shall mean the amount equal to the
value of the Total Assets of the Company minus the amount equal to the
value of the Total Liabilities of the Company; (ii) "Total Assets"
shall mean all assets of the Company other than Excluded Assets
determined in accordance with GAAP; (iii) "Total Liabilities" shall
mean all liabilities of the Company other than Excluded Liabilities,
determined in accordance with GAAP.
(b) Payment of the Purchase Price shall be made in cash, by
wire transfer of immediately available funds, provided however, Medical
Manager shall set aside and hold, in accordance with Article 5 an
amount equal to ten (10%) percent of the Purchase Price (the "Held-Back
Funds").
(c) In the event the parties cannot agree upon the value of
the Net Assets as of the date hereof within fifteen (15) days after the
date hereof, Medical Manager shall prepare and deliver to the Company
a determination (the "Determination") of the amount of Net Assets as of
the date hereof including the basis for such Determination set forth in
reasonable detail, in accordance with GAAP, and Medical Manager shall
pay such amount to the Company. If, within thirty (30) days after the
date on which a Determination is delivered to the Company, the Company
shall not have given written notice to Medical Manager setting forth in
reasonable detail any objection of the Company to such Determination,
then such Determination shall be final and binding upon the parties
hereto. In the event the Company gives written notice of any objection
to such Determination within such 30-day period, Medical Manager and
the Company shall use all reasonable efforts to resolve the dispute
within thirty (30) business days following the receipt by Medical
Manager of the written notice from the Company. If the parties are
unable to reach an agreement within such thirty (30)-day period, the
matter shall be submitted to a mutually agreed upon "big five"
certified public accounting firm for final determination of the amount
of Net Assets (the "Final Determination") to be made within
twenty (20) days after submission, which determination shall be final
and binding upon Medical Manager and the Company. Medical Manager and
the Company shall contribute equally to all costs (including fees and
expenses charged by the selected firm of certified public accountants)
in connection with the resolution of any such disputes. If the Final
Determination is less than the Determination then such difference shall
be deemed to be Indemnifiable Damages under Article V hereof and
Medical Manager may set off against and recoup from the Held-Back Funds
the difference between the Final Determination and the Determination or
take any other action or exercise any other remedy available to it by
appropriate legal proceedings to recover such amount. If the Final
Determination is greater than the Determination, Medical Manager shall
pay the difference to the Company within three (3) business days of the
Final Determination.
1.5 Assumed Liabilities. Medical Manager hereby agrees to
assume, pay, discharge and perform, when lawfully required, all of the
obligations, duties and liabilities of the Company set forth on
Schedule 1.5 including those obligations arising under the Contracts
set forth on Schedule 3.20 (to the extent such obligations do not arise
from any breach of such Contracts) (the "Assumed Liabilities").
Notwithstanding the inclusion of any other liability or obligation on
the other schedules to this Agreement, the only liabilities, duties, or
obligations assumed by Medical Manager are those disclosed on Schedule
1.5.
1.6 Excluded Liabilities. Except for the Assumed Liabilities,
the parties expressly agree that Medical Manager shall not assume or
otherwise become liable for any other obligation or liability of the
Company (such liabilities collectively, the "Excluded Liabilities").
1.7 No Expansion of Third-Party Rights. The assumption by
Medical Manager of the Assumed Liabilities, the transfer thereof by the
Company, and the limitations of such transfer shall in no way expand
the rights or remedies of any third party against Medical Manager or
the Company as compared to the rights and remedies which such third
party would have had against the Company had Medical Manager not
assumed such liabilities. Without limiting the generality of the
preceding sentence, the assumption by Medical Manager of the Assumed
Liabilities shall not create any third-party beneficiary rights.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF MEDICAL MANAGER
As a material inducement to the Company and the Shareholder to
enter into this Agreement and to consummate the transactions
contemplated hereby, Medical Manager makes the following
representations and warranties to the Company and the Shareholder:
2.1 Corporate Status. Medical Manager is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Florida and has the requisite power and authority to own or
lease its properties and to carry on its business as presently
conducted.
2.2 Corporate Power and Authority. Medical Manager has the
corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. Medical Manager has taken all corporate action
necessary to authorize its execution and delivery of this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby.
2.3 Enforceability. This Agreement has been duly executed and
delivered by Medical Manager, and constitutes a legal, valid and
binding obligation of Medical Manager, enforceable against Medical
Manager in accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in equity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE SHAREHOLDER
As a material inducement to Medical Manager to enter into this
Agreement and to consummate the transactions contemplated hereby, the
Company and the Shareholder, jointly and severally, make the following
representations and warranties to Medical Manager:
3.1 Corporate Status. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Florida and has the requisite power and authority to own or
lease its properties and to carry on its business as now being
conducted. There is no pending or threatened proceeding for the
dissolution, liquidation, insolvency or rehabilitation of the Company.
The Company does not own, directly or indirectly, any outstanding
voting securities of or other interests in, or have any control over,
any other corporation, partnership, joint venture or other business
entity.
3.2 Corporate Power and Authority. The Company has the corporate
power and authority to, and has taken all corporate action necessary
to, execute and deliver this Agreement, to perform its respective
obligations hereunder and to consummate the transactions contemplated
hereby. The Shareholder has the requisite competence and authority to
execute and deliver this Agreement, to perform its respective
obligations hereunder and to consummate the transactions contemplated
hereby.
3.3 Enforceability. This Agreement has been duly executed and
delivered by the Company and the Shareholder, and constitutes a legal,
valid and binding obligation of each of them, enforceable against each
of them in accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in equity.
3.4 Shareholder of the Company. The Shareholder constitutes the
sole record and beneficial holder of all issued and outstanding shares
of capital stock of the Company.
3.5 No Violation; Consents and Approvals. Except for any
approvals or consents required under Contracts (as defined in Section
3.20), identified in Schedule 3.20 as requiring the consent of third
parties, the execution and delivery of this Agreement by the Company
and the Shareholder, the performance by the Company and the Shareholder
of their respective obligations hereunder and the consummation by them
of the transactions contemplated by this Agreement will not (a)
contravene any provision of the Articles of Incorporation or Bylaws of
the Company, (b) violate or conflict with any law, statute, ordinance,
rule, regulation, decree, writ, injunction, judgment or order of any
Governmental Authority, or of any arbitration award which is either
applicable to, binding upon or enforceable against the Company or the
Shareholder, (c) conflict with, result in any breach of, or constitute
a default (or an event which would, with the passage of time or the
giving of notice or both, constitute a default) under, or give rise to
a right of payment or right to terminate, amend, modify, abandon or
accelerate, any Contract which is applicable to, binding upon or
enforceable against the Company or the Shareholder, (d) result in or
require the creation or imposition of any Lien upon or with respect to
any of the properties or assets of the Company, (e) give to any
individual or entity a right or claim against the Company or the
Shareholder or (f) require the consent, approval, authorization or
permit of, or filing with or notification to, any Governmental
Authority, any court or tribunal or any other Person, except any
applicable filings required pursuant to the Exchange Act or by the
National Association of Securities Dealers or the SEC.
3.6 Financial Statements. The Shareholder has delivered to
Medical Manager the financial statements of the Company for the fiscal
years ended June 30, 1997, and June 30, 1998, including the notes
thereto (the "Year End Financial Statements"), and the unaudited
financial statements of the Company for the interim period ending
May 31, 1999, including the notes thereto (the "Interim Financial
Statements") (the Interim Financial Statements, together with the Year
End Financial Statements are hereafter referred to as, the "Financial
Statements"), copies of which are attached as Schedule 3.6 hereto. The
balance sheet of the Company dated as of most recent month-end close
prior to the date of this Agreement, included in the Financial
Statements, is referred to herein as the "Current Balance Sheet." The
Financial Statements fairly present the financial position of the
Company at each of the balance sheet dates and the results of
operations for the periods covered thereby, and have been prepared in
accordance with GAAP consistently applied throughout the periods
indicated. The books and records of the Company fully and fairly
reflect all of its transactions, properties, assets and liabilities
except as set forth on Schedule 3.6. There are no material special or
non-recurring items of income or expense during the periods covered by
the Financial Statements, and the balance sheets included in the
Financial Statements do not reflect any writeup or revaluation
increasing the book value of any assets, except as specifically
disclosed in the notes thereto. The Financial Statements reflect all
adjustments necessary for a fair presentation of the financial
information contained therein.
3.7 Changes Since the Current Balance Sheet Date. Except as
contemplated by this Agreement, since the date of its Current Balance
Sheet included in the Financial Statements, the Company has not: (a)
declared, set aside, made or paid any dividend or other distribution
payable in cash, stock, property or otherwise of or with respect to its
capital stock, or other securities, or reclassified, combined, split,
subdivided or redeemed, purchased or otherwise acquired, directly or
indirectly, any of its capital stock, or other securities; (b) paid any
bonus to or increased the rate of compensation of any of its officers,
partners, or employees, or amended any other terms of employment or
engagement of such persons; (c) sold, leased or transferred any of its
properties or assets or acquired any properties or assets other than in
the ordinary course of business consistent with past practice; (d)
made, or obligated itself to make, any capital expenditures; (e) made
any payment in respect of its liabilities other than in the ordinary
course of business consistent with past practice; (f) except in the
ordinary course of business, incurred any obligations or liabilities
(including, without limitation, any indebtedness for borrowed money,
issuance of any debt securities, or the assumption, guarantee, or
endorsement of the obligations of any Person); (g) suffered any theft,
damage, destruction or casualty loss not covered by insurance in excess
of $10,000 in the aggregate, and in excess of $50,000 in the aggregate
if covered by insurance; (h) suffered any extraordinary losses (whether
or not covered by insurance); (i) waived, canceled, compromised or
released any rights having a value in excess of $10,000 in the
aggregate; (j) made or adopted any change in its accounting practice or
policies; (k) made any adjustment to its books and records other than
in respect of the conduct of its business activities in the ordinary
course consistent with past practice; (l) entered into any transaction
with the Shareholder or any Affiliate of the Company or the
Shareholder; (m) entered into any employment agreement that is not
terminable at will without any liability or obligation; (n) terminated,
amended or modified any agreement involving an amount in excess of
$10,000 in the aggregate; (o) imposed any security interest or other
Lien on any of its assets; (p) delayed paying any account payable or
other obligation beyond the date on which it is due and payable, except
to the extent being contested in good faith; (q) made or pledged any
charitable contributions; (r) acquired (including, without limitation,
for cash or shares of stock, by merger, consolidation, or acquisition
of stock or assets) any interest in any corporation, partnership or
other business organization or division thereof or any assets, or made
any investment either by purchase of stock or securities, contributions
or property transfer of capital; (s) increased or decreased prices
charged to customers, or taken any actions which might reasonably
result in any material loss of customers; (t) entered into any other
transaction or been subject to any event which has or may reasonably be
expected to have a Material Adverse Effect on the Company; or (u)
agreed to do or authorized any of the foregoing.
3.8 Liabilities of the Company. The Company does not have any
liabilities or obligations, whether accrued, absolute, contingent or
otherwise, except (a) to the extent reflected or taken into account in
the Current Balance Sheet and not heretofore paid or discharged, (b)
liabilities incurred in the ordinary course of business consistent with
past practice since the date of the Current Balance Sheet (none of
which relates to breach of contract, breach of warranty, tort,
infringement or violation of law, or which arose out of any action,
suit, claim, governmental investigation or arbitration proceeding), and
(c) liabilities incurred in the ordinary course of business prior to
the date of the Current Balance Sheet which, in accordance with GAAP
consistently applied, were not recorded on the Current Balance Sheet.
3.9 Litigation. There is no action, suit or other legal or
administrative proceeding or governmental investigation pending,
threatened, anticipated or contemplated against, by or affecting the
Company or the Company's properties or assets, or which questions the
validity or enforceability of this Agreement or the transactions
contemplated hereby, and, to the knowledge of the Company and the
Shareholder, there is no basis for any of the foregoing. There are no
outstanding orders, decrees or stipulations issued by any Governmental
Authority in any proceeding to which the Company is or was a party
which have not been complied with in full or which continue to impose
any material obligations on the Company.
3.10 Real Estate.
(a) The Company is a party to a lease, on a month-to-month
basis, for the premises located at 000 X Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx (the "Leased Premises"). The Company is not a party to any
other lease, license or other agreement for the use or occupancy of
real estate.
(b) The Company owns no real property or any interest
therein, including, without limitation, any option or other right or
obligation to purchase any real property or any interest therein other
than its interest in the Leased Premises.
3.11 Good Title to and Condition of Assets; Inventory. The
Company has good and marketable title to all of the Purchased Assets
free and clear of any Liens. The Purchased Assets are in good
operating condition, normal wear and tear excepted, and have been
maintained substantially in accordance with all applicable
manufacturer's specifications and warranties. The inventories of the
Company are carried on the Interim Financial Statements of the Company
and have been accounted for in accordance with generally accepted
accounting principles. All such inventories are in good and marketable
condition and suitable for sale to the Company's customers in the
regular course of business at currently prevailing market prices.
3.12 Compliance with Laws. Each of the Company and the Shareholder
(with respect to the Company) is and has been in compliance with all
laws, regulations and orders applicable to it, its business and
operations (as conducted by it now and in the past), the Purchased
Assets, and the Leased Premises and any other properties and assets (in
each case owned or used by it now or in the past). The Company has not
been cited, fined or otherwise notified of any asserted past or present
failure to comply with any laws, regulations or orders and no
proceeding with respect to any such violation is pending or threatened.
The Company is not subject to any Contract, decree or injunction to
which it is a party which restricts the continued operation of any
business or the expansion thereof to other geographical areas,
customers and suppliers or lines of business.
3.13 Labor and Employment Matters. Schedule 3.13 sets forth a
list of all current employees of the Company, along with their Social
Security numbers, current rate of pay and accrued vacation (segregated
on a yearly basis). The Company is not a party to or bound by any
collective bargaining agreement or any other agreement with a labor
union, and there has been no effort by any labor union during the 24
months prior to the date hereof to organize any employees of the
Company into one or more collective bargaining units.
3.14 Employee Benefit Plans.
(a) Employee Benefit Plans. The Company has no employee
benefit plans or arrangements, including but not limited to employee
pension benefit plans, as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
multiemployer plans, as defined in Section 3(37) of ERISA, employee
welfare benefit plans, as defined in Section 3(1) of ERISA, deferred
compensation plans, stock option plans, bonus plans, stock purchase
plans, hospitalization, disability and other insurance plans, severance
or termination pay plans and policies, whether or not described in
Section 3(3) of ERISA, in which employees, their spouses or dependents,
of the Company participate ("Employee Benefit Plans").
(b) Controlled Group Liability. Neither the Company, nor
any entity that would be aggregated with it under Code Section 414(b),
(c), (m) or (o): (i) has ever terminated or withdrawn from an employee
benefit plan under circumstances resulting (or expected to result) in
liability to the Pension Benefit Guaranty Corporation ("PBGC"), the
fund by which the employee benefit plan is funded, or any employee or
beneficiary for whose benefit the plan is or was maintained (other than
routine claims for benefits); (ii) has any assets subject to (or
expected to be subject to) a lien for unpaid contributions to any
employee benefit plan; (iii) has failed to pay premiums to the PBGC
when due; (iv) is subject to (or expected to be subject to) an excise
tax under Code Section 4971; (v) has engaged in any transaction which
would give rise to liability under Section 4069 or Section 4212(c) of
ERISA; or (vi) has violated Code Section 4980B or Section 601 through
608 of ERISA.
(c) Other Liabilities. (i) The Company is not under any
obligation to pay separation, severance, termination or similar
benefits solely as a result of any transaction contemplated by this
Agreement or solely as a result of a "change of control" (as such term
is defined in Section 280G of the Code) and (ii) all required or
discretionary (in accordance with historical practices) payments,
premiums, contributions, reimbursements, or accruals for all periods
ending prior to or as of the date hereof shall have been made or
properly accrued on the Current Balance Sheet or will be properly
accrued on the books and records of the Company as of the date hereof.
(d) The Company has complied with the notice and
continuation of coverage requirements of Section 4980B of the Code, and
the regulations thereunder, and Part 6 of Title I of ERISA ("COBRA")
and has complied with the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA") with respect to any group health
plan within the meaning of Section 5000(b)(1) of the Code.
3.15 Tax Matters. All Tax Returns required to be filed prior to
the date hereof with respect to the Company or any of its income,
properties, franchises or operations have been filed, and, to the
knowledge of the Company and the Shareholder, each such Tax Return has
been prepared in compliance with all applicable laws and regulations,
and all such Tax Returns are true and accurate in all respects. All
Taxes due and payable by or with respect to the Company have been, or
will be, timely paid by the Company.
3.16 Insurance. The Company is covered by valid, outstanding and
enforceable policies of insurance covering its properties, assets and
businesses (the "Insurance Policies"). The Company has not failed to
give, in a timely manner, any notice required under any of the
Insurance Policies to preserve its rights thereunder.
3.17 Licenses and Permits. The Company possesses all licenses,
approvals, permits or authorizations from Governmental Authorities
(collectively, the "Permits") for its business and operations.
3.18 Adequacy of the Assets; Relationships with Customers and
Suppliers; Affiliated Transactions. The Purchased Assets and Leased
Premises constitute, in the aggregate, all of the assets and properties
materially necessary for the conduct of the business of the Company in
the manner in which and to the extent to which such business is
currently being conducted. Except as set forth on Schedule 3.18,
neither the Company nor the Shareholder have any direct or indirect
interest in any customer, supplier or competitor of the Company, or in
any person from whom or to whom the Company leases real or personal
property. Except as set forth on Schedule 3.18, no officer, director
or shareholder of the Company, nor any person related by blood or
marriage to any such person, nor any entity in which any such person
owns any beneficial interest, is a party to any Contract or transaction
with the Company or has any interest in any property used by the
Company.
3.19 Intellectual Property. The Company has full and unrestricted
legal right, title and interest in and to all trademarks, service
marks, trade names, copyrights, know-how, patents, trade secrets,
licenses (including licenses for the use of computer software
programs), and other intellectual property used in the conduct of its
business (the "Intellectual Property").
3.20 Contracts. Schedule 3.20 sets forth a list of each contract
(including any amendments and modifications thereto, whether written or
oral), of whatsoever kind or nature, to which the Company is a party or
by which the Company is bound (the "Contracts"), copies of which (or,
with respect to oral Contracts, written summaries of the material terms
of which) have been provided to Medical Manager. Except as specifically
identified on Schedule 3.20, none of the Contracts require the consents
or approval of third parties to the transactions contemplated hereby.
The copy of each Contract furnished to Medical Manager is a true,
correct and complete copy of the document it purports to represent and
reflects all amendments thereto made through the date of this
Agreement. The Company has not violated any of the material terms or
conditions of any Contract or any term or condition which would permit
termination or modification of any Contract, all of the covenants to be
performed by any other party thereto, to the extent performance is
required, have been fully performed to date, and there are no claims
for breach or indemnification or notice of default or termination under
any Contract. No event has occurred which constitutes, or after notice
or the passage of time, or both, would constitute, a default by the
Company or any other party under any Contract. The Company is not
subject to any liability or payment obligation resulting from
renegotiation of amounts paid under any Contract.
3.21 No Commissions. Neither the Company nor the Shareholder have
incurred any obligation for any finder's or broker's or agent's fees or
commissions or similar compensation in connection with the transactions
contemplated hereby.
3.22 Accuracy of Information Furnished. No representation,
statement or information made or provided by the Company and/or the
Shareholder contained in this Agreement (including, without
limitation, the various Schedules attached hereto) or any agreement
executed in connection herewith or in any certificate delivered
pursuant hereto or thereto, contains or shall contain any untrue
statement of a material fact or omits or shall omit any material fact
necessary to make the information contained therein not misleading.
The Company has provided Medical Manager with true, accurate and
complete copies of all documents listed or described in the various
Schedules attached hereto.
3.23 Medical Manager Licenses. Every copy of The Medical Manager
software sold by the Company is subject to an existing license between
the Company's customer and Medical Manager or its Affiliates. All
software (including, without limitation, the operating systems and
application software), other than The Medical Manager brand software,
sold or licensed by the Company to end users, or used by the Company,
has been duly licensed by the owner of such software.
3.24 Work In Process. All inventory related to the Company's work
in process is located at the Leased Premises and has been paid in full
by the Company.
3.25 Receivables. All of the Receivables (as hereinafter defined)
are valid and legally binding, represent bona fide transactions and
arose in the ordinary course of business of the Company. All of the
Receivables are good and collectible receivables, and will be collected
in full in accordance with the terms of such receivables (and in any
event within three (3) months following the Closing), without setoff or
counterclaims, subject to the allowance for doubtful accounts, if any,
set forth on the Current Balance Sheet, as reasonably adjusted since
the date of the Current Balance Sheet in the ordinary course of
business consistent with past practice. For purposes of this
Agreement, the term "Receivables" means all receivables of the Company
[(except as provided under Section 1.2)], including all trade account
receivables arising from the provision of services, sale of inventory,
notes receivable, and insurance proceeds receivable.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry
out and comply with all of the terms of this Agreement and the
transactions contemplated hereby, including, but not limited to, all
such further deeds, bills of sale, assignments, transfers, conveyances,
powers of attorney and assurances as may be required or appropriate to
convey and transfer to and vest in Medical Manager and protect its
right, title and interest in all of the Purchased Assets.
4.2 Compliance with Covenants. The Shareholder shall use its
reasonable efforts to cause the Company to comply with all of the
covenants of the Company under this Agreement.
4.3 Confidentiality; Publicity. Except as may be required by law
or as otherwise permitted or expressly contemplated herein, no party
hereto or their respective Affiliates, employees, agents and
representatives shall disclose to any third party to this Agreement,
the subject matter or terms hereof or any confidential information or
other proprietary knowledge concerning the business or affairs of the
other party which it may have acquired from such party in the course of
pursuing the transactions contemplated by this Agreement without the
prior consent of the other party hereto; provided, that any information
that is otherwise publicly available, or has been obtained from a third
party, without breach of this provision, shall not be deemed
confidential information. No press release or other public
announcement related to this Agreement or the transactions contemplated
hereby shall be issued by either party hereto without the prior
approval of the other party; provided that after consultation with the
other party, each party may make such public disclosure which it
believes in good faith to be required by law or by the terms of any
listing agreement with or requirements of the National Association of
Securities Dealers.
4.4 Restrictive Covenant. In order to assure that Medical
Manager will realize the benefits of this transaction, the Company and
the Shareholder agree with Medical Manager that neither will:
(a) for a period of two (2) years from the date hereof,
directly or indirectly, alone or as a partner, joint venturer, officer,
director, member, employee, consultant, agent, independent contractor
or shareholder of, or lender to, any company or business, engage in any
Competitive Activity in the State of Florida. As used herein
"Competitive Activity" shall consist of the sale, solicitation for
sale, marketing, licensing, servicing, distributing of, or other
business activity of whatsoever kind or nature relating to, any
software or products and services related thereto, and all
improvements, enhancements and versions thereof, provided however,
subject to Section 4.4(b)(iv), that the sale, marketing, distribution
and licensing of medical records software to medical practices as well
as the dissemination of medical information to consumers and
physicians, all of which are products of the Shareholder and its
subsidiaries, including all improvements, enhancements and versions
thereof, shall not be deemed a Competitive Activity or to violate the
prohibitions of this Section;
(b) for a period of two (2) years from the date hereof,
directly or indirectly (i) induce any Person which is a customer of
Medical Manager or any Affiliate of Medical Manager to patronize any
business directly or indirectly engaged in any Competitive Activity;
(ii) canvass, solicit or accept from any Person which is a customer of
Medical Manager or any Affiliate of Medical Manager any Competitive
Activity; (iii) request or advise any Person which is a customer or
supplier of Medical Manager or any Affiliate of Medical Manager to
withdraw, curtail or cancel any such customer's or supplier's business
with Medical Manager or any Affiliate of Medical Manager, or its or
their successors; or, (iv) solicit, in any manner, directly or
indirectly, any customers of the Company as of the date hereof;
(c) for a period of two (2) years from the date hereof,
directly or indirectly employ, or knowingly permit any company or
business directly or indirectly controlled by it to employ, any person
who was employed by Medical Manager or any Affiliate of Medical Manager
at or within the six month period immediately preceding the date of
such employment, or in any manner seek to induce any such person to
leave his or her employment;
(d) at any time following the date hereof, directly or
indirectly, in any way utilize, disclose, copy, reproduce or retain in
his possession Medical Manager's or any Medical Manager Affiliates'
proprietary rights or records, including, but not limited to, any of
its or their customer lists.
The Company and the Shareholder agree and acknowledge that the
restrictions contained in this Section 4.4 are reasonable in scope and
duration and are necessary to protect Medical Manager after the date
hereof. If any provision of this Section 4.4 as applied to any party
or to any circumstance is adjudged by a court to be invalid or
unenforceable, the same will in no way affect any other circumstance or
the validity or enforceability of this Agreement. If any such
provision, or any part thereof, is held to be unenforceable because of
the duration of such provision or the area covered thereby, the parties
agree that the court making such determination shall have the power to
reduce the duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form, such provision
shall then be enforceable and shall be enforced. The parties agree and
acknowledge that the breach of this Section 4.4 will cause irreparable
damage to Medical Manager and upon breach of any provision of this
Section 4.4, Medical Manager shall be entitled to injunctive relief,
specific performance or other equitable relief; provided, however,
that, this shall in no way limit any other remedies which Medical
Manager may have (including, without limitation, the right to seek
monetary damages).
4.5 Delivery of Property Received by the Company After Closing.
From and after the date hereof, Medical Manager shall have the right
and authority to collect, for the account of Medical Manager, all items
which shall be transferred or are intended to be transferred to Medical
Manager as part of the Purchased Assets as provided in this Agreement,
and to endorse with the name of the Company any checks or drafts
received on account of any such items of the Purchased Assets. The
Company and the Shareholder agree that they will transfer or deliver to
Medical Manager, promptly after the receipt thereof, any cash or other
property which the Company and the Shareholder receive after the date
hereof in respect of any claims, contracts, licenses, leases,
commitments, sales orders, purchase orders, receivables generated after
the date hereof of any character or any other items transferred or
intended to be transferred to Medical Manager as part of the Purchased
Assets under this Agreement.
4.6 Tax Matters.
(a) Tax Returns. The Company shall duly prepare, or cause
to be prepared, and file, or cause to be filed, and pay or cause to be
paid, on a timely basis, all Tax Returns and taxes due for or by the
Company for any period ending on or before the date hereof. The
Company shall prepare and provide Medical Manager with a copy of such
returns within 90 days of the date hereof or by the due date of the
return, whichever is sooner. The Company shall not file any amended
Tax Returns with respect to the Company without the prior written
consent of Medical Manager.
(b) Tax Cooperation. Each party shall provide the other
party with such information and records and access to such of its
officers, directors, employees and agents as may be reasonably required
by the other party in connection with the preparation of any tax return
or any audit or other proceeding relating to the Company.
4.7 Medical Manager Appointed Attorney for the Company. The
Company hereby constitutes and appoints Medical Manager, and Medical
Manager's successors and assigns, its true and lawful attorney, in the
name of either Medical Manager or the Company (as Medical Manager shall
determine in its sole discretion) but for the benefit and at the sole
expense of Medical Manager (except as otherwise herein provided), (a)
to institute and prosecute all proceedings which Medical Manager may
deem proper in order to collect, assert or enforce any claim, right or
title of any kind in or to the Purchased Assets as provided for in this
Agreement; (b) to defend or compromise any and all actions, suits or
proceedings in respect of any of the Purchased Assets, and to do all
such acts and things in relation thereto as Medical Manager shall deem
advisable; and (c) to take all action which Medical Manager may
reasonably deem proper in order to provide for Medical Manager the
benefits under any of the Purchased Assets where any required consent
of another party to the sale or assignment thereof to Medical Manager
pursuant to this Agreement shall not have been obtained. The Company
acknowledges that the foregoing powers are coupled with an interest and
shall be irrevocable. Medical Manager shall be entitled to retain for
its own account any amounts collected pursuant to the foregoing powers,
including any amounts payable as interest in respect thereof.
4.8 Release by Shareholder. The Shareholder does hereby, for
itself and for its subsidiaries, affiliates, officers, directors,
trustees, shareholders, agents, representatives, employees,
consultants, attorneys, accountants, successors and assigns
(collectively, the "Releasors") release, remise and forever discharge
Medical Manager and its subsidiaries, affiliates, officers, directors,
trustees, shareholders, agents, representatives, employees,
consultants, attorneys, accountants, successors and assigns
(collectively, the "Releasees"), from any and all debts, sums of money,
accounts, claims, actions, causes of action, suits, damages, judgments,
losses, contracts, demands, expenses (including attorneys' fees and
costs) and/or liabilities of any kind which any of the Releasors ever
had, now have or which they can, shall or may have for, upon or by
reason of any matter, cause or thing whatsoever, from the beginning of
the world to the day of this Agreement, against the Releasees (the
"Release"). Notwithstanding anything contained herein to the contrary,
this Release shall not apply to any obligations, commitments or
liabilities arising out of and/or relating to the performance by the
Releasees pursuant to this Agreement.
4.9 Release by Medical Manager. Medical Manager does hereby,
for itself and its subsidiaries, affiliates, officers, directors,
trustees, agents, representatives, employees, consultants, attorneys,
accountants, successors and assigns (collectively, the "Releasors")
release, remise and forever discharge the Shareholder, for itself and
for its subsidiaries (including the Company), its and their,
affiliates, officers, directors, trustees, shareholders, agents,
representatives, employees, consultants, attorneys, accountants,
successors and assigns (collectively, the "Releasees"), from any and
all debts, sums of money, accounts, claims, actions, causes of action,
suits, damages, judgments, losses, contracts, demands, expenses
(including attorneys' fees and costs) and/or liabilities of any kind
which any of the Releasors ever had, now have or which they can, shall
or may have for, upon or by reason of any matter, cause or thing
whatsoever, from the beginning of the world to the day of this
Agreement, against the Releasees (the "Release"). Notwithstanding
anything contained herein to the contrary, this Release shall not apply
to any obligations, commitments or liabilities arising out of and/or
relating to the performance by the Releasees pursuant to this Agreement
or any outstanding invoiced amounts of the Shareholder or the Company
to Medical Manager and/or its affiliates.
ARTICLE V
INDEMNIFICATION
5.1 Agreement by the Company and the Shareholder for
Indemnification. The Company and the Shareholder jointly and severally
agree to indemnify and hold Medical Manager and its stockholders,
directors, officers, employees, attorneys and Affiliates harmless from
and against, and, at Medical Manager's election, in its sole
discretion, Medical Manager shall be entitled to recover by set off
against the Held Back Funds in accordance with Section 5.3, the
aggregate of all expenses, losses, costs, deficiencies, liabilities and
damages (including, without limitation, related reasonable counsel and
paralegal fees and expenses) incurred or suffered by Medical Manager
arising out of or resulting from any (i) breach of a representation or
warranty made by the Company or the Shareholder in or pursuant to this
Agreement, (ii) breach of the covenants or agreements made by the
Company or the Shareholder in or pursuant to this Agreement or (iii)
any Excluded Liabilities which Medical Manager is required to pay (iv)
transfer taxes that may be due and owing by Company to any Governmental
Authority in connection with this transaction, (v) liability or
obligation of the Company or the Shareholder to (a) any party claiming
to have a right to acquire any shares of capital stock or other
securities convertible into or exchangeable for any shares of capital
stock of the Company or, (b) any prior shareholder of the Company, and
(vi) obligation of the Company related to Taxes (collectively,
"Indemnifiable Damages"). Without limiting the generality of the
foregoing, with respect to the measurement of Indemnifiable Damages,
Medical Manager shall have the right to be put in the same pre-tax
consolidated financial position as it would have been in had each of
the representations and warranties of the Company and the Shareholder
hereunder been true and correct and had the agreements of the Company
and the Shareholder hereunder been performed in full.
5.2 Agreement by Medical Manager for Indemnification. Medical
Manager agrees to indemnify and hold the Company and the Shareholder
(for purposes of this Section 5.2 only ("Indemnitees")) harmless from
and against the aggregate of all expenses, losses, costs, deficiencies,
liabilities and damages (including, without limitation, related counsel
and paralegal fees and expenses) incurred or suffered by the
Indemnitees arising out of or resulting from (i) any breach of a
representation or warranty made by Medical Manager in or pursuant to
this Agreement, (ii) any breach of the covenants or agreements made by
Medical Manager in or pursuant to this Agreement, (iii) any inaccuracy
in any certificate, instrument or other document delivered by Medical
Manager as required by this Agreement, (iv) any Assumed Liabilities
which the Indemnitees are required to pay, and (v) any violation of the
rules and regulations promulgated by the Securities and Exchange
Commission (collectively, "Indemnifiable Damages").
5.3 Survival of Representations and Warranties. Each of the
representations and warranties made by the parties to this Agreement or
pursuant hereto shall survive for a period of one year after the date
hereof. No claim for the recovery of Indemnifiable Damages may be
asserted by any party after such representations and warranties shall
thus expire; provided, however, that claims for Indemnifiable Damages
first asserted within the applicable period shall not thereafter be
barred. Notwithstanding any knowledge of facts determined or
determinable by any party by investigation, each party shall have the
right to fully rely on the representations, warranties, covenants and
agreements of the other parties hereto contained in this Agreement or
in any other documents or papers delivered in connection herewith.
Each representation, warranty, covenant and agreement contained in this
Agreement is independent of each other representation, warranty,
covenant and agreement.
5.4 Security for Indemnification Obligation. As security for the
indemnification obligations contained in this Article V, Medical
Manager shall hereby set aside and hold, and the Company and the
Shareholder hereby grant a security interest in the Held Back Funds.
Medical Manager may set off against the Held Back Funds the
Indemnifiable Damages for which the Company or the Shareholder may be
responsible pursuant to this Agreement subject, however, to the
following terms and conditions:
(a) Medical Manager shall give written notice to the Company
of any claim for Indemnifiable Damages which notice shall set forth (i)
the amount of Indemnifiable Damages which Medical Manager claims to
have sustained by reason thereof, and (ii) the basis of such claim;
(b) Such set off shall be effected on the later to occur on
the expiration of 10 days from the date of such notice (the "Notice of
Contest Period") or, if such claim is contested, the date the dispute
is resolved, and such set off shall be charged proportionally against
the Held Back Funds;
5.5 Delivery of Held Back Funds. Medical Manager agrees to
deliver to the Company no later than one year after the date hereof any
Held Back Funds then held by it unless there then remains unresolved
any claim for Indemnifiable Damages as to which notice has been timely
given, in which event Medical Manager shall be entitled to retain such
amount of the Held Back Funds as is sufficient to satisfy any such
unresolved claim as well as the reasonable attorneys fees and costs
associated therewith, and shall release the remaining Held Back Funds.
Any Held Back Funds remaining on deposit after all such claims shall
have been satisfied shall be returned to the Company promptly after the
time of satisfaction.
5.6 Adjustment to Purchase Price. All payments for Indemnifiable
Damages made pursuant to this Article V shall be treated as adjustments
to the Purchase Price.
5.7 No Bar. If the Held Back Funds are insufficient to set off
any claim for Indemnifiable Damages made hereunder (or have been
delivered to the Company prior to the making or resolution of such
claim), then Medical Manager may take any action or exercise any remedy
available to it by appropriate legal proceedings to collect the
Indemnifiable Damages.
5.8 Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude Medical Manager from asserting any
other right, or seeking any other remedies against the Shareholder or
the Company.
ARTICLE VI
DEFINITIONS
6.1 Defined Terms. As used herein, the following terms shall
have the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as in effect
on the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contract" means any agreement, contract, lease, note, mortgage,
indenture, loan agreement, franchise agreement, covenant, employment
agreement, license, instrument, purchase and sales order, commitment,
undertaking, obligation, whether written or oral, express or implied.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time.
"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof, and any
entity or official exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, but not limited to, any
conditional sale or other title retention agreement, any lease in the
nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in connection with such mortgage, pledge, security
interest, encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change (or effect),
in the condition (financial or otherwise), properties, assets,
prospects, liabilities, rights, obligations, operations, or business
which change (or effect) individually or in the aggregate, is
materially adverse to such condition, properties, assets, liabilities,
rights, obligations, operations, or business.
"Person" means an individual, partnership, corporation, business
trust, joint stock Company, estate, trust, unincorporated association,
joint venture, Governmental Authority or other entity, of whatever
nature.
"Register", "registered" and "registration" refer to a
registration of the offering and sale of securities effected by
preparing and filing a registration statement in compliance with the
Securities Act and the declaration or ordering of the effectiveness of
such registration statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Tax Return" means any tax return, filing or information statement
required to be filed in connection with or with respect to any Tax.
"Taxes" means all taxes, fees or other assessments, including, but
not limited to, income, excise, property, sales, franchise, intangible,
payroll, withholding, social security and unemployment taxes imposed by
any federal, state, local or foreign governmental agency, and any
interest or penalties related thereto.
6.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificates, reports or other
documents made or delivered pursuant hereto or thereto, unless the
context otherwise requires.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection with
this Agreement and the transactions contemplated hereby shall be
determined in accordance with GAAP applied on a basis consistent with
prior periods, where applicable.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
ARTICLE VII
GENERAL PROVISIONS
7.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission if such transmission is
confirmed by delivery by certified or registered mail (first class
postage pre-paid) or guaranteed overnight delivery, to the following
addresses and telecopy numbers (or to such other addresses or telecopy
numbers which such party shall designate in writing to the other
party):
if to Medical Manager to:
Xxxxxxxx X. Xxxxxxx, Esquire
Medical Manager Corporation
0000 X Xxxxx Xxxxx Xxxxx Xxxx,
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Facsimile Number (000) 000-0000
if to the Company to:
Xxxxxx X. Xxxxxx, President
OCG Technology, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number (000) 000-0000
7.2 Entire Agreement. This Agreement (including the Schedules
attached hereto) and other documents delivered concurrently herewith,
contains the entire understanding of the parties in respect of its
subject matter and supersedes all prior agreements and understandings
(oral or written) between or among the parties with respect to such
subject matter. The Schedules constitute a part hereof as though set
forth in full above.
7.3 Expenses; Sales Tax. Except as otherwise provided herein,
the parties shall pay their own fees and expenses, including their own
counsel fees, incurred in connection with this Agreement or any
transaction contemplated hereby. The parties agree that the Company
shall pay all sales, transfer or similar taxes required to be paid by
reason of the sale by the Company to Medical Manager of the Purchased
Assets pursuant to this Agreement.
7.4 Amendment; Waiver. This Agreement may not be modified,
amended, supplemented, canceled or discharged, except by written
instrument executed by all parties. No failure to exercise, and no
delay in exercising, any right, power or privilege under this Agreement
shall operate as a waiver, nor shall any single or partial exercise of
any right, power or privilege hereunder preclude the exercise of any
other right, power or privilege. No waiver of any breach of any
provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be
implied from any course of dealing between the parties. No extension
of time for performance of any obligations or other acts hereunder or
under any other agreement shall be deemed to be an extension of the
time for performance of any other obligations or any other acts. The
rights and remedies of the parties under this Agreement are in addition
to all other rights and remedies, at law or equity, that they may have
against each other.
7.5 Binding Effect; Assignment. The rights and obligations of
this Agreement shall bind and inure to the benefit of the parties and
their respective successors and assigns. Nothing expressed or implied
herein shall be construed to give any other person any legal or
equitable rights hereunder. Except as expressly provided herein, the
rights and obligations of this Agreement may not be assigned or
delegated by the Company without the prior written consent of Medical
Manager. Medical Manager may assign all or any portion of its rights
hereunder.
7.6 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument.
7.7 Interpretation. When a reference is made in this Agreement
to an article, section, paragraph, clause, schedule or exhibit, such
reference shall be deemed to be to this Agreement unless otherwise
indicated. The headings contained herein and on the Schedules are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement or the Schedules. Whenever the words
"include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." Time
shall be of the essence in this Agreement.
7.8 Governing Law; Interpretation. This Agreement shall be
construed in accordance with and governed for all purposes by the laws
of the State of Florida applicable to contracts executed and to be
wholly performed within such State, without regard to conflict of laws
principles.
7.9 Jurisdiction. Any suit, action or proceeding against the
Company or the Shareholder arising out of, or with respect to, this
Agreement or any judgment entered by any court in respect thereof may
be brought in the courts of Hillsborough County, Florida, or in the
U.S. District Court for the Middle District of Florida, as Medical
Manager (in its sole discretion) may elect, and the Company and the
Shareholder hereby irrevocably accept and consent to the nonexclusive
personal jurisdiction of those courts for the purpose of any suit,
action or proceeding. In addition, each of the Company and the
Shareholder hereby irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating
to this Agreement or any judgment entered by any court in respect
thereof brought in Hillsborough County, Florida, or the U.S. District
Court for the Middle District of Florida, as selected by Medical
Manager, and hereby further irrevocably waives any claim that any suit,
action or proceedings brought in Hillsborough County, Florida, or in
such District Court has been brought in an inconvenient forum.
7.10 Arm's Length Negotiations. Each party herein expressly
represents and warrants to all other parties hereto that (a) before
executing this Agreement, said party has fully informed itself of the
terms, contents, conditions and effects of this Agreement; (b) said
party has relied solely and completely upon its own judgment in
executing this Agreement; (c) said party has had the opportunity to
seek and has obtained the advice of counsel before executing this
Agreement; (d) said party has acted voluntarily and of its own free
will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and
(f) this Agreement is the result of arm's length negotiations conducted
by and among the parties and their respective counsel.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above
written.
MEDICAL MANAGER SOUTHEAST, INC.,
a Florida corporation
By:/s/ Xxxxxxxx X. Xxxxxxx
------------------------
XXXXXXXX X. XXXXXXX
Vice President/Secretary
XXXXXX XXXXXX ENTERPRISES, INC. d/b/a
MEDICAL INFORMATION SYSTEMS,
a Florida corporation
By:/s/Xxxxxx X. Xxxxxx
--------------------
Name: XXXXXX X. XXXXXX
Title:Chairman of the Board
OCG TECHNOLOGY, INC.,
a Delaware corporation
By:/s/Xxxxxx X. Xxxxxx
--------------------
Name: XXXXXX X. XXXXXX
Title:President
LIST OF SCHEDULES
Schedule 1.1(b) Fixed Assets
Schedule 1.1(c) Inventory
Schedule 1.1(d) Work in Process
Schedule 1.2 Excluded Assets
Schedule 1.5 Assumed Liabilities
Schedule 3.6 Financial Statements
Schedule 3.13 Employees
Schedule 3.18 Affiliated Transactions
Schedule 3.20 Contracts
