EXHIBIT 10.9
AGREEMENT
This AGREEMENT, dated as of the 20th of September, 1996, by and between
Ridgewood Investment Associates ("Ridgewood"), and Xxxxx Xxxxx, Inc. ("VSI"),
WITNESSETH:
WHEREAS, VSI owns the shares of capital stock of Cardiologics LLC,
described in Exhibit A annexed hereto (the "Shares" and desires to sell the
Shares to Ridgewood; and
WHEREAS, Ridgewood desires to purchase the Shares from VSI in accordance
with the terms set forth herein,
NOW, THEREFORE, in consideration of the mutual convenants set forth herein,
the parties hereto hereby agree as follows:
1. Purchase and Sale. At a closing to be held concurrent with the execution
of this Agreement, VSI hereby sells to Ridgewood the Shares as indicated on
Exhibit A annexed hereto for the purchase price of $1,000,000. In addition,
Ridgewood shall reimburse VSI for the amounts described in Section 3.
Concurrently with the execution of this Agreement, Ridgewood hereby delivers to
VSI promissory notes as indicated in Exhibit B in full satisfaction of the
purchase price of the Shares.
2. Ridgewood hereby agrees to assume all commitments, representations and
warranties set forth in the Investment Agreement dated January 19, 1996 between
VSI and Xxxxxx Xxxxxx ("the Agreement") reflecting the understanding between
such parties as to their relationship with respect to Cardiologics LLC.
Ridgewood hereby agrees to indemnify and hold VSI harmless for any and all
liabilities relating to the Agreement.
3. Ridgewood hereby agrees to reimburse VSI for all funds expended by VSI
through the closing date pursuant to the Agreement. Furthermore, Ridgewood
andVSI agree to an orderly transition period whereby the activities of
Cardiologics will be permitted to continue under the relationship with VSI
established in January 1996. Ridgewood agrees to reimburse VSI for all fully
documented expenditures paid by VSI on behalf of Cardiologics beyond the closing
date. VSI and Ridgewood shall mutually agree on the time table for an orderly
transition period.
4. Warranties and Representations. VSI hereby warrants and represents to
Ridgewood that it owns the Shares, and is hereby transferring the Shares, free
and clear of all liens, security interests, pledges, encumbrances and
restrictions whatsoever.
5. Assignment. VSI hereby assigns to Ridgewood, all such rights that VSI
has as a shareholder of Cardiologics LLC, including without limitation, all such
rights that exist pursuant to the Agreement described in Section 2 above. If,
for any reason, such agreements and/or applicable instruments or laws preclude
VSI from transferring record ownership of the Shares, VSI shall use its best
efforts to effect appropriate amendments to any such amendable agreements or
instruments and, in any event, shall confer upon Ridgewood all economic and
other rights and benefits associated with ownership of the Shares.
6. Further Assurances. VSI shall, at its expense, take any and all further
steps as shall be required to effect the transfer of the Shares in the manner
contemplated by this Agreement.
In WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
/s/ Xxxxxxx X. Xxxx
_________________________
Xxxxxxx X. Xxxx, President
Xxxxx Xxxxx, Inc.
/s/ Xxxxx XxXxxxxxxxx
_________________________
Xxxxx XxXxxxxxxxx
General Partner
Ridgewood Investment Associates
/s/ Xxxxxxx X. Xxxxx
__________________________
Witness Xxxxxxx X. Xxxxx
Executive Vice President &
Secretary, Xxxxx Xxxxx, Inc.
EXHIBIT A
Shares Description
5,100 units representing Cardiologics LLC, a limited
51% of the total LLC liability company organized
membership units and under the laws of the State of
capital. New Jersey in January, 1996.
Exhibit B
SECURED PROMISSORY NOTE
Principal Amount: $1,000,000.00 September 20, 0000
Xxxxxxxxx Investment Associates promises to pay, in lawful monies of the
United States of America, to the order of Xxxxx Xxxxx, Inc. (the"Holder"), the
principal sum of One Million Dollars ($1,000,000), together with interest, at 00
Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 or such other place as the Holder may
designate.
1. Interest. Interest will accrue on the unpaid principal balance from today's
date at the rate of eight percent (8%) per annum and will be due and
payable on the due dates. If the Obligor fails to make payment in full on
the Due Date, then interest will accrue on the unpaid balance from the Due
Dates, at the Default Rate which shall be equal to the lesser of: (i)
twelve percent (12%) per year, or (ii) the maximum rate of interest allowed
by applicable law.
2. Security. As security for the Obligor's obligation under this Note and
other indebtedness of the Obligor to the Holder, the Obligor is granting
the holder a security interest in certain investments as described in a
Security Agreement between the Obligor and the Holder dated today's date.
If the Obligor fails to pay this Note on the due date, the Holder may
exercise all of the Obligor's rights and remedies afforded a secured
creditor under the Security Agreement in accordance with New Jersey law.
3. Due Dates. The "Due Dates" shall be the dates of repayment of amounts due
hereunder or such other date specified for repayment in writing by the
Holder. Such Due Dates are as follows:
a) On or before January 2, 1997 - $500,000
On or before April 1, 1997 - $500,000
b) Amounts due pursuant to Section 3 of the Agreement dated
September 20, 1996 shall be due on demand as demanded by the
Holder.
4. Collection Costs and Expenses. The Obligor agrees to pay all costs and
expenses, including reasonable attorneys' fees, incurred by the Holder in
effecting collection of all amounts due under this Note or in enforcing the
Security Agreement. All such costs and expenses shall be added to the
principal amount due under this Note, and shall bear interest at the
Default Rate provided for in Paragraph 1 of this Note.
5. No Waiver by Lender. Any delay or failure by the Holder in taking any
action or exercising any remedy shall not prevent the Holder from doing so
later, and shall not act as a waiver of any of the Holder's rights under
this Note.
6. Borrower' Waivers. The Obligor waives presentment for payment, demand,
notice of protest, notice of dishonor and any other notices or demands in
connection with the delivery, acceptance, payment, performance or
enforcement of this Note, except for demands for payment pursuant to
paragraph 3 above. In any action or proceeding brought by the Holder to
collect any amount due under this Note or otherwise arising out of or in
connection with this Note or the Security Agreement, the Obligor waives
trial by jury and the Holder by acceptance of this Note also waives trial
by jury.
7. Governing Law. This Note is made and delivered in accordance with New
Jersey (U.S.A.) law and New Jersey (U.S.A.) law controls with respect to
any interpretation and/or enforcement. For purposes of this Note, Obligor
(i) agrees to accept personal jurisdiction in New Jersey (U.S.A.), (ii)
agrees that exclusive venue for any and all litigation shall be in New
Jersey (U.S.A.), (iii) waives any claim of lack of jurisdiction or
inconvenient forum, and (iv) agrees that any judgement rendered in favor of
the Holder may be enforced where the Maker's assets are located.
RIDGEWOOD INVESTMENT ASSOCIATES
By: /s/Xxxxx XxXxxxxxxxx
________________________
Xxxxx XxXxxxxxxxx
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is made as of the 20th day of
September, 1996 by and between Ridgewood Investment Associates, a partnership
organized and existing under the laws of New Jersey (the "Debtor"), and Xxxxx
Xxxxx, Inc. (the "Secured Party").
W I T N E S S E T H:
WHEREAS, Debtor has executed in favor of Secured Party that certain
Promissory Note dated the date hereof in the original principal amount of U.S.
$1,000,000.00 (the "Note"); and
WHEREAS, to secure the punctual payment of the principal and interest
payable under the Note and any other sums owed from the Debtor to the Secured
Party (such principal, interest and other sums being hereunder referred to as
the "Obligations"), the Secured Party has requested, and the Debtor has agreed
to grant, a security interest in the collateral (as hereinafter defined);
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. As collateral security for the due and punctual
payment in full of the Obligations, the Debtor hereby grants and conveys to
the Secured Party a first perfected interest in investments set forth in
Exhibit A (hereafter referred to as the "Collateral"). The security
interest granted hereby shall terminate upon the payment in full of all of
the Obligations.
2. Representations, Warranties and Covenants. The Debtor represents, warrants
and covenants to and with the Secured Party as follows:
(a) Except for the security interest granted hereunder, all of
existing Collateral is owned by Debtor free and clear of all liens and
encumbrances and Debtor will keep the collateral free and clear
of all liens and encumbrances so long as this Agreeemnt is in force
with respect thereto.
(b) Debtor shall pay and discharge when due all taxes, assessments and
governmental charges of every kind upon it or its properties which, if
unpaid, might by law become a lien or charge upon its respective
properties.
(c) Debtor shall not sell, transfer or otherwise dispose of, or remove any
of the items of property which comprise the Collateral without the
prior written consent of the Secured party.
3. Default, Rights and Remedies. If any default (including any failure to pay
timely when due, at maturity, by acceleration or otherwise) shall occur
hereunder or under the Note, or then Secured Party shall have the right
upon written notice to Debtor to declare this Agreement to be in default
and thereafter shall have (i) all rights and remedies provided by law,
including those of a secured party under the Uniform Commercial Code, in
addition to the rights and remedies provided for herein or in any other
agreement between Debtor and Secured Party, (ii) the right to declare any
or all of the Obligations due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived,
(iii) the right to dispose of the Collateral and exercise any and all
rights and remedies afforded Secured Party under any and all applicable
provisions of the law, (iv) the right to notify account debtors to make
payments directly to the Secured Party and/or (v) the right to enter upon
the premises on which the Collateral is located, inspect the Collateral, to
take possession thereof and any records related thereto, demand and receive
such possession from the Debtor or any person or organization which has
possession thereof, and to take such measures as the Secured Party may deem
necessary or proper for the care of protection thereof, including the right
to remove all or any portion, to sell or cause to be sold, at public or
private sales, in one or more sales or parcels, all or any portion of the
Collateral without notice of intention to sell or of time or place of sale;
provided, however, that Secured Party shall give the Debtor ten days' prior
written notice of the time and place of any proposed sale or sales and such
other notice as may be required by applicable laws. Any disposition of the
Collateral pursuant hereto shall be made in a manner which is commercially
reasonable within the meaning of the Uniform Commercial Code as in effect
in the jurisdiction or jurisdictions where the Collateral is located. All
of Secured Party's rights, remedies and benefits herein expressly specified
shall be cumulative and not exclusive of any other rights, remedies or
benefits which the Secured Party may have under this Agreement, at law or
otherwise.
4. Application of Proceeds. All proceeds from the sale of the Collateral by
Secured Party hereunder shall be applied first, against the cost of such
sale or collection, second, against any amounts due and owing under the
Notes or the Fee Agreement, third, to any other sums due by Debtor to
Secured Party, and fourth, to Debtor or as a court of competent
jurisdiction may otherwise direct.
5. Notices. Any notice, request, demand or other communication required or
permitted hereunder shall be given in writing, by certified or registered
mail, postage prepaid, or delivered to the last known addresses of the
parties hereto (or at such other address or in care of such other person as
hereafter shall be designated in writing by any party to the other party).
6. Miscellaneous. This Agreement contains the entire agreement of the parties
hereto respecting the subject matter thereof. Every provision of this
Agreement is intended to be severable, and, if any term or provision is
determined to be illegal or invalid for any reasons whatsoever, such
illegality or invalidity shall not affect the validity of the remainder of
this Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. This Agreement shall be goverened
by and construed in accordance with the laws of the State of New Jersey.
Any failure or delay by the Secured Party to require strict performance by
Debtor of any of the provisions, warranties, terms and conditions contained
herein or in any other agreement, document or instrument shall not affect
Secured Party's right to demand strict compliance and performance
therewith, and any waiver of any default shall not affect or constitute
waiver of any other default.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date and year first above written.
RIDGEWOOD INVESTMENT ASSOCIATES
By: /s/Xxxxx XxXxxxxxxxx By: /s/Xxxxxxx X. Xxxx
______________________________ _____________________
Xxxxx XxXxxxxxxxx Xxxxxxx X. Xxxx,
President
Xxxxx Xxxxx, Inc.
Witnessed By:
/s/Xxxxxxx X. Xxxxx
__________________________
Xxxxxxx X. Xxxxx
Executive Vice President
Xxxxx Xxxxx, Inc.
GUARANTEE
THIS GUARANTEE ("Guarantee"), dated as of ____________, 1996, given by
Xxxxxxx X. Xxxx, residing at 000 Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000
("Wall") to Xxxxx Xxxxx, Inc., a New Jersey corporation having its principal
place of business at 00 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 ("VSI"),
WITNESSETH THAT:
WHEREAS, Ridgewood Investment Associates ("Ridgewood") has previously
delivered to VSI a secured promissory note, dated September 20, 1996, in the
principal amount of $1,000,000 (the "Note"), in connection with VSI's sale to
Ridgewood of all of its equity interest in Cardilogics, LLC ("Cardilogics");
WHEREAS, Wall has agreed to guarantee Ridgewood's obligations under the
Note;
NOW THEREFORE, Wall agrees as follows:
1. SCOPE OF THE GUARANTEE. Wall hereby guarantees the performance by
Ridgewood of all of the terms of the Note.
2. IRREVOCABILITY. This Guarantee shall be irrevocable at all times through
and including such time as the Note is fully paid in accordance with its terms,
regardless of any defense, offset or counterclaim which may at any time be
available to or be asserted by Ridgewood, it being the purpose and intent of
Wall that this Guarantee and his obligations hereunder shall remain in full
force and effect and be binding on Wall and his successors until such Note is
fully paid in accordance with its terms.
3. SECONDARY LIABILITY. Wall's liability hereunder shall be secondary to
Ridgewood's liability under the Note. Wall shall be required to perform any and
all obligations of Ridgewood under the Note upon receipt of written notice from
VSI, stating that Ridgewood has failed to perform such obligation and has failed
to cure such obligation within ten days after written notice to Ridgewood.
4. GOVERNING LAW. This Guarantee shall be governed by the laws of the State
of New Jersey excluding the application of conflicts of laws principles.
5. WAIVER. Wall hereby waives any right of notice that he would otherwise
have with respect to any amendment to the Note that may be agreed upon in
writing by Ridgewood and VSI subsequent to the date hereof.
IN WITNESS WHEREOF, Wall has executed this Guarantee as of the date first
set forth above.
/s/ Xxxxxxx X. Xxxx
_______________________________
Xxxxxxx X. Xxxx
