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EXHIBIT 10.2
ASSET PURCHASE AGREEMENT
AGREEMENT, dated as of _______________, 1998, between CAPSTONE CAPITAL
CORPORATION, a Maryland corporation ("Seller"), and ORTHOPAEDIC SURGEONS, INC.,
a Delaware corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller desires to sell, assign and transfer, and Buyer desires
to purchase and acquire, certain of Seller's assets, subject to the assumption
by Buyer of the Assumed Liabilities (as defined herein), all on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.1. PURCHASE AND SALE OF ASSETS.
1.1. TRANSFERRED ASSETS. Subject to the terms and conditions
set forth in this Agreement, Seller shall sell, transfer and deliver by
quitclaim and without warranty to Buyer, and Buyer shall purchase and acquire
from Seller, all of Seller's right, title and interest in and to the specific
assets owned by Seller set forth on Schedule A attached hereto (the "Transferred
Assets").
1.2. PURCHASE PRICE. The purchase price for the Transferred
Assets (the "Purchase Price") shall be (i) $350,000 in cash, payable on the
Closing Date and (ii) the assumption and release of Seller's obligations and
liabilities under the leases and agreements set forth on Schedule B attached
hereto (the "Assumed Agreements").
1.3. THE CLOSING. The closing of the purchase and sale
contemplated hereby (the "Closing") shall occur at Buyer's executive offices
concurrently with the closing of the Merger or on such other date as the parties
shall mutually agree upon, but not later than __________, 1999. At the Closing,
the parties hereto shall make the deliveries described below, provided that the
obligation of each to do so shall depend upon the performance by the other party
of its obligations hereunder:
(a) Seller shall deliver to Buyer the following:
(i) A xxxx of sale for the Transferred
Assets; and
(ii) Such other documents as may be
reasonably necessary to consummate
the transactions contemplated
hereby.
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(b) Buyer shall deliver the following:
(i) A wire transfer to Seller of the
amount of $350,000; and
(ii) An assumption of the Assumed
Agreements;
(iii) Releases of Seller's obligations
under each of the Assumed
Agreements; and
(iv) Such other documents as may be
reasonably necessary to consummate
the transactions contemplated
hereby.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Buyer that Seller is a corporation duly organized and
existing in good standing under the laws of the state of Maryland. Seller has
all requisite power and authority, corporate or otherwise, to enter into this
Agreement and to perform fully its obligations hereunder. The execution and
delivery of this Agreement and the performance by Seller of its obligations
hereunder have been duly and validly authorized by all necessary corporate
action on the part of Seller. This Agreement is a valid and binding obligation
of Seller enforceable in accordance with its terms.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents
and warrants to Seller that Buyer is a corporation duly organized and existing
in good standing under the laws of the state of Delaware. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
assume and perform fully its obligations hereunder. The execution and delivery
of this Agreement and the performance by Buyer of its obligations hereunder have
been duly and validly authorized by all necessary corporate action on the part
of Buyer. This Agreement is a valid and binding obligation of Buyer enforceable
in accordance with its terms.
SECTION 4. COVENANTS TO THE PARTIES.
4.1. EFFORTS TO CONSUMMATE TRANSACTION. Buyer and Seller
shall use their respective best efforts to take or cause to be taken all such
actions required to consummate the transactions contemplated hereby including,
without limitation, such actions as may be necessary to obtain, prior to the
Closing, all necessary governmental or other third-party approvals and consents
required to be obtained in connection with the consummation of the transactions
contemplated by this Agreement.
4.2. SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO
DESCRIPTION, QUALITY, MERCHANTABILITY,
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FITNESS FOR ANY PARTICULAR PURPOSE, PRODUCTIVENESS, OR ANY OTHER MATTER, OF ANY
OF THE TRANSFERRED ASSETS. SELLER SHALL BE IN NO WAY RESPONSIBLE FOR THEIR
PROPER USE AND SERVICE, AND BUYER HEREBY WAIVES ALL RIGHTS OF REFUSAL AND RETURN
OF GOODS.
4.3. EXPENSES. Each party agrees to bear its own expenses
incurred in connection with the transactions contemplated hereby. All transfer
or sales taxes payable in connection with the purchase and sale of the
Transferred Assets shall be borne by Buyer.
SECTION 5.5. AGREEMENT TO INDEMNIFY. Buyer hereby agrees to
indemnify and hold harmless Seller and Seller's officers, directors, employees,
representatives, successors and affiliates from and against any and all losses,
liabilities, claims, damages and costs (including attorneys' fees) incurred by
any of such indemnified persons as a result of (i) the failure of the Buyer's
representations and warranties set forth in this Agreement to be true and
correct in all respects, or (ii) Buyer's failure to discharge the Assumed
Agreements when due. Such indemnification obligations shall apply regardless of
any investigation made by any party and shall survive until the expiration of
all applicable statutes of limitations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on the date and year first above written.
CAPSTONE CAPITAL CORPORATION
By:
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Title:
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ORTHOPAEDIC SURGEONS, INC.
By:
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Title:
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SCHEDULE A
TRANSFERRED ASSETS
A-1
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SCHEDULE B
ASSUMED AGREEMENTS
B-1
