EX 99.1
AMENDMENT TO SUPPLIER AGREEMENT
AMENDMENT dated as of February 28, 2010 to Supplier Agreement dated as of
June 21, 2007 ("Original Agreement"), between LIVING DATA TECHNOLOGY
CORPORATION, a New York corporation ("Living Data") and VASOMEDICAL, INC., a
Delaware corporation ("Vasomedical").
R E C I T A L S:
Living Data and Vasomedical, each having received benefits from the
Original Agreement, now desire to amend and terminate the Original Agreement in
a manner intended to permit Vasomedical to freely contract with the manufacturer
of the Products so that Vasomedical may directly obtain the Products from the
manufacturer, to terminate Vasomedical's purchase obligations under the Original
Agreement, to terminate Living Data's supplier obligations under the Original
Agreement and to provide for the payment in shares of common stock of
Vasomedical for the systems previously identified that were agreed to be
purchased by Vasomedical from Living Data on February 11, 2010.
1. Purchase Price and Payment in Shares. The total purchase price for the
systems agreed to be purchased on February 11, 2010 by Vasomedical from Living
Data (collectively, the "Systems") is $469,450. The Systems have been sold by
Living Data on an as-is basis without representation or warranty other than
Living Data's ownership of the Systems free and clear of liens and encumbrances
and its right to transfer ownership of the Systems to Vasomedical. Payment for
the Systems shall be made by Vasomedical's issuance and delivery to Living Data
of 7,824,167 shares of the common stock of Vasomedical (the "Securities"). The
Securities are being issued as restricted securities in a transaction exempt
from registration under the Securities Act of 1933, as amended (the "Securities
Act"). The number of Securities is calculated based on the closing price of $.06
per share on February 11, 2010.
2. Representations as to Accredited Investor and Purchase for Investment
Status.
2.1 Accredited Investor. Living Data is an "accredited investor" within the
meaning of Rule 501(a) of Regulation D of the Securities and Exchange
Commission, as presently in effect.
2.2 Investment Representations. Living Data is acquiring the Securities for
Living Data's own account for investment only and not with a view to, or for
sale in connection with, a distribution of the Securities or its components and
with no present intention of selling, transferring, granting a participation in
or otherwise distributing, the Securities or its components, all within the
meaning of the Securities Act and the rules and regulations thereunder and any
applicable state securities or blue-sky laws and the rules and regulations
thereunder.
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2.3 Living Data acknowledges to Vasomedical that Living Data has been
advised by Vasomedical that the Securities have not been registered under the
Securities Act or under the laws of any state on the basis that the issuance
thereof contemplated by this Agreement is exempt from such registration.
3. Vasomedical Representations as to Securities. Vasomedical represents
that the Securities, upon issuance, will be duly authorized, validly issued and
outstanding, fully paid and nonassessable and free and clear of all liens,
security interests and restrictions, other than liens or security interests that
might have been created or suffered by Living Data with respect to the
Securities and restrictions imposed by the Securities Act, state securities laws
or this Agreement.
4. Delivery of Systems and Certificates Representing Securities.
Vasomedical acknowledges that it has received delivery of the Systems from
Living Data. Vasomedical shall cause its transfer agent to issue to Living Data
certificates representing the Securities with a customary "restricted
securities" legend within seven business days following the parties' execution
of this Amendment. The Securities shall also be subject to customary "stop
transfer" instructions to the transfer agent.
5. Representations and Warranties of the Parties. Vasomedical and Living
Data represent and warrant to the other as follows:
5.1 Status. Each is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation with full
corporate power and authority to execute, deliver and perform its obligations
under this Amendment.
5.2 Authority. Each has the corporate power and authority to execute and
deliver this Amendment and to carry out its obligations hereunder. The
execution, delivery and performance by each of this Amendment and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action and this Amendment constitutes its valid and legally
binding obligation, enforceable against it in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally now or hereafter
in effect and subject to the application of equitable principles and the
availability of equitable remedies.
5.3 No Conflicts. The execution, delivery and performance of this Amendment
and the other instruments and agreements to be executed, delivered and performed
by such party pursuant hereto and the consummation of the transactions
contemplated hereby and thereby by such party does not and will not with or
without the giving of notice or the passage of time or both, violate or conflict
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with or result in a breach or termination of any provision of, or constitute a
default under, the certificate of incorporation or the by-laws of such party or
any order, judgment, decree, statute, regulation, contract, agreement or any
other restriction of any kind or description to which such party is a signatory
or by which such party may be bound.
6. Termination of Purchase and Supply Commitments. The execution and
delivery of this Amendment shall cause the Term of the Original Agreement (as
defined in Section 4.1 thereof) to end on the date of this Amendment, and
terminate the parties respective undertakings, representations and warranties
set forth in Articles 2, 3 and 5 of the Original Agreement, subject to the
continuation of Living Data's warranties and agreements in Sections 2.5 and 2.7
for parts and systems shipped prior to the date hereof, other than the Systems.
For the avoidance of doubt, Living Data shall have no obligation to maintain the
insurance referred to in Section 2.10 of the Original Agreement beyond the date
of this Amendment.
7. Cooperation and Undertakings of Living Data. In order to facilitate
Vasomedical's entry into agreements with the manufacturers of the Products
providing for the sale and delivery to Vasomedical of such products and spare
parts by such manufacturers (the "Objective"), Living Data shall make such
introductions to the manufacturers and recommendations as to Vasomedical's
commercial conduct as shall reasonably be requested by Vasomedical. Living Data,
at Vasomedical's request, agrees that it shall participate in discussions with
such manufacturers to assist Vasomedical in achieving the Objective. Living
Data, if requested by Vasomedical, shall terminate any agreements with such
manufacturers that preclude the Objective, and shall otherwise act in good faith
and fully cooperate with Vasomedical in its efforts to achieve the Objective.
The foregoing does not include Living Data undertaking financial responsibility
for Vasomedical's performance of its financial obligations.
8. Confirmation. Except as specifically amended hereby, the Original
Agreement is confirmed and remains in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
LIVING DATA TECHNOLOGY CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President
VASOMEDICAL, INC.
By: /s/ Xxx Xx
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Xxx Xx, Chief Executive Officer
