EXHIBIT 10W
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ASSET PURCHASE AGREEMENT
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This ASSET PURCHASE AGREEMENT (the "Agreement") dated as of January 1,
1996 by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, MD PA, (the "Seller"), a Florida
corporation with an office at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and CSI Fort Lauderdale, Inc., a Florida corporation with an
office at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
(the "Purchaser").
R E C I T A L S:
WHEREAS, Seller owns the assets of a medical practice with offices in Fort
Lauderdale and Miami, Florida; and
WHEREAS, Purchaser desires to purchase and the Seller desires to sell to
Purchaser all of the assets of Seller's medical practice; and
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
g.. PURCHASE OF ASSETS.
1. SALE AND PURCHASE. Subject to the terms and conditions set forth
in this Agreement, Seller agrees to sell and deliver to the Purchaser and the
Purchaser agrees to purchase from the Seller at the Closing, hereinafter defined
the assets of Sellers medical practice set forth on Schedule "A" annexed hereto
(hereinafter the "Assets"), exclusive of Seller's Accounts Receivable for
medical and ancillary services.
2. PURCHASE PRICE. In consideration for the sale of the Assets, the
Purchaser agrees to pay to the Seller the sum of $1,242,303.00. In addition,
Purchaser agrees to purchase Seller's Accounts Receivable for an additional
$123,787.00.
3. PAYMENT OF PURCHASE PRICE. The purchase price will be paid as
follows:
a) Purchaser together with its corporate parent, CSI, a
Delaware corporation, shall release Seller from the obligation to repay all
advances and other payables due from Seller whether billed or unbilled as of the
effective date of this Agreement, and
b) Purchaser shall pay Seller an additional amount of
$65,567.00 in cash.
h. CLOSING AND CONDITION TO CLOSING.
i. CLOSING AND CLOSING DATE. The closing (the "Closing") shall take
place at the offices of the Purchaser, effective on the effective date of this
Agreement.
2. CONDITION TO CLOSING. The Closing shall be subject to
satisfaction of the condition that (a) the representations and warranties of (i)
the Seller contained in Section 3 hereof, and (ii) the Purchaser contained in
Section 4 hereof are true and correct and shall be true and correct as of the
Closing Date; (b) the Seller shall have delivered to the Purchaser the items
required by Section 2.3 hereof; and (c) the Purchaser and the Seller shall have
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performed and complied with all agreements and conditions required by this
Agreement to be performed and complied with by such party prior to or as of the
Closing Date.
3. DELIVERIES BY THE SELLER. At the Closing the Seller shall deliver
or cause to be delivered to the Purchaser a ▇▇▇▇ of sale for the assets in form
annexed hereto as Exhibit "C".
i. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
i. ORGANIZATION AND STANDING OF THE SELLER. The Seller is a
professional association duly organized, validly existing and in good standing
under the laws of the State of Florida, and has clear title to the assets and is
entitled to sell said assets.
ii. AUTHORITY OF THE SELLER; CONSENTS; EXECUTION OF AGREEMENTS. The
Seller has all requisite power, authority, and capacity to enter into this
Agreement and to perform the transactions and obligations to be performed by it
hereunder. No consent, authorization, approval, license, permit or order of, or
filing with, any person or governmental authority is required in connection with
the execution of the transactions and obligations to be performed by it
hereunder. The execution and delivery of this Agreement, and the performance of
the transactions and obligations contemplated hereby by the Seller, have been
duly authorized by all requisite action of the Seller. This Agreement has been
duly executed and delivered by the Seller and constitutes a valid and legally
binding obligation of the Seller, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws.
D. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
1. AUTHORITY OF THE PURCHASER; CONSENTS; EXECUTION OF AGREEMENTS.
The Purchaser is a duly and properly formed corporation under the laws of the
State of Florida and has all requisite power, authority, and capacity to enter
into this Agreement and to perform the transactions and obligations to be
performed by it hereunder. No consent, authorization, approval, license, permit
or order of, or filing with, any person or governmental authority is required in
connection with the execution of the transactions and obligations to be
performed by it hereunder. The execution and delivery of this Agreement, and the
performance of the transactions and obligations contemplated hereby by the
Purchaser, have been duly authorized by all requisite action of the Purchaser.
This Agreement has been duly executed and delivered by the Purchaser and
constitutes a valid and legally binding obligation of the Purchaser, enforceable
in accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws.
E. COVENANT NOT TO COMPETE.
1. During the term of this Agreement and for a period of two (2)
years thereafter, Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall not, directly or
indirectly, (a) divert or attempt to divert any business or patients of CSI to
any other medical practice or research facility in competition with CSI within
the geographic area of ▇▇▇▇ County, Illinois or (b) solicit or induce employees
of CSI to terminate their employment with CSI and/or engage in any business in
competition with the business carried on by CSI.
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2. Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall not, during the term of this
Agreement or any time thereafter, communicate or divulge to, or use for the
benefit of any other person, partnership, association, corporation or entity,
any confidential or proprietary information regarding CSI's research, protocols,
procedures, systems, techniques, formulas, inventions or other knowledge
concerning CSI, the Facilities or the research being conducted at the Facilities
or any of the services provided by CSI.
3. Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ agree that for a period of two years
they will not compete with, or, directly or indirectly, own, manage, operate,
control, loan money to, or participate in the ownership, operation or control
of, or be connected with as a director, partner, consultant, agent, independent
contractor or otherwise, or acquiesce in the use of his name in any other
business or organization which is in direct competition with CSI as a for-profit
provider of specialized services for the treatment of HIV infection, Chronic
Fatigue Syndrome and related diseases in the geographical area of Fort
Lauderdale and Miami, Florida provided, however, that Employee shall be
permitted after the cessation of his employment but during the Covenant Period
to own less than a 5% interest as a shareholder in any company which is listed
on any national securities exchange even though it may be in competition with
CSI.
4. Since a breach of the provisions of this Section 6 could not
adequately be compensated by money damages and will cause irreparable injury to
CSI, CSI shall be entitled, in addition to any other right or remedy available
to it, to an injunction or restraining order restraining such breach or a
threatened breach, and no bond or other security shall be required in connection
therewith, and Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby consent to the issuance of
any such injunction or restraining order. Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ agree
that the provisions of the Section 6 are reasonable and necessary to protect CSI
and its business. It is the desire and intent of the parties that the provisions
of this Section 6 shall be enforced to the fullest extent permitted under the
public policies and laws applied in each jurisdiction in which enforcement is
sought. If any restriction contained in this Section 6 shall be deemed to be
invalid, illegal or unenforceable by reason of the extent, duration or
geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration, geographical
scope or other provision hereof and in its reduced form such restriction shall
then be enforceable in the manner contemplated hereby.
F. MISCELLANEOUS.
1. COSTS AND EXPENSES. Each party agrees to pay its own costs and
expenses in connection with the preparation, execution and delivery of this
Agreement and any other instruments and documents to be delivered hereunder.
2. WAIVERS AND AMENDMENTS. This Agreement may be amended or modified
in whole or in part only by a writing which makes reference to this Agreement
and is executed by the parties to this Agreement. The obligations of any party
hereunder may be waived (either generally or in a particular instance and either
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retroactively or prospectively) only with the written consent of the party
claimed to have given the waiver; provided, however, that any waiver by any
party of any violation of, breach of, or default under any provision of this
Agreement or any other agreement provided for herein shall not be constructed
as, or constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any provision of this Agreement or any
other agreement provided for herein.
3. INVALIDIIf any provision in this Agreement shall be determined to
be invalid, illegal or unenforceable, such provision shall not effect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
4. GOVERNING LAW. This Agreement shall in all respects be governed
by and constructed in accordance with the laws of the State of Florida without
giving effect to the principles of conflicts of law thereof.
5. NOTICES. Any notice, request or other communication required or
permitted hereunder shall be in writing and be deemed to have been duly given if
personally delivered or five business days after being sent by recognized
overnight courier or confirmed facsimile to the parties at their respective
addresses set forth herein.
6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
7. SUCCESSORS AND ASSIGNS. Neither this Agreement, nor any of the
rights or obligations hereunder, shall be assigned by either party hereto
without the prior written consent of the other party hereto. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
8. THIRD PARTIES. Nothing expressed or implied in this Agreement is
intended, or shall be constructed, to confer upon or give any person or entity
other than the parties hereto and their permitted assigns any rights or remedies
under or by reason of this Agreement.
9. EXHIBITS. The exhibits attached to this Agreement are
incorporated herein and shall be part of this Agreement for all purposes.
10. HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed, or have caused their
duly authorized officer or representative to execute, this Asset Purchase
Agreement as of the date first above written.
SELLER:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, MD PA
By:_______/S/__________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
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_________/S/__________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Individually
PURCHASER:
CSI FORT LAUDERDALE, INC.
a Florida corporation
By:__________/S/______________
W. ▇▇▇▇▇▇▇ ▇▇▇▇
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