1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of December 10, 1999, between
HEALTH HORIZONS "ESWL", L.P., a New Jersey limited partnership having an
address at 000 Xxxxxx Xx., Xxxxxx Square, Second Floor, New Brunswick, NJ 08901
("Seller"), and HEALTHTRONICS, INC, a Georgia corporation having an address at
000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Purchaser").
RECITALS
--------
A. Seller is a New Jersey limited partnership organized for the provision
of lithotripsy health care services.
B. Seller has, directly or through its affiliates, leased approximately
3,000 square feet of existing space in the Xxxxxx Xxxx Xxxxxxx University
Hospital, One Xxxxxx Xxxx Xxxxxxx Place, New Brunswick, New Jersey (the
"Premises") where it is operating a Lithotripsy service known as the New Jersey
Kidney Stone Treatment Center (the "Center"). All furniture, fixtures,
equipment, rights, assets and interests comprising a portion thereof or related
thereto are sometimes referred to collectively hereinafter as the "Center". The
development, ownership and operation of the Center is referred to hereinafter as
the "Business".
C. Seller desires to sell to Purchaser substantially all of Seller's
assets and rights comprising the Center or otherwise forming a part of or used
in the operation of the Business, other than the Excluded Assets, as herein
defined (the "Purchased Assets"), and Purchaser
2
desires to purchase the Purchased Assets, and all on the terms and subject to
the conditions contained in this Agreement.
AGREEMENTS
Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Purchase and Sale of Assets
1.1 Agreement to Purchase and Sell. On the terms and subject to the
conditions contained in this Agreement, Purchaser agrees to purchase from
Seller, and Seller agrees to sell to Purchaser, all of the Purchased Assets.
1.2 Enumeration of Purchased Assets. The Purchased Assets shall
include the following assets owned by Seller, but only to the extent the same
comprise a portion of the Center or otherwise relate exclusively to the
Business:
(a) all licenses, permits, registrations and governmental or
regulatory approvals applied for or issued to Seller with respect to the Center
or the Business, and any rights thereto or interests therein, including without
limitation: (i) the license for the Center issued to Seller by the New Jersey
Department of Health and Senior Services ("NJDOH") to the extent legally
transferable by Seller;
(b) all inventory and supplies;
-2-
3
(c) all furniture, fixtures, equipment (including, Dornier HM4
Lithotripter without limitation, medical, scientific and office equipment),
machinery, parts, computer hardware, and all other tangible personal property
(other than the Inventory) (collectively, the "Equipment");
(d) all leasehold interests in personal property leased to Seller (the
"Leased Personalty");
(e) Seller's entire leasehold interest under that certain lease for the
Premises between Seller and Xxxxxx Xxxx Xxxxxxx University Hospital (the
"Hospital"), subject to the written consent to the assignment by the Hospital,
as the same may be modified, supplemented, or replaced, the "Lease").
(f) all contracts, license agreements, distribution agreements, service
agreements including the Management Subcontract between Seller and Xxxxxx Xxxx
Xxxxxxx University Hospital, supply agreements, purchase orders, contracts or
bids, franchise agreements, computer software agreements and technical service
agreements to the extent they are legally transferable by Seller including,
without limitation all third party payor contracts relating to the Business;
(g) all patient lists, patient records and information to the extent they
are legally transferable by Seller,
(h) all books and records with respect to the Center and/or the operation
of the Business;
-3-
4
(i) all rights in connection with deposits and prepaid expenses with
respect to the assets being sold hereunder;
(j) all computer software, including all documentation and source codes
with respect to such software and licenses and leases of software to the extent
they are legally transferable by Seller;
(k) the right to use the name "New Jersey Kidney Stone Treatment Center",
and any corresponding marks or designs, but only in connection with the
operation of the Center, and excluding any variations or derivations thereof or
any use thereof in connection with other properties or businesses, and excluding
any other trademarks, trade names, marks or designs of Seller (together with
associated goodwill) or its Affiliates, as hereafter provided;
(l) all promotional materials and advertising literature for the
Business, in any medium whatsoever;
(m) all telephone numbers of the Business; and
1.3. Excluded Assets. The Excluded Assets shall consist of the
following items:
(a) Seller's bank accounts, cash on hand, checkbooks and canceled
checks;
(b) all accounts receivable, negotiable notes and negotiable
instruments (collectively the "Accounts Receivable");
-4-
5
(c) claims (and benefits to the extent they arise therefrom) that
relate to liabilities other than the Assumed Liabilities (as herein defined)
and assets other than the Purchased Assets;
(d) rights arising from prepaid expenses, if any, with respect to
assets not being sold hereunder;
(e) rights arising from any refunds due with respect to insurance
premium payments and tax refunds due from federal, state and local taxing
authorities;
(f) all rights of indemnification and claims which relate to the
conduct of the Business prior to the Closing Date;
(g) Seller's rights under this Agreement;
(h) Seller's minute and record books, and tax returns;
(i) the agreements, if any, set forth on Schedule 1.3(j); and
(j) any and all assets, properties or rights not comprising a portion
of the Center or otherwise used exclusively in the operation of the Business,
including without limitation, those assets described on Schedule 1.3(k).
-5-
6
ARTICLE II
ASSUMPTION OF LIABILITIES
2.1. Agreement to Assume. At the Closing (as herein defined),
Purchaser shall assume and agree to discharge and perform when due, all
liabilities and obligations of Seller relating to the development, ownership
and operation of the Center or the conduct of the Business, of every kind and
description, other than the Excluded Liabilities, as herein defined (the
"Assumed Liabilities"). Assumed Liabilities shall include, but not be limited
to:
(a) Seller's obligations under the lease for the Premises;
(b) trade and other accounts payable as of the Closing Date (as
herein defined);
(c) Seller's obligations or liabilities under any of the Permits
which are assigned or transferred to Purchaser pursuant to the provisions
hereof, and
2.2. Excluded Liabilities. The following (and only the following)
liabilities and obligations of Seller shall constitute the "Excluded
Liabilities":
(a) any liabilities of Seller for income taxes; and
(b) any liabilities of Seller under those leases, contracts,
insurance policies, commitments, sales orders, purchase orders, Permits which
are not assigned to Purchaser pursuant to this Agreement.
-6-
7
2.3. No Expansion of Third Party Rights. The assumption by Purchaser of
the Assumed Liabilities shall not expand the rights or remedies of any third
party against the Purchaser or the Seller as compared to the rights and remedies
which such third party would have had against the Seller had the Purchaser not
assumed the Assumed Liabilities.
ARTICLE III
Purchase Price, Manner of Payment and Closing
3.1. Purchase Price. The purchase price for the Purchased Assets
("Purchase Price") shall be $850,000.00.
3.2. Time and Place of Closing. The transaction contemplated by this
Agreement shall be consummated (the "Closing") at 10:00 a.m. at the offices of
Dechert Price & Xxxxxx Princeton Pike Corporate Center, 000 Xxxxx Xxxxx,
Xxxxxxxx 0, Xxxxx 000, Xxxxxxxxxxxxx, XX 00000 within ten (10) business days
after satisfaction of all conditions to Closing under Article VI hereof. The
date on which the Closing occurs as provided above is referred to in this
Agreement as the "Closing Date". The Closing shall be deemed to be effective as
of 12:01 a.m. on the Closing Date.
3.3. Manner of Payment of the Purchase Price. At the Closing, Purchaser
shall assume in writing the Assumed Liabilities and pay the Purchase Price in
cash to Seller by wire transfer to such account as Seller shall designate by
written notice delivered to Purchaser on or prior to the Closing Date.
-7-
8
3.4 Closing Deliveries. At the Closing, the parties shall execute
and deliver such bills of sale, assignments, documents of title, assumption
agreements, closing certificates, searches, title insurance policies and other
documents as are reasonably required in order to effectuate the consummation of
the transaction contemplated hereby. All documents to be delivered by a party
shall be in form and substance reasonably satisfactory to the other party.
3.5. Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in the manner required by Section 1060 of
the Internal Revenue Code of 1986, as amended (the "Code") and in accordance
with the respective amounts specified in the Purchase Price Computation
submitted by Seller, which shall be conclusive and binding upon the parties for
all purposes hereunder. The Purchaser and the Seller shall each report the
federal, state, and local income and other tax consequences of the transactions
called for in this Agreement in a manner consistent with the foregoing
allocation of the Purchase Price, including but not limited to the preparation
and filing of Form 8594 under Section 1060 of the Code. Such allocations shall
be followed in all tax returns of the Purchaser and the Seller for the taxable
year that includes the Closing Date, and neither Purchaser nor Seller will take
any position inconsistent with the allocations unless otherwise required by
applicable law.
3.6. Possession. Seller shall deliver to Purchaser, at Closing,
possession of the Center, of any of the tangible Purchased Assets capable of
being so delivered, and originals or copies of any documents in Seller's
possession representing intangible Purchase Assets, if applicable.
-8-
9
ARTICLE IV
Representations and Warranties
4.1 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that:
(a) Purchaser is a corporation duly organized, existing and in
good standing, under the laws of the State of Georgia.
(b) Purchaser has full power and authority to enter into and
perform (i) this Agreement and (ii) all documents and instruments to be
executed by Purchaser pursuant to this Agreement (collectively, "Purchaser's
Ancillary Documents"). This Agreement has been, and Purchaser's Ancillary
Documents will be, duly executed and delivered by and on behalf of Purchaser.
(c) No consent, authorization, order or approval of, or filing or
registration with, any governmental authority or other person is required for
the execution and delivery by Purchaser of this Agreement and Purchaser's
Ancillary Agreements, and the consummation by Purchaser of the transaction
contemplated by this Agreement and Purchaser's Ancillary Documents except for
approvals of the transfer to Purchaser of the licenses and permits.
(d) Neither the execution and delivery of this Agreement and
Purchaser's Ancillary Documents by Purchaser, nor the consummation by Purchaser
of the transaction contemplated hereby, will conflict with or result in a breach
of any of the terms, conditions or provisions of Purchaser's Certificate of
Incorporation or Bylaws, or of any statute or
-9-
10
administrative regulation, or of any order, writ, injunction, judgment or decree
of any court or governmental authority or of any arbitration award.
(e) Purchaser is not a party to any unexpired, undischarged or
unsatisfied written or oral contract, agreement, indenture, mortgage, debenture,
note or other instrument under the terms of which performance by Purchaser
according to the terms of which performance by Purchaser according to the terms
of this Agreement will be a default, or whereby timely performance by Purchaser
according to the terms of this Agreement may be prohibited, prevented or
delayed.
(f) Neither Purchaser, nor any of its Affiliates has dealt with
any person or entity who is or may be entitled to a broker's commission,
finder's fee, investment banker's fee or similar payment for arranging the
transaction contemplated hereby or introducing the parties to each other. As
used herein, an "Affiliate" means (i) any person or entity directly or
indirectly controlling, controlled by, or under common control with another
person or entity, (ii) any person or entity owning or controlling 10% or more
of the outstanding voting securities of another person or entity, (iii) any
officer, director, partner or employee of any person or entity, and (iv) any
company for which a person, classified as an Affiliate by virtue of (i), (ii),
or (iii) supra, acts as an officer, director, partner or employee.
(g) Purchaser is familiar with the Purchased Assets, including the
licenses and permits, and shall acquire the same subject to all conditions and
restrictions set forth therein, and all obligations and liabilities of Seller
thereunder or in connection therewith, except for those specified herein as
Excluded Liabilities
-10-
11
4.2. Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that, except as set forth in the schedule delivered by
Seller to Purchaser concurrently herewith and identified as the "Disclosure
Schedule":
(a) Seller is a limited partnership duly organized, existing and
in good standing, under the laws of the State of New Jersey. Seller has all
necessary power and authority to conduct the Business as the Business is now
being conducted.
(b) Seller has full power and authority to enter into and perform
(i) this Agreement and (ii) all documents and instruments to be executed by
Seller pursuant to this Agreement (collectively, "Seller's Ancillary
Documents"). This Agreement will be, and Seller's Ancillary Documents will be,
duly executed and delivered by duly authorized officers of Seller.
(c) No consent, authorization, order or approval of, or filing or
registration with, any governmental authority or other person is required for
the execution and delivery of this Agreement and Seller's Ancillary Documents
and the consummation by Seller of the transaction contemplated by this
Agreement and Seller's Ancillary Documents except for: (i) approvals of the
transfer to Purchaser of the licenses and permits and third party payor
contracts for the Business as permitted, or issuance thereof directly to
Purchaser; and (ii) any other Consents required to carry out the transactions
contemplated hereby or described herein.
(d) Neither the execution and delivery of this Agreement and
Seller's Ancillary Documents by Seller, nor the consummation by Seller of the
transaction contemplated hereby, will conflict with or result in a breach of
any of the terms, conditions or provisions of
-11-
12
Seller's Partnership Agreement, or of any statute or administrative regulation,
or of any order, writ, injunction, judgment or decree of any court or any
governmental authority or of any arbitration award.
(e) Seller has good and marketable title to, and the power to sell, the
Purchased Assets, free and clear of any liens, claims, encumbrances and
security interests, except for the following liens: (i) statutory liens for
taxes not yet due; (ii) liens of landlords, carriers, warehousemen, mechanics
and materialmen for sums not yet due; (iv) liens incurred or deposits made in
connection with workers' compensation, unemployment insurance and the like or
to secure other performance and obligations; and (v) minor irregularities of
title which do not in the aggregate materially detract from the value or use of
the Purchased Assets. Seller makes no representation or warranty as to title to
the Premises.
(f) No default by Seller has occurred under any material contracts,
leases or agreements to which Seller is a party and which relate to the Center
or the conduct of the Business; and, to Seller's knowledge, no default by the
other contracting parties has occurred thereunder, which default would have a
Material Adverse Effect. For the purposes of this Agreement, "Material Adverse
Effect" means a material adverse effect on the assets, liabilities, financial
condition or results of operations of the Business, taken as a whole.
(g) Seller is not a party to, or bound by, any unexpired, undischarged
or unsatisfied written contract, agreement, indenture, mortgage, debenture,
note or other instrument under the terms of which performance by Seller
according to the terms of this Agreement will be a default or an event of
acceleration, which default or acceleration would have a Material
-12-
13
Adverse Effect, or whereby timely performance by Seller according to the terms
of this Agreement may be prohibited, prevented or delayed.
(h) Except as set forth in the Disclosure Schedule, Seller
possesses or has applied for all permits and approvals which are required in
order for the Seller to conduct the Business as contemplated hereunder, where
the failure to possess or obtain such Permits would have a Material Adverse
Effect.
(i) There is no litigation or proceeding, at law or in equity,
and there are no proceedings or governmental investigations before any
commission or other administrative authority, pending, or, to Seller's
knowledge, overtly threatened, against Seller or its Affiliates, relating to he
Center or the Business, which if decided adversely to Seller would prohibit,
prevent or delay Seller's performance hereunder.
(j) To the best of Seller's knowledge, neither the Center nor the
Business is in violation of, or delinquent in respect of, any decree, order or
arbitration award or law, statute, or regulation of or agreement with, or
permit from, any Federal, state or local governmental authority (or to which
the Center, the Business or the Premises are subject), including, without
limitation, laws, statutes and regulations relating to equal employment
opportunities, fair employment practices, unfair labor practices, terms of
employment, occupational health and safety, wages and hours and discrimination,
which violation or delinquency would have a Material Adverse Effect.
-13-
14
(k) The Premises are leased to Seller pursuant to the Lease, a copy of
which is attached to the Disclosure Schedule. Seller is not in default under any
material term of the Lease or of any other agreement relating to the Premises
nor, to Seller's knowledge, is any other party thereto in material default
thereunder.
(l) Neither Seller, nor any of tis Affiliates, has dealt with any person
or entity who is or may be entitled to a broker's commission, finder's fee,
investment banker's fee or similar payment from Purchaser for arranging the
transaction contemplated hereby or introducing the parties to each other.
4.3. Limitations on Warranties. Seller makes no express or implied
warranty of any kind whatsoever, including, without limitation, any
representation as to physical condition or value of any of the Purchased Assets
or the future profitability or future earnings performance of the Business.
ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
ARE EXPRESSLY EXCLUDED, THE BENEFITS(S) THEREOF BEING HEREBY WAIVED BY
PURCHASER.
4.4. Definition of Knowledge. For purposes of this Agreement, a
representation and warranty made to the best of a party's "knowledge" (or any
variation of the foregoing) shall refer only to the conscious awareness of any
officer or management-level employee of such party, having supervisory or
administrative responsibility in respect of the fact(s) or circumstance(s)
described therein.
-14-
15
ARTICLE V
Conduct Prior to the Closing
5.1. General. Between the date hereof and the Closing Date:
(a) Seller shall give to Purchaser's manager, officers,
employees, attorneys, consultants, accountants and lenders reasonable access
during normal business hours to all of the properties, books, contracts,
documents, records and personnel of Seller and shall furnish to Purchaser such
information as Purchaser may at any time and from time to time reasonably
request.
(b) Seller shall use reasonable efforts and make every good faith
attempt (and Purchaser shall cooperate with Seller) to obtain such consents as
are necessary for the assignment to Purchaser of, the assumption of Seller's
obligations under, and the release of Seller under, the contracts, leases,
insurance policies, agreements, purchase orders, sales orders or other
instruments (including, without limitation, the Lease), and permits comprising
Purchased Assets or Assumed Liabilities hereunder, all as may be necessary to
carry out the transactions contemplated hereby (the "Consents").
(c) Seller shall carry on the Business in a manner consistent
with past practices and shall use its reasonable efforts and make every good
faith attempt to establish and preserve its business and the goodwill of its
patients, suppliers and others having business relations with Seller, including
keeping available the services of its present employees, representatives and
agent.
-15-
16
(d) No party shall intentionally perform any act which, if performed, or
omit to perform any act which, if omitted to be performed, would prevent or
excuse the performance of this Agreement by any party hereto or which would
result in any representation or warranty herein contained of said party being
untrue in any material respect as if originally made on and as of the Closing
Date.
ARTICLE VI
Conditions to Closing
6.1. Conditions to Seller's Obligations. The obligation of Seller to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the
non-fulfillment of any of which this Agreement may, at Seller's option, be
terminated pursuant to and with the effect set forth in Article XI:
(a) Consent of the limited partners of Seller to proceed with
the transaction.
(b) Consent of the Board of Directors of the corporate general
partner of the Limited Partnership.
(c) Each and every representation and warranty made by Purchaser
shall have been true and correct in all material respects when made and shall
be true and correct in all material respects as if originally made on and as of
the Closing Date.
(d) All obligations of Purchaser to be performed hereunder
through, and including the Closing Date (including, without limitation, all
obligations which Purchaser would
-16-
17
be required to perform at the Closing if the transaction contemplated hereby was
consummated) shall have been performed.
(e) No suit or proceeding shall have been commenced by any
governmental authority on any grounds to restrain, enjoin or hinder the
consummation of the transaction contemplated hereby.
6.2 Conditions to Purchaser's Obligations. The obligation of
Purchaser to consummate the transaction contemplated hereby is subject to the
fulfillment of all of the following conditions on or prior to the Closing Date,
upon the non-fulfillment of any of which this Agreement may, at Purchaser's
option, be terminated pursuant to and with the effect set forth in Article XI:
(a) Each and every representation and warranty made by Seller
shall have been true and correct in all material respects when made and shall be
true and correct in all material respects as if originally made on and as of the
Closing Date.
(b) No suit or proceeding shall have been commenced by any
governmental authority on any grounds to restrain, enjoin or hinder the
consummation of the transaction contemplated hereby.
(c) New Jersey Department of Health and Senior Services shall
have approved in writing Purchaser as license-holder for the Center.
-17-
18
ARTICLE VII
Post-Closing Agreements
7.1. Post-Closing Agreements. From and after the Closing, the parties
shall have the respective rights and obligations which are set forth in the
remainder of this Article VII.
7.2. Payments of Accounts Receivable. In the event Purchaser shall
receive any instrument of payment of any of the Accounts Receivable, Purchaser
shall forthwith deliver it to Seller, endorsed where necessary, without
recourse, in favor of Seller.
7.3. Non-Assignment. Notwithstanding any provision to the contrary
contained herein, Seller shall not be obligated to assign to Purchaser any
contract, payor contract or agreement, purchase order, sales order, lease or
other instrument which provides that it may not be assigned without the consent
of the other party thereto and for which such consent is not obtained, but in
any such event, Seller shall cooperate with Purchaser in any reasonable
arrangement designed to provide the benefits thereof to Purchaser.
7.4. Further Assurances. The parties shall execute such further
documents, and perform such further acts, as may be necessary to transfer and
convey the Purchased Assets to Purchaser, on the terms herein contained, and to
otherwise comply with the terms of this Agreement and consummate the transaction
contemplated hereby.
- 18 -
19
ARTICLE VIII
Indemnification
8.1. Indemnification by Seller. Seller covenants and shall indemnify
Purchaser and hold it harmless against and with respect to any and all damage,
loss, liability, deficiency, cost and expense (including, without limitation,
reasonable attorney fees) (referred to herein as a "Loss") resulting from (i)
any misrepresentation, breach of warranty, or failure to fulfill any agreement
or covenant on the part of Seller under this Agreement; (ii) any taxes,
interest, penalties and additions to tax that are required to be paid to the
United States Government or any state or local taxing authority resulting from
the operation of the Center for any period ending on or before the Closing Date;
(iii) any claim relating to operation of the Center arising from events or
transactions occurring prior to the Closing; (iv) any claim relating to Seller's
involvement with any employee pension benefit plan or employee welfare benefit
plan, as those terms are defined in ERISA, or any other similar plan, agreement
or arrangement designed to provide retirement, medical or supplemental benefits
for an employee or group of employees; and (v) any and all actions, suits,
proceedings, demands, assessments, judgments, cost and legal and other expenses
incident to any of the foregoing.
If any claim or demand for which Seller will be liable to
Purchaser pursuant to this Paragraph 9.1 is asserted against or sought to be
collected from Purchaser by a third party, Purchaser will give written notice
thereof to Seller, and Seller shall have the option to defend Purchaser against
such claim or demand by counsel satisfactory to Purchaser; provided, however,
that Seller shall not, in defense of any such claim, except with the prior
written consent of
- 19 -
20
Purchaser, consent to the entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff in question to Purchaser and its affiliates a release of
any liabilities in respect of such claims, or that does not result only in the
payment of money damages by Seller.
8.2 Indemnification by Purchaser. After Closing, Purchaser covenants
and shall indemnify Seller and hold it harmless against and with respect to any
and all Losses resulting from (i) any misrepresentation, breach of warranty, or
failure to fulfill any agreement or covenant on the part of Purchaser under
this Agreement; (ii) any claim relating to any liability of Seller or the
Center that are expressly assumed by the Purchaser pursuant to the terms of this
Agreement; (iii) any claim relating to the operation of the Center arising from
events or transactions occurring after the Closing; and (v) any and all
actions, suits, proceedings, demands, assessments, judgments, costs and legal
and other expenses incident to any of the foregoing.
If any claim or demand for which Purchaser will be liable to
Seller pursuant to this Paragraph 9.2 is asserted against or sought to be
collected from Seller by a third party, Seller will give written notice thereof
to Purchaser, and Purchaser shall have the option to defend Seller against such
claim or demand by counsel satisfactory to Seller, provided, however, that
Purchaser shall not, in defense of any such claim, except with the prior
written consent of Seller, consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff in question to Seller and its affiliates a
release of any liabilities in respect of such claims, or that does not result
only in the payment of money damages by Purchaser.
-20-
21
ARTICLE IX
Effect of Termination/Proceeding
9.1. Right to Terminate. This Agreement and the transaction
contemplated hereby may be terminated at any time prior to the Closing by
prompt notice given in accordance with Section 10.3:
(a) by the mutual written consent of Purchaser and Seller.
9.2. Remedies. In the event of a breach of this Agreement, the
non-breaching party shall not be limited to the remedy of termination of this
Agreement, but shall be entitled to pursue a claim against the defaulting party.
ARTICLE X
Miscellaneous
10.1. Sales and Transfer Taxes. Purchaser shall pay all sales, use,
transfer and conveyance taxes, if any, arising in connection with the sale and
transfer of the Purchased Assets to Purchaser pursuant to this Agreement.
10.2. Publicity. Except as otherwise required by law, press releases
concerning this transaction shall be made only with the prior agreement of both
Seller and Purchaser.
10.3. Notices. All notices required or permitted to be given hereunder
shall be in writing and may be delivered by hand, by facsimile, by nationally
recognized private courier, or
-21-
22
by United States mail. Notices delivered by mail shall be deemed given three
(3) business days after being deposited in the United States mail, postage,
prepaid, registered or certified mail. Notices delivered by hand by facsimile,
or by nationally recognized private carrier shall be deemed given on the first
business day following receipt, provided, however, that a notice delivered by
facsimile shall only be effective if such notice is also delivered by hand, or
deposited in the United States mail, postage prepaid, registered or certified
mail, on or before two (2) business days after its delivery by facsimile. All
notices shall be addressed as follows:
If to Seller
Addressed to:
Central Jersey Health Care Corporation
Xxx Xxxxxx Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telecopier: 732/937-8941
with copy to:
Xxxxx X. Xxxxxxxxxxx, Esq.
Dechert Price & Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
-22-
23
If to Purchaser
Addressed to:
Healthtronics, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention:
Telecopier:
and/or to such other respective addresses and/or addressees as may be
designated by notice given in accordance with the provisions of this Section
11.3.
10.4. Expenses. Each party hereto shall bear all fees and expenses
incurred by such party in connection with, relating to or arising out of the
execution, delivery and performance of this Agreement and the consummation of
the transaction contemplated hereby, including, without limitation, attorneys',
accountants' and other professional fees and expenses.
10.5. Entire Agreement. This Agreement and the instruments to be
delivered by the parties pursuant hereto constitute the entire agreement
between the parties. Each exhibit and the Disclosure Schedule shall be
considered incorporated into this Agreement. Any matter which is disclosed in
any portion of the Disclosure Schedule is deemed to have been disclosed for the
purposes of all relevant provisions of this Agreement. The inclusion of any
item in the Disclosure Schedule is not evidence of the materiality of such item
for the purposes of this Agreement and Seller's Ancillary Documents. The
parties make no representations or warranties
-23-
24
to each other, except as contained in this Agreement. Purchaser acknowledges
that it has conducted an independent investigation of the financial condition,
assets, liabilities, properties and operations of the Business in making its
determination as to the propriety of the transaction contemplated by this
Agreement, and in entering into this Agreement has relied solely on the results
of said investigation, and on the representations and warranties of Seller
expressly contained in this Agreement.
10.6. Non-Waiver. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants or conditions of
this Agreement, to exercise any right or privilege in this Agreement conferred,
or the waiver by said party of any breach of any of the terms, covenants or
conditions of this Agreement, shall not be construed as a subsequent waiver of
any such terms, covenants, conditions, rights or privileges, but the same shall
continue and remain in full force and effect as if no such forbearance or waiver
had occurred. No waiver shall be effective unless it is in writing and signed by
an authorized representative of the waiving party.
10.7. Applicable Law. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construction, effect and
in all other respects by the internal laws of the State of New Jersey applicable
to contracts made in that State.
10.8. Binding Effect, Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended
to confer on any person other than the parties hereto, and their respective
successors and permitted assigns any rights, remedies, obligations or
-24-
25
liabilities under or by reason of this Agreement, including, without
limitation, third party beneficiary rights.
10.9. Assignability. This Agreement shall not be assignable by either
party without the prior written consent of the other party.
10.10. Amendments. This Agreement shall not be modified or amended
except pursuant to an instrument in writing executed and delivered on behalf of
each of the parties hereto.
10.11. Heading. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
-25-
26
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
SELLER:
HEALTH HORIZONS
a New Jersey Limited Partnership
By: /s/ XXXXXXXX XXXXXXXXX
---------------------------------
Name: XXXXXXXX XXXXXXXXX
Title: Vice President
PURCHASER:
HEALTHTRONICS, INC.
a Georgia corporation
By: /s/ XXX X. XXXXX
---------------------------------
Name: XXX X. XXXXX
Title: President
-26-
27
SCHEDULE 1.3(i)
Excluded Assets: Agreements
SCHEDULE 1.3(k)
Excluded Assets: Assets, Properties Or Rights Not Comprising A
Portion Of The Center Or Otherwise Used Exclusively In The Operation Of The
Business.
-27-
28
DISCLOSURE SCHEDULE
Permits Not Obtained or Applied For
-----------------------------------
[None]
Copies of the Lease
-------------------
[Attached]
- 28 -