Exhibit 10.11
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made and entered into
this 13th day of December, 2002 by and among New View Diagnostics, L.L.C., an
Indiana limited liability company ("Seller"), and Vision Diagnostics, Inc., a
Florida corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is in the business of operating a diagnostic imaging
center located in Carol Stream, Illinois and activities incidental thereto (the
"Business"); and
WHEREAS, Purchaser wishes to acquire, and Seller wishes to sell,
transfer, assign and convey to Purchaser certain of Seller's assets relating to
the Business, solely upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties to this
Agreement, Seller and Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF ASSETS. At "Closing" (hereinafter defined), Seller
agrees to sell, convey, grant, assign and deliver to Purchaser and
Purchaser agrees to acquire, purchase and accept from Seller, free and
clear of all security interests, liens and encumbrances (collectively
"Liens"), except for liens in favor of MarCap Corporation, a Delaware
corporation ("Lender"), the assets set forth below (collectively, the
"Acquired Assets"):
a. all machinery, equipment, furniture, fixtures, office
equipment, maintenance and security deposits, tools and all
other items of personal property owned by Seller and used in
the Business (collectively "Personal Property");
b. all inventories of maintenance, office and laboratory supplies
owned by Seller and used in the operation of the Business
(collectively "Supplies");
c. all of Seller's transferable federal, state and municipal
licenses and permits relating to or necessary or useful in the
operation of the Business (collectively "Permits");
d. all of Seller's customer and prospective customer lists
(excluding Patient Records (as hereinafter defined)),
accounting records, sales and business records, drawings,
product specifications, correspondence, engineering,
maintenance, operating and production records, and all other
documents maintained by Seller and relating to the Business
(collectively "Records"), other than those listed in Section
2;
e. those contracts, agreements and licenses, including, without
limitation, supply agreements, purchase orders, customer
agreements and maintenance agreements, relating to the
Business to which Seller or any affiliate thereof is a party
(collectively "Contracts");
f. all accounts receivables and trade receivables (other than
intercompany receivables) which arose in the ordinary course
of business (collectively, "Receivables");
g. the personal property leases of Seller relating to the
Business (collectively "Leases"); and
h. all telephone and facsimile numbers used in the Business and
all security deposits related to the Leases assumed by
Purchaser hereunder (collectively "Miscellaneous Property").
2. EXCLUDED ASSETS. Seller is not selling, transferring or assigning to
Purchaser, and Purchaser is not purchasing, acquiring or assuming from
Seller, the following assets of Seller, which assets shall remain the
property of Seller and shall be excluded from the definition of
Acquired Assets as described and defined in this Agreement
(collectively, "Excluded Assets"):
a. articles of organization, operating agreement, minute books,
income tax returns, checkbooks and canceled checks and similar
company records;
b. Patient Records and lists of patients;
c. Medicare numbers; and
d. non-transferable business licenses.
3. AGREEMENT TO ASSUME; PRORATIONS. At the Closing, Purchaser shall assume
and agree to discharge and perform the obligations and liabilities of
Seller (i) under the terms of any Contract, Lease or Permit which is
assigned to Purchaser pursuant to this Agreement and (ii) trade
payables up to a maximum of $30,000. Payroll, rent, radiology fees, and
any other prepaid items will be prorated at Closing (collectively, the
"Assumed Liabilities").
4. PURCHASE PRICE, METHOD OF PAYMENT. Purchaser agrees to pay to Seller
(or its assigns) and Seller agrees to accept from Purchaser, in full
payment for the Acquired Assets, the aggregate sum of One Million Seven
Hundred Fifty Thousand and 00/100 Dollars ($1,750,000) (the "Purchase
Price"), pursuant to a promissory note secured by the Acquired Assets
issued and delivered to Lender by Purchaser at the Closing, in
substantially in the form of Exhibit A attached hereto (the "Note").
5. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants to Purchaser as follows:
a. EXISTENCE AND GOOD STANDING. Seller is a limited liability
company duly organized, validly existing and in good standing
under the laws of the State of Indiana.
b. AUTHORITY OF SELLER; CONSENTS. The execution, delivery and
consummation of this Agreement and the transactions
contemplated hereby by Seller have been duly authorized by
Seller in accordance with all applicable laws. No further
action will be necessary on the part of Seller to make this
Agreement valid and binding upon Seller and enforceable
against Seller in accordance with its terms. No approval or
consent of any person, firm or governmental agency, division
or office is required to be obtained by Seller for the
authorization of this Agreement or the consummation of the
transactions contemplated by this Agreement.
c. NO CONFLICTS. The execution and delivery of this Agreement,
the consummation of this transaction and/or the fulfillment of
the terms and provisions of this Agreement will not constitute
a default under or conflict with any judgment, decree or order
or award of any court or other governmental body, or any
agreement or understanding to which Seller is a party or to
which any of the Acquired Assets are subject.
d. TITLE TO ACQUIRED ASSETS. Seller has, and will have as of the
Closing Date, good and marketable title to all of the Acquired
Assets being transferred to Purchaser hereunder. Title to the
Acquired Assets will be transferred to Purchaser free and
clear of all Liens, except for the Liens of Lender which
secure payment of the Purchase Price under the Note.
e. DISCLAIMER OF WARRANTIES. SELLER IS SELLING, AND PURCHASER IS
PURCHASING, THE ACQUIRED ASSETS "AS IS", "WHERE IS" AND "WITH
ALL FAULTS". SELLER HEREBY SPECIFICALLY DISCLAIMS ALL EXPRESS
AND IMPLIED WARRANTIES WITH RESPECT TO THE ACQUIRED ASSETS,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE AS
THOSE TERMS ARE DEFINED IN THE UNIFORM COMMERCIAL CODE.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
a. AUTHORITY OF PURCHASER; CONSENTS. No approval or consent of
any person, firm or governmental agency, division or office is
required to be obtained by Purchaser for the authorization of
this Agreement or the consummation of the transactions
contemplated by this Agreement.
b. NO CONFLICTS. The execution and delivery of this Agreement,
the consummation of this transaction and/or the fulfillment of
the terms and provisions of this Agreement will not constitute
a default under or conflict with any judgment, decree or order
or award of any court or other governmental body, or any
agreement or understanding to which Purchaser is a party.
c. LITIGATION. There is no action, suit or proceeding pending or,
to Purchaser's knowledge threatened, before any court or
governmental authority which would give Purchaser or any other
party the right to rescind or enjoin this transaction.
7. COVENANTS OF THE PARTIES.
a. COLLECTION OF ACCOUNTS. Seller will, in the ordinary course of
its business, collect and deposit in a separate account, on
Purchaser's behalf, the Receivables remitted by such account
debtors in existence as of the Closing Date. The sums
collected by Seller on behalf of Purchaser shall be remitted
no later than fifteen (15) days after the end of each month
for a period not to exceed three (3) months from and after the
Closing Date. The foregoing notwithstanding, Seller shall be
under no obligation to take any other measure or make any
effort outside the ordinary course of business to collect the
Receivables, including, without limitation, issuing written
demands for payment, commencing litigation, arbitration or any
similar procedure(s) to collect payment of the Receivables.
b. MAINTENANCE OF PATIENT RECORDS. Purchaser shall maintain, on
Seller's behalf, patient records, charts, data and other
medical records of or pertaining to Seller's patients
(collectively, the "Patient Records"), for a ten (10) year
period after the Closing Date, with respect to all patients
treated at Seller's facility on or prior to the Closing Date.
The foregoing notwithstanding, Purchaser shall maintain any
and all patient mammography records indefinitely. Purchaser
shall provide Seller, or its representatives, with access to
such Patient Records, for reasonable business purposes at all
reasonable times during normal business hours. As used in this
Section 7(c), the right of inspection includes the right to
make extracts or copies.
c. SELLER'S EMPLOYEES AND BENEFITS. Seller will terminate all of
the employees of the Business effective as of the Closing
Date. Purchaser will offer initial employment to those of the
employees of the Business it may, in its sole discretion, wish
to employ. Under no circumstances is Purchaser obligated to
employ such employees hired by Purchaser on the same or
similar conditions as such employees were employed by Seller.
d. CONSENTS. Purchaser hereby acknowledges that, to the extent
required by the Contracts, Leases and Permits, Seller has not
and will not obtain such third party's consent to the
assignment of the Contracts, Leases and Permits, including
without limitation any consents required pursuant to Medicare,
the State of Illinois or the Federal government, prior to the
Closing Date. To the extent it deems necessary, Purchaser
shall use its commercially reasonable best efforts to obtain
such third party's consent to the assignment of the Contracts,
Leases and Permits, as the case may be, and Seller hereby
agrees to cooperate with Purchaser and use commercially
reasonable best efforts to assist Purchaser in obtaining such
consent.
8. CLOSING. Subject to the satisfaction of the conditions set forth
herein, the closing (the "Closing") of the transactions contemplated
by, and described in, this Agreement with respect to the transfer and
sale of the Acquired Assets will take place on December 13, 2002 (the
"Closing Date") at 10:00 a.m. at Seller's offices, or on anther date,
or at another time or location as is mutually agreed upon by Seller and
Purchaser.
a. DELIVERIES OF SELLER AT CLOSING. Seller shall deliver the
following at Closing:
i. such bills of sale, assignments and other instruments
of transfer required to effectively transfer and
assign good and marketable title to all of the
Acquired Assets to Purchaser in accordance with this
Agreement;
ii. copies of resolutions duly adopted by the managers
and members of Seller approving this Agreement and
the transactions contemplated hereby; and
iv. such other documents and instruments as may be
reasonably requested and satisfactory to Purchaser
and its counsel in connection with the Seller's
satisfaction of each of its obligations hereunder.
b. DELIVERIES OF PURCHASER AT CLOSING. Purchaser shall deliver or
cause to be delivered the following at Closing:
i. the Note, in accordance with Section 3 hereof;
ii. that certain Guaranty, dated as of the Closing Date,
executed by Miracor Diagnostics, Inc., a Utah
corporation ("Guarantor"), in substantially the form
of Exhibit B attached hereto;
iii. an executed copy of the lease for the real property
located at 000 X. Xx. Xxxxxxx Xxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxxxxxx 00000 (the "Leased Premises") by
Purchaser and landlord;
iv. copies of resolutions duly adopted by the directors
and shareholders of Purchaser and Guarantor,
approving execution and delivery of this Agreement,
the Note and the Guaranty, as the case may be, and
the transactions contemplated hereby and thereby;
v. evidence of insurance on the Collateral (as defined
in the Note) in form, substance and amounts and with
such insurance companies reasonably acceptable to
Lender, and any insurance policies issued in
connection with the above shall contain endorsements
which name Lender as additional insured and lender
loss payee, as its interest may appear, with respect
to all of the Collateral; and
vi. such other documents and instruments as may be
reasonably requested and satisfactory to Seller and
its counsel in connection with Purchaser's
satisfaction of his obligations hereunder.
9. INDEMNIFICATION; CLAIM PROCEDURES; LIMITATION.
a. INDEMNIFICATION BY SELLER. Seller agrees to defend, indemnify
and hold Purchaser and its managers, members, employees,
agents (including its accountants and attorneys), legal
representatives, successors and assigns, harmless of, from and
against any loss, claim, damage, liability, penalty or other
cost or expense (including reasonable attorneys' fees and
costs) incurred or sustained by any of them, at any time, on
account of or relating to (i) any material misrepresentation
by Seller hereunder, or the breach by Seller of any term,
warranty, covenant, or agreement contained in this Agreement
or other document delivered pursuant hereto, and (ii) any
amount by which the aggregate principal amount of the Assumed
Liabilities (excluding the Leased Premises) exceeds $30,000.
b. INDEMNIFICATION BY PURCHASER. Purchaser hereby agrees to
defend, indemnify and hold Seller and Seller's managers,
members, officers, directors, shareholders, employees, agents
(including its accountants and attorneys), legal
representatives, affiliated entities, successors and assigns,
harmless of, from and against any loss, claim, damage,
liability, penalty or other cost or expense (including
reasonable attorneys' fees and costs) incurred or sustained by
any of them, at any time, on account of or relating to any
material misrepresentation by Purchaser hereunder, or the
breach by Purchaser of any term, warranty, covenant, or
agreement contained in this Agreement or other document
delivered pursuant hereto;
c. CLAIM PROCEDURE. If any claim is asserted after the Closing
Date by a party claiming a right of indemnification pursuant
to Section 9 (an "Indemnified Party") against a party
obligated to provide indemnification under the provisions of
this Section 9 (the "Indemnitor"), an Indemnified Party shall
promptly notify the Indemnitor in writing of such claim and
the Indemnitor shall thereafter undertake the defense of such
claim, with counsel acceptable to the Indemnified Party, which
will not be unreasonably withheld. If the Indemnitor does not
promptly undertake the defense of any claim hereunder, then an
Indemnified Party may undertake the defense of such claim
itself, with counsel of its or his own choosing, and the
Indemnitor shall reimburse the Indemnified Party for all costs
and expenses, including court costs and reasonable attorneys
fees, incurred by such Indemnified Party in defending and
resolving such claim, which shall be reimbursed from time to
time upon the Indemnified Party giving the Indemnitor an
invoice for the same. Both parties agree to provide the other
party such assistance as the other party may reasonably
request in order to defend, settle or compromise any claim
hereunder, and neither party shall settle or compromise any
claim under this Section without the consent of the other
party, which consent shall not be unreasonably withheld.
d. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and obligations
contained herein shall survive the execution, delivery and
Closing hereof and shall remain in full force and effect for a
period of one (1) year after the Closing Date.
10. MISCELLANEOUS.
a. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of Seller and Purchaser, their respective
heirs, personal representatives, successors and assigns.
b. ASSIGNABILITY. This Agreement shall not be assigned by
Purchaser without the prior written consent of Seller, which
consent shall not be unreasonably withheld. Seller may assign
this Agreement upon notice to Purchaser to any party that
controls, is controlled by or is under common control with
Seller.
c. NOTICES. All notices and communications required or permitted
to be given pursuant to this Agreement shall be in writing and
shall be deemed effectively given in all respects: (i) when
received, if manually delivered; (ii) when delivered on the
date indicated on a return receipt, if posted by either
registered or certified U.S. Mail, return receipt requested,
or by a next day delivery service which maintains records of
the time, place and recipient of delivery; or (iii) upon
delivery as reflected in the confirmation if sent by confirmed
facsimile transmission, and in each case if directed to the
party at the address and/or facsimile transmission number set
forth below, or to such other address or facsimile
transmission designated by any party in accordance with this
Section 9.
If to Seller to: If to Purchaser to:
--------------------------------------------------------------
New View Diagnostics, L.L.C. Vision Diagnostics, Inc.
c/o MarCap Corporation c/o Miracor Diagnostics, Inc.
00 Xxxxx Xxxxxx Xxxxx 0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000 Xxxxx 000
Xxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
Fax No. (000) 000-0000 Fax No. (000) 000-0000
No. ___________________ ______________________
Attn: General Manager Attn: Xxxxxx Xxxxxxxxx
--------------------------------------------------------------
With a copy to (which copy alone shall not constitute notice
under this Agreement):
Xxxxxx X. Xxxx, Esq.
Vice President and General Counsel
The Xxxxxx Group, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
d. AMENDMENTS. No modifications or amendments of this Agreement
shall be effective unless made in writing and signed by a duly
authorized representative of both Seller and Purchaser.
e. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Illinois, without
regard to the conflicts of laws rules thereof.
f. COUNTERPARTS; FACSIMILE. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of
this Agreement.
g. ENTIRE AGREEMENT. This Agreement, together with the Exhibits
attached hereto, embodies the entire agreement and
understanding between the parties hereto and supersedes all
prior and contemporaneous oral or written agreements and
understandings relating to the subject matter hereof. No
statement, representation, warranty, covenant or agreement of
any kind not expressly set forth in this Agreement shall
affect, or be used to interpret, change or restrict, the
express terms and provisions of this Agreement.
h. WAIVERS AND CONSENTS. The terms and provisions of this
Agreement and any right or remedy of any party hereunder may
be waived or consent for the departure therefrom granted only
by written document executed by the party entitled to the
benefits of such terms or provisions of this Agreement. Each
such waiver or consent shall be effective only in the specific
instance and for the purpose for which it was given, and shall
not constitute a continuing waiver or consent.
i. HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of
reference only and shall in no way modify or affect the
meaning or construction of any of the terms or provisions
hereof.
j. EXPENSES. Each of the parties hereto shall pay its or his own
fees and expenses (including the fees of any attorneys,
accountants, appraisers or others engaged by such party) in
connection with this Agreement and the transactions
contemplated hereby.
k. RECITALS. The recitals set forth at the beginning of this
Agreement are an integral part of the terms of this Agreement
and are hereby incorporated into the body of this Agreement by
this reference thereto.
l. SCHEDULES AND EXHIBITS. The Schedules and Exhibits referenced
herein are attached hereto, made apart hereof, and
incorporated herein by this reference.
m. PLURALITY. Whenever required by the context, the singular will
include the Plural and vice versa.
n. ATTORNEYS' FEES. If either party shall bring any action
against the other under this Agreement, the prevailing party
in such action shall be entitled to reimbursement of all court
costs and reasonable attorneys' fees incurred by such party in
enforcing its rights hereunder.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first set forth above.
SELLER: PURCHASER:
NEW VIEW DIAGNOSTICS, L.L.C. VISION DIAGNOSTICS, INC.
By: MEDCAP CORPORATION
Its: Sole Member
By: /s/ By: /s/
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Title: Title:
EXHIBITS AND SCHEDULES
Exhibit A: The Note
Exhibit B: The Guaranty
