EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
BY AND AMONG
CAPRIUS, INC.,
STRAX INSTITUTE, INC.,
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AND
EASTERN MEDICAL TECHNOLOGIES, INC.
SEPTEMBER 30, 2003
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
September 30, 2003 by and among Caprius, Inc. ("Caprius"), a Delaware
corporation, Strax Institute, Inc., a Florida corporation ("New Strax"), Eastern
Medical Technologies, Inc., a Delaware corporation ("EMT"), and ▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ solely with respect to Sections 5.1 and 5.2. Caprius, New Strax,
and EMT, are referred to individually or collectively herein as a "Party" or
"Parties".
WHEREAS, Caprius operated, through a division, a mammography and bone
densitometry business known as the Strax Institute ("Business");
WHEREAS, Caprius owns all of the outstanding capital stock of New Strax and
has conveyed the assets and liabilities of the Business to New Strax; and
WHEREAS, EMT has agreed to purchase from Caprius, and Caprius has agreed to
sell to EMT, all of the outstanding capital stock of New Strax in return for
cash and a promissory note (the "Transaction").
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized words
and terms have the referenced meanings:
"Adverse Consequences" means all injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in settlement,
liabilities, obligations, taxes, liens, losses, expenses, and fees actually
sustained by a Party or imposed thereon.
"Affiliate" shall have the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of Code
Section 1504(a) or any similar group defined under a similar provision of state,
local, or foreign law.
"Area" has the meaning set forth in Section 5.1(a).
"Balloon Payment" shall mean an amount equal to $41,500.
"Claim" shall mean any claims, demands, actions, administrative or
arbitration proceedings, damages, losses including loss of value, obligations,
allegations, Liabilities, judgments, encumbrances, penalties, costs, and
expenses, including reasonable attorneys' fees and expenses that a Party is or
may be liable for or incurs in investigating or pursuing any of the foregoing.
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall have the meaning set forth in Section 2.2.
"Closing Date Balance Sheet" means the balance sheet of New Strax prepared
as of the Closing Date and after conveyance of the assets of the Strax Division
and assumption of its liabilities.
"COBRA" means the requirements of Part 6 of Subtitle B of Title I of ERISA
and Code Section 4980B and of any similar state law.
"Code" means the Internal Revenue Code of 1986, as amended and the
Regulations thereunder.
"Common Stock" means shares of common stock of New Strax.
"Confidential Information" means any information concerning the businesses
and affairs of Caprius, New Strax, or EMT, as the case may be, including their
respective Subsidiaries, if any, that is not already generally available to the
public and shall include, but shall not be limited to, trade secrets, processes,
policies, procedures, techniques, designs, drawings, know-how, show-how,
technical information, specifications, computer software (including, but not
limited to, computer programs developed, improved or modified by a Party or on
behalf of a Party for use in a Party's business, and source code), information
and data relating to the development, research, testing, costs, marketing and
uses of a Party's services, budgets and strategic plans, and the identity and
special needs of clients for a Party's services, databases, data, all technology
relating to a Party's business, systems, methods of operation, client lists,
client information, solicitation leads, marketing and advertising materials,
methods and manuals and forms, all of which pertain to the activities or
operations of a Party, including Confidential Information received from a
Party's Subsidiaries and Affiliates.
"Consideration" means the purchase price.
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"Directly or Indirectly" shall include, but not be limited to, (i) acting
as an agent, officer, director, representative, consultant, independent
contractor, or employee of any Person, or (ii) participating as an owner,
partner, limited partner, member, joint venturer, material creditor or
shareholder (except as a shareholder holding less than five percent interest in
a corporation or entity whose shares are traded on a national securities
exchange or on the Nasdaq Stock Market unless Caprius controls such corporation
or entity, either alone or with others).
"Employee Benefit Plan" means any employee benefit plan (as such term is in
ERISA Section 3(3)) and any other employee benefit plan, program or arrangement
of any kind set forth in Section 3.10.
"Environmental, Health, and Safety Requirements" shall mean all federal,
state, local and foreign statutes, regulations, ordinances and other provisions
having the force or effect of law, all judicial and administrative orders and
determinations, all contractual obligations and all common law concerning public
health and safety, worker health and safety, and pollution or protection of the
environment, including without limitation all those relating to the presence,
use, production, generation, handling, transportation, treatment, storage,
disposal, distribution, labeling, testing, processing, discharge, release,
threatened release, control, or cleanup of any hazardous materials, substances
or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation, each as amended and as now or
hereafter in effect.
"ERISA" shall mean Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FBCA" means the Florida Business Corporation Act, as amended.
"Financial Statements" has the meaning set forth in Section 3.6.
"GAAP" means United States Generally Accepted Accounting Principles as in
effect from time to time.
"Governmental Entity" has the meaning set forth in Section 3.3.
"Indemnified Party" has the meaning set forth in Section 6.3.
"Indemnifying Party" has the meaning set forth in Section 6.3.
"Intellectual Property" shall mean to include, but not be limited to trade
names, fictitious names, trademarks, trade dress, copyrights, moral rights,
patents, protected software and databases, and other types of intellectual
property protected under United States state or federal law, all as they relate
to the business of the Strax Institute or New Strax.
"IRS" shall mean the United States Internal Revenue Service.
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"Knowledge" means actual knowledge after reasonable investigation of a
Party (and, except where apparent from the context, its Subsidiaries), its
officers, directors and employees having responsibility of a subject matter.
"Legal Provisions" has the meaning set forth in Section 3.7.
"Liability" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"Material Adverse Effect" means, when used with respect to New Strax, any
change or effect that is materially adverse to the business, assets,
liabilities, results of operations, condition (financial or otherwise),
management or future prospects of such Party or Parties. More specifically and
without limiting the prior sentence, any reduction of 10% or more of any of the
revenues, or increase in expenses, for the nine months ended June 30, 2003
compared to the nine months ended June 30, 2002, shall be considered to have a
Material Adverse Effect.
"Measuring Period" has the meaning set forth in Section 5.1(a).
"Note" has the meaning set forth in Section 2.4.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" shall have the meaning set forth in the preface above.
"Permits" has the meaning set forth in Section 3.7.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, entity, a trust, a
joint venture, an unincorporated organization, or a Governmental Entity (or any
department, agency, or political subdivision thereof).
"Real Property" means the leasehold premises located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
"Regulations" means the rules and regulations under the Code.
"SEC" means the United States Securities and Exchange Commission.
"SEC Documents" means any registration statement, report or other document
filed with or furnished to the SEC by Caprius.
"Securities Act" means the Securities Act of 1933, as amended.
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"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (i) mechanic's, materialmen's, landlord's
and similar liens, (ii) liens for taxes not yet due and payable or for Taxes
that the taxpayer is contesting in good faith through appropriate proceedings,
(iii) purchase money liens and liens securing rental payments under capital
lease arrangements, and (iv) other liens arising in the Ordinary Course of
Business and not incurred in connection with the borrowing of money.
"Strax Institute" or the "Strax Division" both mean the division of Caprius
which operates a breast care center in Lauderhill, Florida.
"Subsidiary" means any corporation, limited liability company, partnership
or entity with respect to which a specified Person (or a Subsidiary thereof)
owns a majority of the Common Stock or equity interests or has the power to vote
or direct the voting of sufficient securities to elect a majority of the
directors or similar persons or entities.
"Tax" means any federal, state, local or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Section 59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, Real Property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Transaction" shall have the meaning set forth in the last WHEREAS clause.
2. BASIC TRANSACTIONS.
2.1 Purchase of New Strax Capital Stock. At the Closing, Caprius shall sell
and convey, and EMT shall purchase, all of the capital stock of New Strax in
exchange for the purchase price set forth in Section 2.3 (the "Consideration").
2.2 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
P.A., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, commencing at
10:00 a.m. local time on the first business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to actions
the respective Parties shall take at the Closing itself) or such place and other
date as the Parties may mutually determine (the "Closing Date").
2.3 Purchase Price and Possible Adjustment to Purchase Price. In exchange
for the capital stock of New Strax, EMT shall pay the result of the following
(the "Net Purchase Price"): $400,000 minus the accounts payable related to the
Strax Institute calculated as of the Closing Date which accounts payable are
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anticipated to be approximately $110,000, plus or minus any other charges,
setoffs or adjustments arising under this Agreement, if any.
2.4 Payment of Purchase Price. On the Closing Date, EMT shall pay 50% of
the Net Purchase Price, less an $18,000 cash credit, by wire transfer to an
account that Caprius designates. The remaining 50% of the Net Purchase Price
shall be evidenced by a note (the "Note") which shall be secured by the accounts
receivables of New Strax. The Note shall not bear interest and shall be in the
form attached hereto as Exhibit 2.4 hereto.
2.5 Transitional Management Services Agreement. Caprius and New Strax shall
enter into, as of the Closing Date, a transitional management services agreement
in the form attached hereto as Exhibit A.
2.6 Accounts Receivable. The accounts receivable related to the Strax
Institute which are in existence as of the Closing Date (the "Closing Date
Accounts Receivable") shall be allocated between Caprius and New Strax as
follows. The first $110,000 of the Closing Date Accounts Receivable collected
shall belong to New Strax. The next $70,000 of the Closing Date Accounts
Receivable collected shall belong to Caprius and shall be remitted to Caprius by
New Strax as collected. If collections of the Closing Date Accounts Receivable
exceed $180,000 ("Threshold"), amounts in excess of such Threshold shall be
divided equally among Caprius and New Strax. New Strax will engage in good
faith, commercially reasonable efforts to continue to collect any uncollected
Closing Date Accounts Receivable following the Closing Date. For collecting any
amounts above the Threshold, Caprius shall pay to New Strax the sum of 8% of the
amounts collected. Such fee shall be set off from the amounts in excess of the
Threshold otherwise due Caprius under this paragraph.
2.7 Bank Account. The funds in the Strax Institute bank account, up to, but
not exceeding $7,500, held in the name of Caprius, Inc. d/b/a Strax Institute,
at Bank of America, N.A, P.O. Box 25118, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, account number
003604095107, as of September 30, 2003, as determined in the reconciliation for
such month, shall be the property of EMT. Any amounts in such bank account in
excess of $7,500 shall remain the property of Caprius.
3. REPRESENTATIONS AND WARRANTIES OF CAPRIUS AND NEW STRAX. Caprius and/or
New Strax, as applicable from the context, represent and warrant to EMT that the
statements contained in this Section 3 are correct and complete as of the date
of this Agreement, and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this Article 3).
3.1 Organization, Qualification, and Power. New Strax is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida. New Strax is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required, except where the lack of such qualification would not have a Material
Adverse Effect on New Strax. New Strax is qualified to do business in those
jurisdictions listed on Schedule 3.1 and New Strax has full power and authority
to carry on the businesses in which it is engaged and to own and use the
properties owned and used by them. New Strax is a newly formed Subsidiary of
Caprius and other than the transactions contemplated in this Agreement has not
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conducted any operations or entered into any transactions. Each of Caprius and
New Strax has all requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. New Strax has delivered to
EMT a true and correct copy of its articles of incorporation and bylaws, each as
amended. New Strax has no Subsidiaries. New Strax is not in default under or in
violation of any of the provisions of its articles of incorporation or bylaws,
each as amended.
3.2 Capitalization. The entire authorized capital stock of New Strax
consists of 10,000 shares of Common Stock of which 10,000 shares are issued and
outstanding. All of the issued and outstanding shares of New Strax Common Stock
have been duly authorized and are validly issued, fully paid, and nonassessable
and are free and clear of any Security Interests, and are not subject to
preemptive rights or rights of first refusal created by statute, the articles of
incorporation or bylaws, each as amended, of New Strax or any agreement to which
Caprius or New Strax is a party or by which either is bound. There are no
outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable
or convertible securities or other commitments or agreements of any character
relating to the issued or unissued capital stock or other securities of New
Strax, or otherwise obligating New Strax to issue, transfer, sell, purchase,
redeem or otherwise acquire any such securities. There are no outstanding or
authorized performance units, stock appreciation, phantom stock, profit
participation, or similar rights with respect to New Strax. There are no voting
trusts or proxies relating to the capital stock of New Strax between or among
any of its shareholders. All outstanding shares of New Strax Common Stock were
issued in compliance with all applicable federal and state securities laws.
3.3 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, shall
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any federal, state and
foreign court, commission, governmental body, regulatory or administrative
agency, authority or tribunal (each a "Governmental Entity") to which New Strax
is subject or any provision of its certificate or articles of incorporation or
bylaws, or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, mortgage, note, lease, license, instrument or other
arrangement to which either Caprius or New Strax is a party or by which either
is bound or to which any of either's assets is subject (or result in the
imposition of any Security Interest upon any of either's assets), except where
the violation, conflict, breach, default, acceleration, termination,
modification, cancellation, or failure to give notice would not have a Material
Adverse Effect on Caprius or New Strax or the ability of Caprius or New Strax to
consummate the transactions contemplated by this Agreement. Neither Caprius nor
New Strax need give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any Governmental Entity in order for
Caprius and New Strax to consummate the transactions contemplated by this
Agreement.
3.4 Authorization of Transaction. Caprius and New Strax have full power and
authority to execute and deliver this Agreement and to perform their obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of Caprius and New Strax, enforceable in accordance with its terms and
conditions. Caprius and New Strax need not give any notice to, make any filing
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with, or obtain any authorization, consent, or approval of any government or
Governmental Entity in order to consummate the transactions contemplated by this
Agreement.
3.5 Title to Assets. New Strax is the sole record and beneficial owner or
lessee, as the case may be, of all the assets reflected on its financial
statements (or those of the Strax Division), and used by it (or by the Strax
Division) in the Ordinary Course of Business, free and clear of all Security
Interests. In particular, without limiting the generality of the foregoing,
there has been no assignment, subletting or granting of any license or in
respect of New Strax's assets (or those of the Strax Division) or any granting
of any agreement or right capable of becoming an agreement or right for the
purchase of any such assets other than pursuant to the provisions of this
Agreement.
3.6 Financial Statements. The audited financial statements of the Strax
Institute (including the related notes and schedules) for the two years ended
September 30, 2002, have been prepared in accordance with GAAP and Regulation
S-X applied on a consistent basis throughout the periods covered thereby, and
fairly present the financial condition of the Strax Institute as of the
indicated dates and the results of operations of the Strax Institute for the
indicated periods (subject, in the case of unaudited statements, to normal and
recurring year-end adjustments), complied as to form in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto as of their respective dates and are
consistent with the books and records of Caprius and New Strax. The audited
financial statements, the unaudited nine month income statement (derived from
the Form 10-QSB filed by Caprius with the SEC) and the Closing Date Balance
Sheet are referred to in this Agreement as the "Financial Statements". Except as
set forth in the Closing Date Balance Sheet delivered, New Strax has no
liabilities or obligations (whether accrued, absolute, contingent or otherwise)
(i) of a nature required to be disclosed on a balance sheet or in the related
notes to Financial Statements prepared in accordance with GAAP or (ii) which,
individually or in the aggregate, have had or could reasonably be expected to
have a Material Adverse Effect on New Strax. The Financial Statements as of
their respective dates did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading.
3.7 Compliance with Laws. (a) To its Knowledge, except as disclosed on
Schedule 3.7, Caprius is, and has been, in compliance with all statutes, laws,
ordinances, rules, regulations, judgments, orders and decrees with respect to
the Strax Institute (including, but not limited to those applicable to
mammography scanning as presently conducted by Caprius or New Strax) of any
Governmental Entity applicable to each of their properties or other assets or
their business or operations (collectively, "Legal Provisions"), except for
instances of noncompliance or possible noncompliance that individually or in the
aggregate have not had and could not reasonably be expected to have a Material
Adverse Effect on the Strax Institute or New Strax. Except as listed in Schedule
3.7, New Strax has in effect all approvals, including all authorizations,
certificates, filings, franchises, licenses, notices, permits easements,
variances, exceptions, consents, certificates, approvals, authorizations, orders
and rights of or with all Governmental Entities, with respect to the Strax
Institute (collectively, "Permits"), necessary for New Strax to own, lease or
operate its properties and assets and to carry on its business and operations as
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presently conducted, except for failures to have in effect such Permits that
individually or in the aggregate have not had and could not reasonably be
expected to have a Material Adverse Effect on the Strax Institute or New Strax.
To Caprius's knowledge, there has occurred no default under, or violation of,
any such Permit, except individually or in the aggregate as has not had and
could not reasonably be expected to have a Material Adverse Effect on the Strax
Institute or New Strax.
(b) To the Knowledge of Caprius or New Strax, no action, demand,
inquiry or investigation by any Governmental Entity and no suit, action or
proceeding by any other Person, in each case with respect to the Strax Institute
or New Strax or any of their properties or other assets under any Legal
Provisions is pending or, to the Knowledge of Caprius or New Strax threatened,
other than, in each case, those in which the outcome individually or in the
aggregate has not had and could not reasonably be expected to have a Material
Adverse Effect on the Strax Medical Insitute or New Strax.
(c) To the Knowledge of Caprius and New Strax, the Strax Institute has
not, nor have any of its officers, employees, agents or Affiliates, made an
untrue statement of material fact or fraudulent statement to any Governmental
Entity, failed to disclose a material fact required to be disclosed to any
Governmental Entity, or committed an act, made a statement, or failed to make a
statement that could reasonably be expected to provide a basis for any
Governmental Entity to commence an action against Caprius, the Strax Institute
or New Strax, insofar as such action arises from or relates to the Strax
Institute.
(d) Except as listed in Schedule 3.7, Caprius has made available to
EMT copies of any and all notices of inspectional observations, establishment
inspection reports, warning letters and any other documents received from or
issued by a Governmental Entity within the last three years that indicate or
suggest lack of compliance with regulatory requirements by Caprius with respect
to the Strax Institute.
(e) Intentionally omitted
(f) Except as listed in Schedule 3.7, Caprius has not received any
written notice that any Governmental Entity has commenced or threatened to
initiate (i) any action, inquiry, investigation, or similar informal action, or
civil lawsuit, or administrative proceedings against Caprius, related to the
Strax Institute, (ii) any action to enjoin any aspect of the business of the
Strax Institute or (iii) any civil penalty, injunction, seizure or criminal
action against it or Caprius, related to the Strax Medical Insititute.
3.8 Certain Business Relationships With Caprius. Except as disclosed on
Schedule 3.8, or in the Caprius SEC Documents, Caprius and its Affiliates have
not, Directly or Indirectly, been involved in any business arrangement or
conducted any business with the Strax Institute, except as provided for herein
this Agreement.
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3.9 Employment Matters.
(a) Schedule 3.9 sets forth a complete list of the employees of the
Strax Institute or New Strax, together with their titles, service dates and
material terms of employment. New Strax shall bear any Liability to all
employees for any accrued but unpaid employee benefits including, but not
limited to, vacation leave, sick leave and personal leave. Except as disclosed
on Schedule 3.9, no employee is on short-term or long-term disability leave,
family leave or military leave.
(b) Except for the employment agreements listed on Schedule 3.9 there
are no employment agreements which are not terminable, nor would the Strax
Institute or New Strax, upon termination of any employee have any Liability to
pay such employee any severance or other compensation except for services
actually rendered through the date of termination.
(c) No person has alleged that Caprius, with respect to the Strax
Institute or New Strax, has committed any act involving: (i) sexual misconduct
or harassment in violation of Title VII of the Civil Rights Act of 1964 or
amounting to an invasion of privacy under Florida law or (ii) discrimination in
violation of the United States and/or Florida Constitutions or legislation.
3.10 Employee Benefit Plans. Schedule 3.10 lists each Employee Benefit Plan
that Caprius, with respect to the Strax Institute, maintains, to which the Strax
Institute contributes or has any obligation to contribute.
3.11 Tangible Assets. The Strax Institute or New Strax owns or leases all
fixtures, machinery, equipment, and other tangible assets necessary for the
conduct of the Strax Institute's or New Strax's business as presently conducted.
3.12 Tax Matters. EMT shall have no Liability for Taxes arising from any
action, or inaction, of Caprius or New Strax, that occurs, or should have
occurred, prior to the Closing Date with respect to the Strax Institute, as of
the most recent practicable date.
3.13 Real Property. Schedule 3.13 lists and describes briefly all Real
Property that Caprius or New Strax leases in connection with the Strax
Institute. With respect to each such parcel of leased Real Property:
(a) The leases reflected in the attached Schedule 3.13 list and
describe any and all leases (the "Leases") whereby Caprius, as related to the
Strax Institute, or New Strax are either tenant or landlord. With respect to the
Leases, Caprius and New Strax hereby covenant as follows:
(b) All of the Leases are either: (a) in writing, and true and correct
copies of which have been delivered to EMT or are (b) cancelable and may be
terminated by the tenant or the landlord by providing 15 days prior written
notice.
(c) All of the Leases are in full force and effect in accordance with
the respective terms, without modifications or amendment, except as specified in
this Agreement, and without any default, event of default, claim of default on
the part of any party thereof, and no notice, written or oral, of termination or
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intent to terminate has been issued or received. The Leases do not contain any
right of first refusal or similar right or option to purchase the Leased
property.
(d) Except as listed in Schedule 3.13, There are no leases, tenancies,
contracts, license agreements, or other occupancies binding on Caprius with
regard to the Strax Institute or New Strax.
(e) Except as specified in the Leases, there are no prepaid rentals,
rent concessions or security deposits under any of the Leases.
(f) No written or oral undertakings, inducements, representations,
warranties, agreements, contracts, or understandings, have been made, given, or
entered into by any party to the Leases which are not reflected in the Leases,
and no party to the Leases have any rights respecting the Leases other than as
set forth in the Leases.
(g) The appropriate party under the Leases has completed in all
respects and paid for in full all improvements, alterations, installations,
decorations or repairs required to be performed by such party pursuant to the
Leases, and all such work has been accepted by the other party.
(h) Neither the Leases nor the rents or other amounts payable
thereunder have been assigned, pledged or encumbered by Caprius, with regard to
the Strax Institute, or by New Strax.
(i) There are no brokerage or leasing commissions or other finders or
agents fees payable or potentially payable in connection with any of the Leases
or any amendments or renewals thereof or increases or other changes in space
with respect thereto.
3.14 Environmental, Health, and Safety Matters.
(a) To its Knowledge, Caprius and has complied and is in compliance
with all Environmental, Health, and Safety Requirements relating to the Strax
Institute.
(b) Without limiting the generality of the foregoing, Caprius has
obtained and complied with, and are in compliance with, all Permits, that are
required pursuant to Environmental, Health, and Safety Requirements for the
occupation of the Strax Institute's facilities and the operation of its
business; a list of all such Permits, is set forth on the attached Schedule
3.14.2.
(c) Neither Caprius, nor the Strax Institute have received any written
or oral notice, report or other information regarding any actual or alleged
violation of Environmental, Health, and Safety Requirements, or any Liabilities
or potential Liabilities (whether accrued, absolute, contingent, unliquidated or
otherwise relating to the Strax Institute), including any investigatory,
remedial or corrective obligations, relating to the Strax Institute or its
facilities arising under Environmental, Health, and Safety Requirements.
11
3.15 Other Disclosures. Schedule 3.15 contains a true and correct list: (a)
relating to indebtedness for money borrowed by or on behalf of the Strax
Institute excluding trade credit or payables arising in the Ordinary Course of
Business, (b) creating any guarantee arrangement or other agreement to be liable
for the obligations of a Person, (c) providing for payment or the receipt of
payment or the sale of purchase or exchange of goods or services worth in excess
of $10,000 or (d) containing any provisions or covenant materially limiting the
ability of Caprius, the Strax Institute or any affiliate or employee, to engage
in business or compete with or to obtain products or services from any Person or
materially limiting the ability of any Person to provide products or services to
the Strax Institute or New Strax.
3.16 Undisclosed Liabilities. To its knowledge, Caprius, with respect to
the Strax Institute, and New Strax does not have any obligations or Liabilities
(contingent or otherwise), except obligations and Liabilities (a) that are fully
accrued or provided for in all material respects in the Financial Statements,
(b) that were incurred after June 30, 2003, in the Ordinary Course of Business
(none of which results from, arises out of, relates to, is in the nature of, or
was caused by any breach of contract, breach of warranty, tort, infringement, or
violation of law), or (c) that either individually or in the aggregate would not
have a Material Adverse Effect on the Strax Institute or New Strax.
3.17 Litigation. Except as disclosed on Schedule 3.17, to the Knowledge of
Caprius and New Strax, they are not (a) subject to any outstanding inquiry,
investigation, injunction, judgment, order, decree, ruling, or charge relating
to the Strax Institute or (b) a party to or, to the Knowledge of Caprius or New
Strax, threatened to be made a party to, any action, suit, proceeding, or
hearing, inquiry or investigation of, in, or before any Government Entity
relating to the Strax Institute or New Strax.
3.18 Events Subsequent to September 30, 2002. Except as disclosed on
Schedule 3.18, since September 30, 2002, there has not been any change or event
which had or could have a Material Adverse Effect on Caprius relating to the
Strax Institute or on New Strax. Without limiting the generality of the
foregoing, except as otherwise provided herein, since that date:
(a) Caprius has not sold, leased, transferred, or assigned any of its
assets, tangible or intangible, relating to the Strax Institute including the
Real Property, other than for a fair consideration in the Ordinary Course of
Business;
(b) Caprius has not entered into any agreement, contract, lease, or
license (or series of related agreements, contracts, leases, and licenses
relating to the Strax Institute either involving more than $10,000 or outside
the Ordinary Course of Business;
(c) Caprius has not accelerated, terminated, modified, or cancelled
any agreement, contract, lease, or license (or series of related agreements,
contracts, leases, and licenses) relating to the Strax Institute involving more
than $10,000 to which it is a party or by which any of them is bound, and no
patient of the Strax Institute has communicated to Caprius or the Strax
Institute that there may be a dispute relating to the performance of work
performed by the Strax Institute or has requested or suggested that any amount
paid or payable to Caprius involving $10,000 or more be refunded or reduced;
12
(d) Caprius has not imposed any Security Interest upon any of its
assets, tangible or intangible, relating to the Strax Institute including the
Real Property, tangible or intangible;
(e) Caprius has not made or committed to make any capital expenditure
(or series of related capital expenditures) relating to the Strax Institute
either involving more than $10,000 or outside the Ordinary Course of Business;
(f) Caprius has not made any capital investment in, any loan to, or
any acquisition of the securities or assets of, any other Person (or series of
related capital investments, loans, and acquisitions) relating to a business
similar to the Strax Institute either involving more than $10,000 or outside the
Ordinary Course of Business;
(g) Caprius has not issued any note, bond, or other debt security or
created, incurred, assumed, or guaranteed any indebtedness for borrowed money or
capitalized lease obligation relating to the Strax Institute either involving
more than $5,000 singly or $10,000 in the aggregate;
(h) Caprius has not delayed or postponed the payment of accounts
payable and other Liabilities relating to the Strax Institute outside the
Ordinary Course of Business;
(i) Caprius has not cancelled, compromised, waived, or released any
right or claim (or series of related rights and claims) relating to the Strax
Institute either involving more than $10,000 or outside the Ordinary Course of
Business;
(j) Caprius has not granted any license or sublicense of any rights
under or with respect to any Intellectual Property relating to the Strax
Institute;
(k) There has been no change made or authorized in the articles of
incorporation or bylaws of New Strax;
(l) Caprius has not experienced any damage, destruction, or loss
(whether or not covered by insurance) to the property of the Strax Institute;
(m) Caprius has not made any loan to, or entered into any other
transaction with, any employee of the Strax Institute or New Strax outside the
Ordinary Course of Business;
(n) Caprius has not entered into any employment contract or collective
bargaining agreement, written or oral, or modified the terms of any existing
such contract or agreement insofar as any of these relate to the Strax
Institute;
(o) Caprius has not granted any increase in the base compensation of
any of the employees of the Strax Institute or New Strax;
(p) Caprius has not adopted, amended, modified, or terminated any
bonus, profit-sharing, incentive, severance, or other plan, contract, or
commitment for the benefit of any employees of the Strax Institute or New Strax
(or taken any such action with respect to any other Employee Benefit Plan);
(q) Caprius has not made any other change in employment terms for any
employees of the Strax Institute or New Strax outside the Ordinary Course of
Business;
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(r) Caprius has not committed to any of the foregoing; and
(s) New Strax has not engaged in any of the foregoing activities.
3.19 Major Contracts. Schedule 3.19 contains a list of all material written
contracts related to the Strax Institute or New Strax. To the Knowledge of
Caprius and New Strax, no party to such agreements has any intention to: (a)
reduce the amount of business it does with the Strax Institute or New Strax
after the Transaction, (b) change its relationship with the Strax Institute or
New Strax, or (c) change the terms upon which it conducts business with the
Strax Institute or New Strax.
3.20 Brokers' Fees. Caprius and New Strax do not have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
3.21 Intellectual Property.
(a) Schedule 3.21 is a correct and complete list of all (i)
Intellectual Property material to the business of the Strax Institute or New
Strax, including the status of all patents, patent applications and registered
Intellectual Property (ii) trade, corporate and fictitious names used by the
Strax Institute or New Strax, (iii) computer software and databases created or
used by the Strax Institute or New Strax (other than mass marketed software with
a license fee of less than $1,000), (iv) material unregistered trademarks and
copyrights owned or presently used by the Strax Institute or New Strax and (v)
licenses and other rights granted by or to the Strax Institute or New Strax (or
for their use), in each case with respect to Intellectual Property.
(b) Caprius owns and upon transfer of the Strax Institute's assets to
New Strax, New Strax will own all right, title and interest in and to, or has a
valid and enforceable license to use, all material Intellectual Property
necessary for the operation of the business as currently conducted and as
currently proposed to be conducted free and clear of any liens or adverse
claims.
3.22 Condition of Assets. To Caprius' knowledge, the fixed assets and Real
Property are free from defects (patent), have been maintained in accordance with
normal industry practice, are in good operating condition and repair (subject to
normal wear and tear), have been properly and regularly maintained and are
suitable for the purposes for which they are presently used.
3.23 No Third Party Option. There are no existing agreements, options,
commitments or rights with or to any Person to acquire any of the assets of
Caprius or any interest therein insofar as such assets relate to the Strax
Institute or New Strax.
3.24 Restrictive Covenants. Neither Caprius nor New Strax are a party to or
bound or affected by any commitment, contract or document containing any
covenant expressly limiting the freedom of the Strax Institute or New Strax to
14
compete in any line of business, acquire goods or services from any supplier,
sell goods or services to any patients or third party, or transfer or move any
of its operations. Neither Caprius nor New Strax are a party to or bound or
affected by any commitment, contract or document containing any covenant which
materially or adversely affects the business practices, operations or financial
condition or the continued operation of the business after the Closing as
presently carried out by the Strax Institute or New Strax.
3.25 Insurance. With respect to the Strax Institute, Caprius maintains such
policies of insurance, issued by responsible insurers licensed to do business in
Florida, as are appropriate to operations, property and assets, in such amounts
and against such risks as are customarily carried and insured against by owners
of comparable businesses, properties and assets. All such policies of insurance
are in full force and effect, and will be transferred to New Strax prior to the
Closing. Caprius is not in default, as to the payment of premiums or otherwise,
under the terms of any such policy. Schedule 3.25 sets forth a complete list of
all policies of insurance which Caprius maintains relating to the Strax
Institute and the particulars of such policies, including the name of the
insurer, the risk insured against, the amount of coverage and the amount of any
deductible and a summary of all claims under each such policy for the past two
years.
3.26 Professional Liability. During the past three years no patient or
other person has asserted any claim or made any contention that the Strax
Institute, any of its employees, independent contractors or agents has committed
any act or failed to take any action which has injured or may in the future
injure such patient or other person.
3.27 Disclosure. The representations and warranties contained in this
Article 3 do not contain any untrue statements of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Article 3 not misleading.
3.28 Leases. Attached as Schedule 3.28 is a list of the equipment which
will be leased to EMT by Caprius at the Closing. Caprius and EMT and New Strax
shall enter into a written lease pursuant to which EMT or New Strax shall pay to
Caprius in 36 equal monthly installments the sum of $ 1,536.65 for lease of the
equipment specified in Schedule 3.28, with the first payment to be made by EMT
or New Strax, as the case may be, on October 15, 2003. The payments under the
lease specified in Schedule 3.28 shall be guaranteed by ▇▇▇▇▇▇ ▇▇▇▇▇▇
personally. In the event of a default under such lease, the default rate shall
be 18%.
4. REPRESENTATIONS AND WARRANTIES OF EMT. EMT represents and warrants to
Caprius and New Strax that the statements contained in this Section 4 are
correct and complete as of the date of this Agreement and shall be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 4):
4.1 Organization, Qualification, and Power. EMT is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware. EMT is duly authorized to conduct business and is in good standing
under the laws of each jurisdiction where such qualification is required, except
where the lack of such qualification would not have a Material Adverse Effect on
EMT. EMT has all requisite power and authority to enter into this Agreement and
15
to consummate the transactions contemplated hereby. EMT does not, Directly or
Indirectly, own any Subsidiary.
4.2 Capitalization. The entire authorized capital stock of EMT consists of
60,000,000 shares, comprised of 50,000,000 shares of common stock, par value
$0.0001 and 10,000,000 shares of preferred stock.
4.3 Authorization of Transaction. The execution and delivery by EMT of this
Agreement and the consummation by EMT of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of EMT.
Upon execution and delivery of this Agreement by EMT, it shall constitute the
valid and binding obligation of EMT enforceable against it in accordance with
its terms.
4.4 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, shall
(a) violate or conflict with the certificate of incorporation or bylaws, each as
amended, of EMT, (b) violate any provision of law or any order or judgment of
any Governmental Entity, specifically applicable to EMT, (c) violate or result
in a breach of or (with due notice or lapse of time or both) a default under any
contract, loan agreement, mortgage, lease, security agreement, indenture, or
other agreement or instrument to which either of EMT is a party or by which it
is bound or to which any of its respective assets are subject (or result in the
imposition of any Security Interest upon any of its assets), except where the
violation, conflict, breach, default, acceleration, termination, modification,
cancellation, or failure to give notice would not have a Material Adverse Effect
on the ability of EMT to consummate the transactions contemplated by this
Agreement.
4.5 Recent Organization. EMT was organized in 2003 and has not conducted
any business except to sell its securities.
4.6 Disclosure. The representations and warranties contained in this
Article 4 do not contain any untrue statements of a material fact or omit to
state any material facts necessary in order to make the statements and
information contained in this Article 4 not misleading.
5. CERTAIN COVENANTS.
5.1 Covenant Not to Compete.
(a) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Caprius each covenant and agree
that for the period commencing with the Closing Date and ending five years from
such date (the "Measuring Period"), that each of them shall not, Directly or
Indirectly, own, manage, operate, finance, join, control, or participate in the
ownership, management, operation, finance or control of, or be connected with,
in any manner, any entity, business enterprise or operation engaged in
diagnostic services related to mammography and bone densitometry in Florida or
New Jersey (the "Area"), designing, providing, marketing, selling, or performing
such services.
(b) They covenant and agree that during the Measuring Period they
shall not, Directly or Indirectly, within the Area: (i) solicit business from
any Person which was a patient of the Strax Institute or; (ii) induce or attempt
16
to induce or influence any employee of EMT or any Affiliate to terminate his or
her employment with EMT or any Affiliate.
(c) They shall not, and shall not permit any of their Affiliates, to
own, manage, operate, join, control or participate in the ownership, management,
operation or control of or be connected in any manner with, Directly or
Indirectly, any business conducted under a name using the word "Strax", or any
similar name or any derivatives thereof, without the prior written consent of
EMT.
(d) They shall, and shall cause their Affiliates, to hold in
confidence and refrain from disclosing, publishing or making use of all
knowledge and information of a confidential nature relating to the business of
the Strax Institute and New Strax prior to the Closing Date, except knowledge
and information which (i) is or becomes generally available to the public other
than as a result of a disclosure prohibited hereby, or (ii) is required to be
disclosed by law.
(e) They acknowledge that their expertise in the mammography and
densitometry business is of a special, unique, unusual and extraordinary
character, which gives said expertise a peculiar value, and that a breach by any
of them of the provisions of Section 5.1 of this Agreement cannot reasonably or
adequately be compensated in damages in an action at law; and such a breach of
any of the foregoing provisions contained in this Agreement will cause EMT
irreparable injury and damage. They further acknowledge that they possess unique
skills, knowledge and ability and that competition by any of them, in violation
of this Agreement or any other breach of the provisions of this Agreement would
be extremely detrimental to EMT. By reason thereof, they agree that EMT shall be
entitled, in addition to any and all other remedies they may have under this
Agreement or otherwise, to temporary, preliminary and permanent injunctive and
other equitable relief to prevent a breach or curtail any breach or threatened
breach of this Agreement by any of them. No specification in this Agreement of a
specific legal or equitable remedy shall be construed as a waiver or prohibition
against the pursuing of other legal or equitable remedies in the event of such a
breach.
5.2. Cooperation in Third-Party Litigation.
(a) After the Closing, Caprius shall provide such cooperation as EMT
or their counsel may reasonably request in connection with: (i) any proceedings
related to the business of the Strax Institute or New Strax; (ii) the Strax
Institute or New Strax's conduct of their business prior to the Closing; or
(iii) any proceedings for which EMT is entitled to indemnification from Caprius
under Section 6.1. Such cooperation shall include, but not be limited to, making
employees of Caprius available upon the reasonable request of EMT or their
counsel to consult with and assist EMT and their counsel in connection with any
such proceedings and to prepare for and testify in any such proceedings,
including depositions, trials and arbitration proceedings.
(b) EMT agrees that after the Closing, it shall provide such
cooperation as Caprius or its counsel may reasonably request in connection with:
(i) Caprius's conduct of the Strax Institute Business prior to the Closing; and
(ii) any proceedings for which Caprius is entitled to indemnification from EMT
under Section 6.2 hereof. Such cooperation shall include, but not be limited to,
making employees of New Strax or EMT available upon the reasonable request of
17
Caprius or its counsel to consult with and assist Caprius and its counsel
regarding any such proceedings and to prepare for and testify in connection with
any such proceedings, including depositions, trials and arbitration proceedings.
(c) The provisions of this Section 5.2 are not intended to conflict
with, and shall not override the other provisions of this Agreement.
5.3 Payment for 2003 Audit. Caprius shall promptly pay all auditing fees
and costs incurred by Caprius in connection with the audit of the Strax
Institute for the year ended September 30, 2003.
6. INDEMNIFICATION.
6.1 Indemnification by Caprius. In the event any third party alleges facts
that, if true, would mean Caprius or New Strax has breached any of their
representations, warranties, and covenants contained in the Agreement or in any
document, certificate or affidavit delivered by Caprius or New Strax at or prior
to the Closing, and, provided that EMT makes a written claim for indemnification
against Caprius, pursuant to Section 6.3 below, then Caprius, shall indemnify
EMT from and against the entirety of any Adverse Consequences EMT may suffer
through and after the date of the claim for indemnification resulting from,
arising out of, relating to, in the nature of, or caused by the breach (or the
alleged breach). In addition, in the event an action is instituted against EMT
and/or New Strax as a result of the litigation against Caprius referred to in
Note 4 of the September 30, 2002 and 2001 Caprius audited financial statements,
Caprius shall indemnify EMT and/or New Strax from and against the entirety of
any Adverse Consequences EMT and/or New Strax may suffer as a result of such
claim.
6.2. Indemnification by EMT. In the event any third party alleges facts
that, if true, would mean EMT has breached any of its representations,
warranties, and covenants contained in the Agreement or in any document,
certificate or affidavit delivered by EMT at or prior to the Closing, and,
provided that Caprius makes a written claim for indemnification against EMT
pursuant to Section 6.3 below, then EMT shall indemnify Caprius from and against
the entirety of any Adverse Consequences Caprius may suffer through and after
the date of the claim for indemnification resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged breach).
6.3. Procedure.
(a) Promptly (and in any event within five days after the service of
any summons or other document) after acquiring knowledge of any Claim for which
one or more of the Parties (the "Indemnified Party") may seek indemnification
against other Parties (the "Indemnifying Party") pursuant to this Article 6, the
Indemnified Party shall give written notice thereof to the Indemnifying Party.
Failure to provide notice shall not relieve the Indemnifying Party of its
obligations under this Article 6, except to the extent that the Indemnifying
Party demonstrates actual damage caused by that failure. The Indemnifying Party
shall have the right to assume the defense of any Claim with counsel reasonably
acceptable to the Indemnified Party upon delivery of notice to that effect to
the Indemnified Party. If the Indemnifying Party, after written notice from the
18
Indemnified Party, fails to take timely action to defend the action resulting
from the Claim or otherwise respond to the Claim, the Indemnified Party shall
have the right to defend the action resulting from the Claim by counsel of its
own choosing, but at the cost and expense of the Indemnifying Party. The
Indemnified Party shall have the right to settle or compromise any Claim against
it, and recover from the Indemnifying Party any amount paid in settlement or
compromise thereof, if it has given written notice thereof to the Indemnifying
Party and the Indemnifying Party has failed to take timely action to defend the
Claim; otherwise, the Indemnified Party shall have no right to settle or
compromise any Claim. The Indemnifying Party shall have the right to settle or
compromise any Claim against the Indemnified Party without the consent of the
Indemnified Party provided that the terms of the settlement or compromise
provide for the unconditional release of the Indemnified Party and require the
payment of monetary damages only.
(b) Upon its receipt of any amount paid by the Indemnifying Party
pursuant to this Article 6, the Indemnified Party shall deliver to the
Indemnifying Party such documents as it may reasonably request assigning to the
Indemnifying Party any and all rights, to the extent indemnified, that the
Indemnified Party may have against third parties with respect to the Claim for
which indemnification is being received.
6.4. Limitations on Indemnification. Notwithstanding anything to the
contrary contained herein, except as provided in this Section 6.4, no
Indemnified Party shall be entitled to receive an indemnification payment with
respect to any Claim or Claims specified in this Article 6 unless the Claim, or
the aggregate amount of all Claims made by the Indemnified Party hereunder,
equals or exceeds $2,500 (in which case all of such Claim or Claims back to the
first dollar will be recoverable). Provided, however, EMT shall be fully
indemnified for Tax Liabilities without regard to this limitation.
7. MISCELLANEOUS.
7.1 Survival. All of the representations, warranties, and covenants of the
Parties shall survive the Effective Time for as long as the applicable statute
of limitations.
7.2 Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
7.3 Assignment. This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors. No Party
may assign either this Agreement or any of its obligations hereunder without the
prior written approval of all of the Parties, except for any assignment
including a merger or consolidation which occurs by operation of law.
7.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
19
7.5 Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.6 Notices and Addresses. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted next business day delivery, or by facsimile delivery (in
which event a copy shall immediately be sent by Federal Express or similar
receipted delivery).
If to Caprius, Inc. or Strax
Institute, Inc.: Caprius, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ Will and ▇▇▇▇▇
▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇, Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Eastern Medical
Technologies, Inc.: Eastern Medical Technologies, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either of them, by notice to the other may designate
from time to time. Time shall be counted to, or from, as the case may be, the
delivery in person.
20
7.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida excluding its conflicts of law
provisions.
7.8 Amendments and Waivers. The Parties may mutually amend any provision of
this Agreement at any time prior to the Effective Time with the prior
authorization of their respective board of directors. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing
and signed by all of the Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
7.9 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the term
hereof, such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision by its severance herefrom.
7.10 Expenses. Each of the Parties shall bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
7.11 Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
7.12 Arbitration. Except in the case of seeking any equitable remedy
pursuant to Section 5.1(e), any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the Parties are unable to resolve by mutual
agreement, shall be settled by submission by any Party of the controversy, claim
or dispute to binding arbitration in Broward County, Florida (unless the Parties
agree in writing to a different location), before three arbitrators in
accordance with the rules of the American Arbitration Association then in
effect. In any such arbitration proceeding, the Parties agree to provide all
discovery deemed necessary by the arbitrators. The decision and award made by
the arbitrators shall be final, binding and conclusive on all Parties hereto for
all purposes, and judgment may be entered thereon in any court having
jurisdiction thereof.
7.13 Force Majeure. No Party shall be responsible for failure or delay in
performance hereunder by reason of any strikes; labor disputes; freight
embargoes; interruption or failure in the Internet, telephone or other
telecommunications service or related equipment; material interruption in the
mail service or other means of communication with the United States; a sustained
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and material or substantial loss by fire, flood, accident, hurricane, tornado,
earthquake, theft, sabotage or other calamity or malicious act, whether or not
such loss shall have been insured; acts of God; outbreak or material escalation
of hostilities or civil disturbances, national emergency or war (whether or not
declared), or other calamity or crises including a terrorist act or acts
affecting the United States; future laws, rules, regulations or acts of any
Governmental Entity (including any orders, rules or regulations issued by any
official or agency of such Governmental Entity); or any cause beyond the
reasonable control of such Party.
7.14 Plural. Unless the context requires otherwise, the singular shall
include the plural, and vice versa.
7.15 Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
7.16 Further Assurances. The parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request, for the purpose of carrying out the intent of this
Agreement and the transactions contemplated hereby.
SIGNATURES FOLLOW
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
__________________________
CAPRIUS, INC.
__________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
__________________________
STRAX INSTITUTE, INC.
__________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
_________________________
EASTERN MEDICAL TECHNOLOGIES, INC.
_________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, solely for the purposes of the
provisions of Sections 5.1 and 5.2,
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, solely for the purposes of
the provisions of Sections 5.1 and 5.2
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