EXHIBIT 10.8
EXECUTION
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
MIRACOR DIAGNOSTICS, INC.
AND
WOODRIDGE OPEN MRI, LLC
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.......................................................1
ARTICLE II PURCHASE AND SALE OF ASSETS.......................................2
2.1 Purchase and Sale...............................................2
2.2 Assets..........................................................2
2.3 Consideration...................................................2
2.4 Excluded Assets.................................................3
2.5 Excluded Liabilities............................................3
2.6 The Closing.....................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER.........................4
3.1 Organization, Power and Authority...............................4
3.2 Good Title to and Condition of the Assets.......................4
3.3 Licenses of Seller..............................................4
3.4 Taxes...........................................................4
3.5 Insurance.......................................................4
3.6 Consents........................................................4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................5
4.1 Organization, Power and Authority...............................5
4.2 Due Authorization; Binding Obligation...........................5
4.3 Consents........................................................5
ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS................................5
5.1 Access to Records...............................................5
5.2 Accounts Receivable.............................................6
5.3 Release.........................................................6
5.4 Escrow Agreement................................................6
ARTICLE VI CONDITIONS TO THE OBLIGATIONS OF PURCHASER........................6
6.1 Accuracy of Representations and Warranties and
Compliance with Obligations...................................6
6.2 Corporate Certificate of Seller.................................6
6.3 Receipt of Necessary Consents...................................6
6.4 Assignment and Assumption Agreement.............................6
ARTICLE VII CONDITIONS TO OBLIGATIONS OF SELLER..............................7
7.1 Accuracy of Representations and Warranties and
Compliance with Obligations...................................7
7.2 Receipt of Release..............................................7
7.3 Corporate Certificate of Purchaser..............................7
7.4 Assignment and Assumption Agreement.............................7
ARTICLE VIII SURVIVAL OF TERMS; INDEMNIFICATION..............................7
8.1 Survival........................................................7
8.2 Indemnification by Seller.......................................7
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Table of Contents
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(continued)
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8.3 Indemnification by Purchaser....................................8
8.4 Indemnification Procedure.......................................8
ARTICLE IX MISCELLANEOUS.....................................................8
9.1 Further Assurances..............................................8
9.2 Brokers' Commission.............................................9
9.3 Amendment and Modification......................................9
9.4 Binding Effect..................................................9
9.5 Entire Agreement................................................9
9.6 Headings; Counterparts..........................................9
9.7 Notices.........................................................9
9.8 Governing Law..................................................10
9.9 Expenses.......................................................10
9.10 Waiver.........................................................10
9.11 Severability...................................................10
9.12 Publicity......................................................10
9.13 No Third Party Rights..........................................10
9.14 Prevailing Party...............................................10
9.15 Consent to Jurisdiction; Service of Process....................11
Exhibits
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Exhibit A Escrow Agreement
Schedules
---------
2.2 Assets
2.3 Assumed Liabilities
2.4 Excluded Assets
3.2 Good Title to and Condition of the Assets
6.3 Consents
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") dated January 18,
2002, by and between Miracor Diagnostics, Inc., a Utah corporation (the
"Purchaser") and Woodridge Open MRI, LLC, a Delaware limited liability company
(the "Seller").
RECITALS
A. The Seller operates a diagnostic imaging business located at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Business") and owns the assets used in
the operation of the Business.
B. The Purchaser desires to purchase from the Seller, and the Seller
desires to sell, convey, transfer, assign and deliver to Purchaser, the "Assets"
(as later defined and more fully described below), on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties and covenants and subject to the conditions
contained in this Agreement, the Parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, including, without limitation, the
Schedules hereto, the following defined terms shall have the meanings set forth
below. All Article and Section numbers and Schedule references used herein refer
to the Articles and Sections of this Agreement and the Schedules attached hereto
(or to be attached in accordance with the terms of the Agreement), unless
otherwise specifically described:
"GOVERNMENTAL AUTHORITY" shall mean the government of the United States
of America, any state of the United States of America or any political
subdivision thereof, or any agency, board, bureau, department or commission of
any of the foregoing.
"KNOWLEDGE OF SELLER" shall mean the actual knowledge of Seller, and/or
any executive or manager of Seller. The Seller shall be deemed to have notice of
any legal process or official notice delivered to, or served on, Seller.
"LIENS" shall mean any and all liens, security interests, mortgages,
pledges, claims, conditional sales contracts, title defects, encumbrances,
agreements or options to buy or sell or other rights of third parties.
"MATERIAL ADVERSE EFFECT" shall mean any adverse change in the
financial condition, assets, business, prospects, or results of operations of
Seller that is material to the Business taken as a whole.
"PARTIES" shall mean Purchaser and Seller.
"PARTY" shall mean Purchaser, on the one hand, and Seller, on the other
hand, as appropriate given the context.
"PERSON" shall mean any individual, corporation (including, without
limitation, any non-profit corporation), general partnership, limited
partnership, limited liability partnership, limited liability company, joint
venture, estate, any trust, cooperative, foundation, union, syndicate, league,
consortium, coalition, committee, society, firm, company or other enterprise,
association, organization or governmental body.
"THREATENED" shall mean any demand, statement, notice or other
communication made or given verbally or in writing of a claim, proceeding,
investigation, dispute, action or other matter that might lead a reasonable
Person to conclude that there is a possibility that such claim, proceeding,
investigation, dispute, action or other matter might be asserted, commenced,
taken or otherwise pursued in the future.
"TAX" or "TAXES" shall mean any federal, state, local or foreign tax,
including but not limited to, income, capital, franchise, severance, gross
receipts, value added, sales, use, excise, real and personal property,
occupancy, stamp, transfer, payroll, unemployment insurance, social security and
Medicare, disability, workers' compensation, customs, withholding or other tax,
duty or similar governmental charge or any deposit required to be made thereof
or with respect thereto, including all interest and penalties thereon and
additions thereto.
"TRANSACTIONS" shall mean the transactions contemplated by the
Agreement.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 PURCHASE AND SALE. Upon the terms and subject to the conditions of
this Agreement, at the Closing (as defined in Section 2.6), Seller shall sell,
transfer, convey, assign and deliver to Purchaser, and the Purchaser shall
purchase and accept delivery of, the Assets (other than the Excluded Assets),
free and clear of all Liens other than the Assumed Liabilities (as defined in
Section 2.3), and Purchaser shall so purchase and acquire the Assets from
Seller.
2.2 ASSETS. "Assets" shall mean all rights, title and interest in and
to the assets, properties and rights of Seller in and to the assets listed on
SCHEDULE 2.2.
2.3 CONSIDERATION. In consideration for the purchase of the Assets,
Purchaser shall assume and discharge the Assumed Liabilities. At the Closing,
Purchaser shall assume, and thereafter shall pay, perform, satisfy or otherwise
discharge when due, all of the duties, liabilities and obligations of Seller as
of the Closing that are specifically identified in SCHEDULE 2.3. The duties,
liabilities and obligations to be assumed, satisfied or performed by Seller
pursuant to this Section 2.3 are sometimes herein collectively referred to as
the "Assumed Liabilities." At the Closing, Purchaser shall deliver to Seller an
assumption and assignment agreement in form and substance reasonably acceptable
to Seller, pursuant to which Purchaser agrees to assume and fully discharge the
Assumed Liabilities.
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2.4 EXCLUDED ASSETS. The Assets shall not include the Excluded Assets.
"Excluded Assets" shall mean those assets described on SCHEDULE 2.4, including,
all cash, cash equivalents and accounts receivables as described in Section 5.2.
2.5 EXCLUDED LIABILITIES. Purchaser shall not assume any of the
Excluded Liabilities. "Excluded Liabilities" shall mean all liabilities and
obligations of Seller, whether accrued, absolute, contingent or otherwise
(except the Assumed Liabilities) and, without limiting the generality of the
foregoing, Purchaser shall be under no obligation, and shall not be deemed, to
assume any obligation or liability of Seller for the following:
(a) any liability with respect to any life, health, accident,
disability or any other "employee welfare benefit plan," as such term is defined
in Section 3(1) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or any pension, profit sharing, stock bonus, deferred
compensation, retirement, bonus or other "employee pension benefit plan," as
defined in Section 3(2) of ERISA, maintained, or to which contributions have
been made, by Seller or any predecessor or any corporation which is a controlled
group or corporations of which Seller are a member, as defined in Section 414(b)
of the Internal Revenue Code of 1986, as amended (the "Code"), or any trade or
business (whether or not incorporated) under common control with Seller, as
defined in Section 414(c) of the Code, or any affiliated service group
aggregated with Seller under Section 414(m) of the Code;
(b) Taxes accrued and/or due and owing, penalties, fines or
levies due for periods prior to the Closing Date and federal income or capital
gains taxes or state or local income or franchise Taxes, together with any
interest, assessments and penalties thereon relating to periods on or prior to
the Closing Date;
(c) any tort liability to third parties, criminal fines and/or
penalties, workers' compensation claim or claim by any employee of Seller or any
other claim or legal or equitable action against Seller based on any acts,
omissions or facts occurring or arising on or prior to the Closing with respect
to the foregoing; and
(d) with respect to wages, salaries, bonuses, commissions,
sick pay, vacation or holiday pay, overtime or other employee benefits of any
kind and independent contractor benefits relating to periods on and prior to the
Closing.
2.6 THE CLOSING. The Closing of the Transactions shall take place on
such date when the Escrow Agreement is terminated pursuant to its terms. A copy
of the Escrow Agreement is attached hereto as EXHIBIT "A". The date on which the
Closing shall actually occur is referred to herein as the "Closing Date."
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations, warranties and covenants,
each of which is relied upon by Purchaser in consummating the Transactions,
regardless of any investigation made or information obtained by Purchaser:
3.1 ORGANIZATION, POWER AND AUTHORITY. Seller is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware and is duly qualified in each other jurisdiction in which
the conduct of its business or the ownership of the assets requires such
qualification. Seller has full corporate power and authority (a) to enter into
this Agreement and to sell, assign, transfer and deliver the Assets to Purchaser
as provided in this Agreement and to assign and transfer the Assumed
Liabilities; and (b) to perform the other Transactions.
3.2 GOOD TITLE TO AND CONDITION OF THE ASSETS. Seller has good and
marketable title to all of the Assets, free and clear of all Liens, except those
set forth in SCHEDULE 3.2 (which, other than the Assumed Liabilities, shall be
satisfied and discharged in full on or prior to the Closing).
3.3 LICENSES OF SELLER. Seller is the authorized and legal holder of
all the licenses and permits for the Business, the failure of which to possess
would have a Material Adverse Effect on the Assets.
3.4 TAXES. All federal, state and local Tax returns and reports
required to be filed by Seller with respect to the Business have been filed with
the appropriate Governmental Authorities in all jurisdictions in which such
returns and reports are required to be filed, which returns and reports were and
will be true and correct for the period for which they were filed. All Taxes
payable by Seller with respect to the Business on or prior to the Closing Date
have been paid when due or are being validly contested by Seller and adequate
reserves therefor have been set aside. There are no unpaid Taxes which are or
could become a Lien on the Assets. No Tax Liens have been filed against the
Assets. To the Knowledge of Seller, there are no audits pending or Threatened
with respect to Seller with any Governmental Authority. All Taxes that Seller is
or was legally required to withhold or collect have been duly withheld or
collected and, to the extent required, have been paid to the proper Governmental
Authority.
3.5 INSURANCE. Seller has maintained and is maintaining with
financially responsible insurance companies insurance with respect to Seller's
Assets insuring Seller against such casualties and contingencies and of such
types and amounts as are reasonably adequate for the size and scope of the
Business. Seller has received no notification from any insurance carrier denying
or disputing any claim made by Seller, denying or disputing any coverage for any
claim, denying or disputing the amount of any claim, or regarding the possible
cancellation of such policies. All premiums due on such policies have been paid,
and the aggregate amount of all claims under such policies do not exceed policy
limits. Seller has given notice to the insurers of all claims that may be
insured thereunder.
3.6 CONSENTS. No consent or approval of any public body or other
Governmental Authority and no consents, approvals or waivers from other parties,
in each such case whether with respect to the contracts, agreements or licenses
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or other instruments to be assumed by Purchaser or operation of the Business,
are required to be obtained by Seller as a result of the transfer of the Assets
contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
In order to induce Seller to enter into this Agreement and to
consummate the Transactions, Purchaser represents and warrants:
4.1 ORGANIZATION, POWER AND AUTHORITY. Purchaser is a corporation duly
organized and validly existing under the laws of the State of Utah, with full
corporate power and authority to enter into this Agreement and perform its
obligations under this Agreement.
4.2 DUE AUTHORIZATION; BINDING OBLIGATION. The execution, delivery and
performance of this Agreement and all other agreements contemplated by this
Agreement and the consummation of the Transactions and such other agreements
have been duly authorized by all necessary corporate actions of Purchaser. This
Agreement has been duly executed and delivered by Purchaser and is the valid and
binding obligation of Purchaser enforceable in accordance with its terms,
subject as to enforceability only to bankruptcy, insolvency or similar laws
affecting the rights of creditors generally. Neither the execution and delivery
of this Agreement nor the consummation of the Transactions will conflict with or
violate any provision of the Articles of Incorporation or Bylaws of Purchaser,
or of any law, ordinance or regulation or any decree or order of any court or
administrative or other Governmental Authority which is either applicable to,
binding upon or enforceable against Purchaser.
4.3 CONSENTS. No consent or approval of any public body or other
Governmental Authority and no consents, approvals or waivers from other parties,
in each such case whether with respect to the contracts, agreements, licenses or
other instruments to be assumed by Purchaser or operation of the Business, are
required to be obtained by Purchaser as a result of the transfer of the Assets
contemplated by this Agreement.
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
5.1 ACCESS TO RECORDS. The Purchaser shall preserve for a period of at
least one (1) year after the Closing Date all original documents evidencing any
contracts and commitments transferred to it by the Seller, and all other
original books, files, papers, records and other data received by the Purchaser
from the Seller, in a usual, regular and ordinary manner consistent with past
practices of Purchaser. The Purchaser shall, subject to such reasonable
limitations as may be necessary to protect the Purchaser's proprietary
information, at the Seller's sole expense and on reasonable prior notice to the
Purchaser, afford to the Seller, its officers, manager, counsel, accountants and
other representatives reasonable access during normal business hours to examine,
inspect and copy any books, records and original documents of the Seller to the
extent necessary in order for the Seller to comply with or respond to any audit,
investigation, or other governmental investigation or inquiry.
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5.2 ACCOUNTS RECEIVABLE. After Closing, to the extent that any accounts
receivables are collected and received by Purchaser for services provided by
Seller (the "Accounts"), Purchaser will immediately remit such amounts due in
connection with the Accounts to Seller. For a period of one (1) year after the
Closing Date, Seller shall have the right to supervise, review and provide
oversight with respect to the collection of such Accounts. The Purchaser agrees
and covenants to undertake all acts necessary to allow Seller to institute or
direct the collection of the Accounts (including providing Seller with financial
information) in conformance with the provisions of this Section.
5.3 RELEASE. At the Closing, Seller shall have received a release from
DVI Financial Services Inc. releasing all claims or liabilities of any nature
against Seller under the Master Equipment Lease between DVI Financial Services,
Inc. and the Seller dated March 27, 2000 (the "Lease") and releasing ▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ Medical Imaging, LLC from their guaranties
under the Lease (the "Release"). Purchaser shall cooperate and use commercial
best efforts in assisting Seller with obtaining the Release.
5.4 ESCROW AGREEMENT. At Closing, the Parties shall join and enter into
that certain Escrow Agreement, a form of which is attached hereto as EXHIBIT
"A".
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF PURCHASER
The obligation of Purchaser to consummate the Transactions shall be
subject to the fulfillment at or prior to the Closing of each of the following
conditions:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of Seller set forth in this
Agreement shall be true and correct in all respects on the date of this
Agreement and on the Closing Date. Seller and shall have performed and complied
with all of their respective obligations required by this Agreement to be
performed or complied with at or prior to the Closing and shall have satisfied
each of the conditions set forth in this Article VI at or prior to the Closing.
6.2 CORPORATE CERTIFICATE OF SELLER. Seller shall have delivered to
Purchaser (a) copies of its Certificate of Formation and Limited Liability
Company Agreement as in effect immediately prior to the date hereof; (b) copies
of resolution adopted by the Manager of Seller authorizing the Transactions
contemplated by this Agreement; and (c) a certificate shall have been delivered
to Purchaser attaching copies of resolutions adopted by the manager of Seller
authorizing the Transactions, certified as of the date hereof by a secretary or
assistant secretary of Seller.
6.3 RECEIPT OF NECESSARY CONSENTS. Except as set forth on SCHEDULE 6.3,
all consents, waivers and estoppel letters (with respect to all Leases),
authorizations or approvals of third parties with respect to any of the
Transactions shall have been obtained and confirmed by written evidence
reasonably satisfactory to Purchaser.
6.4 ASSIGNMENT AND ASSUMPTION AGREEMENT. Seller shall have duly
executed and delivered to Purchaser the assignment and assumption agreement as
set forth in Section 2.3.
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ARTICLE VII
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller to consummate the Transactions shall be
subject to the fulfillment at or prior to the Closing of each of the following
conditions:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of Purchaser contained in this
Agreement shall be true and correct in all respects at the date of this
Agreement. Purchaser shall have performed and complied with all of its
obligations required by this Agreement to be performed or complied with at or
prior to the Closing and shall have satisfied each of the conditions set forth
in this Article VII at or prior to the Closing.
7.2 RECEIPT OF RELEASE. Seller shall have received the Release as
specified in Section 5.3.
7.3 CORPORATE CERTIFICATE OF PURCHASER. Purchaser shall have delivered
to Seller (a) copies of its Articles of Incorporation and Bylaws as in effect
immediately prior to Closing; (b) copies of resolutions adopted by the Board of
Directors of Purchaser authorizing the Transactions contemplated by this
Agreement; and (c) a Certificate of Good Standing of Purchaser issued by the
Secretary of State of the State of Utah.
7.4 ASSIGNMENT AND ASSUMPTION AGREEMENT. Purchaser shall have duly
executed and delivered to Seller the assignment and assumption agreement as set
forth in Section 2.3.
ARTICLE VIII
SURVIVAL OF TERMS; INDEMNIFICATION
8.1 SURVIVAL. All respective representations and warranties made by
Seller and Purchaser in this Agreement, the Schedules hereto, or in any document
or instrument executed and delivered pursuant hereto shall survive the Closing
Date hereunder for a period of one (1) year from the Closing Date, provided that
the representations and warranties made by Seller and Purchaser in Sections 3.1,
3.4, 3.6, 4.1, 4.2 and 4.3 shall survive for the respective statutes of
limitations.
8.2 INDEMNIFICATION BY SELLER. Seller hereby agrees to indemnify and
hold Purchaser harmless from and against all liability, loss, damage or injury
and all reasonable costs and expenses (including reasonable counsel fees and
costs of any investigation or suit related thereto) incurred or suffered by
Purchaser arising from (a) any misrepresentation or breach of any covenant or
warranty of Seller contained in this Agreement or the Schedules hereto, or any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by Seller hereunder; (b) the assertion by any
taxing authority against the Assets or any liability for taxes, assessments,
fees, charges, additions to tax, interest or penalties, federal, state, local,
foreign or other relating to the Assets for a period or event, prior to and
through the Closing Date, or the imposition of any Lien (other than the Assumed
Liabilities) arising therefrom against the Assets or which attach thereto; (c)
any claims asserted by third parties prior to, at or after the Closing against
Purchaser relating to the operation by Seller of its business prior to the date
hereof; or (d) any claim for or relating to a debt, obligation or liability of
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Seller which is not specifically assumed by Purchaser; PROVIDED, HOWEVER, that
except on account of fraud, in no event shall the indemnification liability of
Seller exceed in the aggregate One Hundred Thousand Dollars ($100,000.00).
8.3 INDEMNIFICATION BY PURCHASER. Purchaser hereby agrees to indemnify
and hold Seller harmless from and against all liability, loss, damage or injury
and all reasonable costs and expenses (including reasonable counsel fees and
costs of any investigation or suit related thereto) incurred or suffered by
Seller arising from (a) any misrepresentation or breach of any covenant or
warranty of Purchaser contained in this Agreement or the Schedules hereto, or
any misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by Purchaser hereunder; and (b) the Assumed
Liabilities.
8.4 INDEMNIFICATION PROCEDURE.
(a) Any Party entitled to indemnification hereunder (the
"Indemnified Party") shall notify the Party obliged to indemnify (the
"Indemnifying Party") promptly after it becomes aware of any suit, claim,
action, proceeding, arbitration or investigation (each, an "Action") as to which
indemnity may be sought. In the event that the Indemnifying Party acknowledges
in writing its indemnification obligation with respect to any such Action, the
Indemnifying Party shall be entitled, at its expense, to control the defense of
such Action; PROVIDED, HOWEVER, that the Indemnified Party may also participate
in such defense at its own expense.
(b) The failure of the Indemnified Party to give notice as
provided herein shall relieve the Indemnifying Party of any obligation under
this Article VIII only if and to the extent that such failure materially
prejudices the ability of the Indemnifying Party to defend such action.
(c) In the defense of any Action, regardless of who is in
control thereof, the controlling party shall not, except with the prior written
consent of the non-controlling party, consent to entry of any judgment or enter
into any settlement, which consent of the non-controlling party will not be
unreasonably withheld provided such judgment or settlement includes as an
unconditional term thereof giving by the claimant or plaintiff to the
non-controlling party of a release from liability with respect to such claim or
litigation.
(d) In the defense of any Action, regardless of who is in
control thereof, the Indemnifying Party and the Indemnified Party shall
cooperate fully with each other, and shall cause their legal counsel,
accountants and affiliates to do so, and shall make available to the other party
all relevant books, records and information (in such Party's control) during
normal business hours and shall furnish to each other such other assistance as
the other Party may reasonably require in connection with such defense.
ARTICLE IX
MISCELLANEOUS
9.1 FURTHER ASSURANCES. After the Closing, upon the reasonable request
of the other, each Party shall execute and deliver all further documents and
instruments and shall take such other steps as may be reasonably necessary to
effectuate the Transactions.
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9.2 BROKERS' COMMISSION. Each of the Parties represents and warrants to
the other that such Party has dealt with no broker or finder in connection with
any of the Transactions, and, insofar as such Party knows, no broker or other
Person is entitled to any commission or finder's fee in connection with any of
these Transactions.
9.3 AMENDMENT AND MODIFICATION. This Agreement may only be amended by
written instrument signed by the Parties hereto.
9.4 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors, assigns, heirs,
beneficiaries, estates, executors and personal representatives.
9.5 ENTIRE AGREEMENT. This Agreement and the Schedules attached hereto
constitute the entire agreement of the Parties with respect to the sale of the
Assets and the other Transactions, and supersede all prior understandings,
agreements and oral representations and warranties of the Parties with respect
to the subject matter of this Agreement.
9.6 HEADINGS; COUNTERPARTS. The descriptive headings in this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. Delivery of executed signature pages hereof
by facsimile transmission shall constitute effective and binding execution and
delivery hereof.
9.7 NOTICES. Any notice, request, information or other document to be
given hereunder to any of the Parties by any other Party shall be in writing
(including telecopy and telegraphic communication) and shall be (as elected by
the Person giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed by registered or certified mail (postage prepaid),
return receipt requested, addressed to:
If to Purchaser
addressed to: Miracor Diagnostics, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
With copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
c/o Wright, ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Seller
addressed to: Woodridge Open MRI, LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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With copy to: Hunton & ▇▇▇▇▇▇▇▇
Barclays Financial Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Any Party may change the address to which notices under this Agreement are to be
sent to it by giving written notice of a change of address in the manner
provided in this Agreement for giving notice.
9.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to conflicts
of law principles thereunder.
9.9 EXPENSES. Except as otherwise provided in this Agreement, all
legal, accounting and other costs and expenses incurred in connection with this
Agreement and Transactions shall be paid by the Party incurring the expenses;
provided, however, that Purchaser shall pay all transfer taxes (if applicable)
with respect to the Assets.
9.10 WAIVER. Any Party to this Agreement may extend the time for or
waive the performance of any of the obligations of the other, waive any
inaccuracies in the representations or warranties by the other, or waive
compliance by the other with any of the covenants or conditions contained in
this Agreement. Any such extension or waiver shall be in writing and signed by
an officer of the waiving party, as appropriate. No such waiver shall operate or
be construed as a waiver of any subsequent act or omission of the Parties.
9.11 SEVERABILITY. If at any time subsequent to the date of this
Agreement, any provision of this Agreement shall be held by any court of
competent jurisdiction to be illegal, void or unenforceable, such provision
shall be of no force and effect, but the illegality or unenforceability of such
provision shall have no effect upon and shall not impair the enforceability of
any other provision of this Agreement.
9.12 PUBLICITY. Other than disclosures required by law, no press
release or other public announcement related to this Agreement or the
Transactions shall be issued by any Party without the prior written approval of
the other Party.
9.13 NO THIRD PARTY RIGHTS. The provisions of this Agreement are for
the exclusive benefit of the Parties hereto and no other party (including,
without limitation, any creditor of any of the Parties) shall have any right or
claim against the Parties by reason of those provisions or be entitled to
enforce any of those provisions against the Parties.
9.14 PREVAILING PARTY. If either Purchaser, on the one hand, or Seller,
on the other hand, commences an action against the other to interpret or enforce
any of the terms of this Agreement hereto or as a result of a breach by the
other Party of any terms hereof, the nonprevailing Party shall pay to the
prevailing Party's reasonable attorneys' fees, costs and expenses incurred in
connection with the prosecution or defense of such action (including at any
appellate level).
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9.15 CONSENT TO JURISDICTION; SERVICE OF PROCESS. Seller and Purchaser
hereby irrevocably submit to the jurisdiction of the state or federal courts
located in DuPage County, Illinois, in connection with any suit, action or other
proceeding that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced by such courts.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MIRACOR DIAGNOSTICS, INC.
By: ____________________________________
Name: ______________________________
Title:______________________________
WOODRIDGE OPEN MRI, LLC
By: Bidon Medical Imaging, LLC,
a Florida limited liability company
By:_________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
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EXHIBIT "A"
Escrow Agreement
----------------
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SCHEDULE 2.2
Assets
------
DVI Equipment Lease by and between DVI Financial Services, Inc. and Woodridge
Open MRI, LLC, dated March 27, 2000.
See attached list.
-14-
SCHEDULE 2.3
Assumed Liabilities
-------------------
DVI Equipment Lease by and between DVI Financial Services, Inc. and Woodridge
Open MRI, LLC, dated March 27, 2000.
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SCHEDULE 2.4
Excluded Assets
---------------
All Assets of Seller (other than listed on Schedule 2.2), including without
limitation cash, cash equivalents and accounts receivables of Seller.
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SCHEDULE 3.2
Good Title to and Condition of the Assets
-----------------------------------------
DVI Equipment Lease by and between DVI Financial Services, Inc. and Woodridge
Open MRI, LLC, dated March 27, 2000.
-17-
SCHEDULE 6.3
Consents
--------
DVI Financial Services, Inc.
-18-
