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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) October 15, 1999
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SABRATEK CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 1-11831 36-3700639
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
8111 North St. Louis, Skokie, Illinois 60076
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(Address of Principal Executive Offices) (Zip Code)
(847) 720-2400
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 2: ACQUISITION OR DISPOSITION OF ASSETS.
On October 20, 1999, Sabratek Corporation, a Delaware corporation
("Sabratek"), consummated a transaction in which it sold certain assets, subject
to certain liabilities, of its wholly-owned subsidiary Strategic Reimbursement
Services, Inc., an Illinois corporation ("SRS"), to Gienko and Associates, Inc.,
a Delaware corporation (the "Buyer"), pursuant to a Transfer Agreement, dated as
of October 20, 1999, by and among Sabratek, SRS, the Buyer and substantially all
of the former shareholders of SRS (the "Former SRS Shareholders"). SRS is a
provider of consulting services to heath care facilities. The Former SRS
Shareholders own approximately 9% of Sabratek's outstanding common stock which
they received at the time Sabratek acquired SRS through the merger of SRS with
and into a newly-formed, wholly-owned subsidiary of Sabratek on July 29, 1999
(the "SRS Merger").
Under the terms of the Transfer Agreement, in exchange for substantially
all of the operating assets including intangible property and goodwill related
thereto, of SRS, which were transferred subject to the liabilities identified in
the Transfer Agreement, Sabratek is entitled to receive an aggregate purchase
price of $4 million, to be paid in the following manner: (a) $2 million
delivered in cash at closing, (b) $1 million collected from outstanding accounts
receivable of SRS and (c) $1 million in future receivables related to work in
progress of SRS. With respect to Sabratek's receipt of the portion of the
purchase price payable from future collections, the Buyer will pay Sabratek half
of amounts the Buyer receives from such future collections on a weekly basis
until Sabratek's rights to receive consideration under the Transfer Agreement
have been satisfied.
In addition, the Transfer Agreement provides that in the event that the
Former SRS Shareholders sell any shares of Sabratek common stock which they
received from Sabratek as part of the SRS Merger for a purchase price in excess
of $6.00 per share, the Former SRS Shareholders will pay Sabratek half of such
excess less any broker fees or commissions.
ITEM 5. OTHER EVENTS
On October 15, 1999, Sabratek did not make its approximately $2.4
million semi-annual interest payment on its 6% convertible notes. The notes
mature April 15, 2005. If the interest payment is not made within a 30-day cure
period, then an Event of Default will take place under the Indenture.
On October 15, 1999, a second amended complaint was filed with the
United States District Court For the Northern District of Illinois Eastern
Division in the case captioned Chu v. Sabratek, Case No. 99C-0351. The second
amended complaint expanded the class period from February 25, 1997 through
October 6, 1999 and expanded the factual basis for claims contained in the
initial complaint and the first amended complaint.
On October 19, 1999, Sabratek announced that William H. Lomicka and
William D. Lautman had resigned as directors of Sabratek.
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ITEM 7. EXHIBITS
(c) EXHIBITS PAGE NUMBER
10.66 Transfer Agreement, dated
as of October 20, 1999, by and
among Sabratek Corporation,
Strategic Reimbursement Services,
Gienko and Associates, Inc.,
Robert C. Gienko, Mark Pugh, Steve
Fagerman and Kenneth Janowski....................E1
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 28, 1999 By: \s\ Joseph Marshall
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Joseph Marshall, Acting Chief Executive Officer
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EXHIBIT 10.66
TRANSFER AGREEMENT
This TRANSFER AGREEMENT (this "Agreement"), dated October __, 1999, by and
among Sabratek Corporation, a Delaware corporation (the "Seller"), Strategic
Reimbursement Services, Inc., an Illinois corporation ("SRS"), Gienko and
Associates, Inc., a Delaware corporation (the "Buyer"), and each of the former
stockholders of SRS other than Phillip Mitchell (the "Former Stockholders"). The
Former Stockholders own all of the capital stock of the Buyer. The Seller owns
all of the capital stock of SRS. The Seller as the parent of SRS shall cause SRS
to perform its obligations under this Agreement to among other things transfer
to the Buyer the SRS Assets; Sabratek Corporation is referred to herein as the
"Seller" for convenience purposes.
Reference is made to that certain Agreement of Merger, dated as of June 29,
1999 (the "Merger Agreement"), by and among the Seller, a wholly-owned
subsidiary of the Seller and SRS. The closing under the Merger Agreement
occurred on June 29, 1999. As part of the consideration for the acquisition of
SRS by the Seller under the Merger Agreement, the Seller pursuant to a
Registration Rights Agreement, dated June 29, 1999, by and among the Seller and
the Former Stockholders (the "Registration Rights Agreement"), agreed to use its
reasonable best efforts to register certain shares of its capital stock.
This Agreement relates to, among other things, the sale by the Seller to
the Buyer of certain of the assets of SRS and the assumption by the Buyer of
certain of the liabilities of SRS.
The parties hereto acknowledge and agree that the consideration being
provided for the assets of SRS pursuant to this Agreement is fair and reasonable
and represents the fair market value for the assets transferred. The parties
recognize that the assets of SRS are worth substantially less than at the time
of the closing of the Merger Agreement for a number of reasons. Such reasons
include, but are not limited to, the following: (i) the association of SRS with
the Seller (due in turn in part to the inability of the Seller to timely meet
its financial reporting requirements); (ii) the employment agreements entered
into pursuant to the Merger Agreement between the key officers and employees of
SRS and SRS are contended to be void and unenforceable by the Former
Stockholders as a result of certain actions of the Seller and its officers,
directors and agents alleged by the Former Stockholders to be improper, and
there is risk that the relationships and goodwill developed by such key officers
and employees (which such relationships provide substantial benefits to SRS,
including without limitation enhancing the collectibility of the accounts
receivable and work in progress of SRS) will cease to exist; and (iii) the
Seller has explored the possibility and does not believe that it will be able to
find a buyer to acquire SRS at a price in excess of that being paid pursuant to
this Agreement.
The Seller has informed the Former Stockholders that the Seller is engaged
in an effort to restructure and that the transactions contemplated by this
Agreement will assist the Seller in such restructuring effort.
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NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Buyer, the Seller and the Former
Stockholders agree as follows:
1. Transfer of SRS Assets to the Buyer. On and subject to the terms and
conditions of this Agreement, the Seller hereby agrees to cause SRS to
sell, transfer and convey to the Buyer the SRS Assets (as hereinafter
defined) at the Closing for a purchase price of $2.0 million by wire
transfer of immediately available funds (the "Purchase Price") plus the
additional consideration contemplated by this Agreement and the letter
agreement of even date herewith by and among the Seller and the Former
Stockholders. The Buyer and the Seller acknowledge that the consent of
LaSalle Bank National Association ("LaSalle") is a condition precedent
to the obligations of the Seller and the Buyer hereunder. "SRS Assets"
means all right, title and interest in and to all of the assets of SRS,
including but not limited to all of its (a) leaseholds and
subleaseholds therein, improvements, fixtures and fittings thereon, and
easements, rights-of-way and other appurtenants thereto (such as
appurtenant rights in and to public streets), (b) tangible personal
property (such as machinery, equipment, inventories and supplies,
furniture and automobiles), (c) intellectual property, goodwill
associated therewith, licenses and sublicenses granted and obtained
with respect thereto, and rights thereunder, remedies against
infringements thereof and rights to protection of interests therein
under the laws of all jurisdictions, (d) leases, subleases and rights
thereunder, (e) agreements, contracts (including without limitation the
Release Agreement dated June 29, 1999 by and among SRS and the former
stockholders of SRS and all employment contracts of SRS), instruments,
security interests, guaranties and other similar arrangements and
rights thereunder, (f) accounts, notes and other receivables and work
in process, (g) claims, deposits, prepayments, refunds, causes of
action, choses in action, rights of recovery, rights of set off and
rights of recoupment (including any such item relating to the payment
of taxes), (h) approvals, permits, licenses, orders, registrations,
certificates, variances and similar rights obtained from governments
and governmental agencies, (i) books, records, ledgers, files,
documents, correspondence, lists, creative materials, advertising and
promotional materials, studies, reports and other printed or written
materials, (j) rights in and with respect to the assets associated with
its employee pension and welfare benefit plans and the sponsorship
thereof and (k) all cash, cash equivalents and bank accounts; provided,
however, that the SRS Assets shall not include (i) the corporate
charter, qualifications to conduct business as a foreign corporation,
arrangements with registered agents relating to foreign qualifications,
taxpayer and other identification numbers, seals, minute books, stock
transfer books, blank stock certificates and other documents relating
to the organization, maintenance and existence of SRS as a corporation,
(ii) an undivided interest in the amount of $1 million in the accounts
receivable of SRS as contemplated by Section 3 (the "Retained A/R
Rights"), (iii) an undivided interest in the amount of $1 million in
the contingent rights to payment of SRS as contemplated by Section 3
(the "Retained Work in Process Rights")
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or (iv) the name "Strategic Reimbursement Services" and any related
intellectual property rights associated with such name.
2. Assumption and Reimbursement of Certain Liabilities of SRS by the
Buyer. On and subject to the terms and conditions of this Agreement,
the Buyer shall assume and become responsible for all of the following
liabilities of SRS at the Closing: (i) all liabilities and obligations
as of June 29, 1999 (whether such liabilities or obligations are 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), (ii) all liabilities
and obligations (whether such liabilities or obligations are 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) relating to or arising
directly or indirectly from any act or omission of any Former
Stockholder subsequent to June 29, 1999 and (iii) any liability or
obligation arising in the ordinary course of business of SRS subsequent
to June 29, 1999 (other than with respect to income taxes) not related
to or arising directly or indirectly from any act of or failure to act
by Sabratek or any of its directors, officers, agents, employees or
independent contractors or arising as a matter of law due to the
relationship of SRS being affiliated with Sabratek and its directors
and officers, including but not limited to (a) all liabilities of SRS
for payroll taxes related to any period prior to the Closing, (b) all
liabilities and obligations with respect to employees of SRS (other
than employees of SRS who are also employees of Sabratek or any of its
subsidiaries other than SRS), including liabilities under its employee
pension and welfare benefit plans or arrangements, and including COBRA
continuation coverage for any SRS employee or former employee, and any
other of such that may arise in connection with the transactions
contemplated by this Agreement and the employment non-employment by the
Buyer of the employees of SRS, (c) all liabilities and obligations of
SRS under the agreements, contracts, leases, licenses and other
arrangements of SRS which are part of the SRS Assets and (d) all
obligations of SRS to indemnify any person (other than the directors
and officers of SRS who are also directors or officers of Sabratek) by
reason of the fact that such person was a director, officer, employee
or agent of SRS or was serving at the request of SRS as a partner,
trustee, director, officer, employee or agent of another entity
(whether such indemnification is for judgments, damages, penalties,
fines, costs, amounts paid in settlement, losses, expenses or otherwise
and whether such indemnification is pursuant to any statute, charter
document, bylaw, agreement or otherwise) (the "SRS Liabilities"). The
parties acknowledge and agree that the Buyer is not assuming any
liabilities other than those expressly contemplated above, including
without limitation any debts, obligations or liabilities of Sabratek or
its officers, directors, agents or employees.
3. Payment of Retained Work in Process and A/R Rights to the Seller. The
rights of the Seller (through SRS) with respect to the Retained Work in
Process Rights and the Retained A/R Rights shall be as provided in this
Section. After the Closing, the Buyer shall collect all (i)
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SRS accounts receivable acquired by it at the Closing (the "Closing
A/R") and (ii) SRS contingent rights to payment for services rendered
by SRS acquired by it at the Closing and the accounts receivable into
which such may in time mature (the "Closing Work in Process") as
promptly as practicable in the ordinary course of business. The Seller
shall have the right to receive one-half of all Closing A/R collected
by the Buyer after the Closing (including without limitation as a
result of the sale or factoring of such assets), and such amounts shall
be paid by the Buyer to the Seller by wire transfer of immediately
available funds on a weekly basis (that is, all such amounts collected
by the Buyer with respect to any particular week shall be payable by
the Buyer to the Seller on or prior to the Friday of the immediately
subsequent week); provided that the maximum amount that shall be paid
by the Buyer to the Seller with respect to the Closing A/R shall be $1
million, and thereupon the Retained A/R Right of the Seller shall be
fully satisfied. The Seller shall also have the right to receive
one-half of all Closing Work in Process collected by the Buyer after
the Closing (including without limitation as a result of the sale or
factoring of such assets), and such amounts shall be paid by the Buyer
to the Seller by wire transfer of immediately available funds on a
weekly basis (that is, all such amounts collected by the Buyer with
respect to any particular week shall be payable by the Buyer to the
Seller on or prior to the Friday of the immediately subsequent week);
provided that the maximum amount that shall be paid by the Buyer to the
Seller with respect to the Closing Work in Process shall be $1 million,
and thereupon the Retained Work in Process Right of the Seller shall be
fully satisfied. If any payment is made to the Seller or SRS which is
attributable to the Closing A/R or the Closing Work in Process, the
Seller or SRS as the case may be shall hold such payment in trust for
the Buyer and shall promptly remit such payment to the Buyer. The Buyer
will for the purpose of a reasonable inquiry (i) make available to the
Seller and its agents, attorneys and accountants upon reasonable
advance notice all records and work papers necessary to verify the
Closing Work in Process and the Closing A/R collected by the Buyer from
time to time subsequent to the Closing and (ii) allow the Seller and
its agents, attorneys and accountants upon reasonable advance notice to
interview any Buyer personnel significantly involved in the collection
of Closing Work in Process and Closing A/R to verify the compliance of
the Buyer with this Section; provided that the above specified rights
of the Seller shall terminate upon the satisfaction in full of the
Retained Work in Process Right and the Retained A/R Right.
4. Temporary Right to Use SRS Name. For a period of 90 days subsequent to
the Closing, the Seller hereby grants to the Buyer the right to use (in
accordance with the past custom and practice of SRS) the name
"Strategic Reimbursement Services" for no consideration in addition to
the consideration being paid by the Buyer to the Seller pursuant to
this Agreement. In addition, the Buyer shall have the right to endorse
the name "Strategic Reimbursement Services, Inc." upon any checks or
other instruments of payment received by it relating to the collection
of Closing A/R and Closing Work in Process, until such are collected.
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5. True-Up on Sabratek Stock Payable to the Seller. Upon the sale of any
Sabratek Merger Stock (as hereinafter defined) by any of the Former
Stockholders at any time subsequent to the Closing, such Former
Stockholder shall pay to the Seller by wire transfer of immediately
available funds (within 2 business days of the date of receipt of
consideration for the respective sale) an amount equal to the product
of (x) 0.50 multiplied by (y) the excess (if any) of the net sales
proceeds (that is, the gross sales proceeds reduced by any incurred
brokers fees and other sale costs) with respect to each share of
Sabratek Merger Stock over $6.00 per share. "Sabratek Merger Stock"
means the shares of Sabratek common stock issued to the Former
Stockholders pursuant to the Merger Agreement. Each Former Stockholder
represents and warrants to the Seller that prior to the date of this
Agreement and the Closing he has not sold, transferred or assigned any
Sabratek Merger Stock or any interest therein. Each Former Stockholder
will make available to the Seller and its agents, attorneys and
accountants upon reasonable advance notice all records and work papers
necessary to verify the trading activity of such Former Stockholder of
Sabratek Merger Stock and the related gross sales proceeds; provided
that this right of the Seller shall terminate with respect to a Former
Stockholder 30 days after delivery of written notice to the Seller of
the sale by such Former Stockholder of all of his Sabratek Merger
Stock. Each Former Stockholder agrees not to sell or transfer any
Sabratek Merger Stock for less than fair market value.
6. Seller Representations. The Seller represents and warrants to the Buyer
as follows:
(a) (i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, (ii) the execution, delivery and performance by the
Seller of this Agreement and the other documents and
instruments executed and delivered by the Seller in connection
with this Agreement have been duly authorized by its board of
directors, (iii) the Seller has all necessary corporate power
and authority to consummate the transactions contemplated by
this Agreement, (iv) this Agreement and the other documents
and instruments executed and delivered by the Seller in
connection with this Agreement have been duly executed and
delivered by the Seller, (v) this Agreement and all other
documents and instruments executed and delivered by the Seller
in connection with this Agreement constitute the valid and
binding obligations of the Seller, legally enforceable against
the Seller in accordance with their respective terms and (vi)
the Seller has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which the
Buyer could become liable or obligated.
(b) Neither the execution and the delivery of this Agreement or of
any other document or instrument contemplated hereby to which
the Seller is a party, nor the consummation of the
transactions contemplated hereby or thereby, will (x) violate
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any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any
government, governmental agency, or court to which the Seller is
subject or any provision of its charter or bylaws or (y) 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, cause the creation or imposition of any
security interest or lien, or require any notice or consent under
any agreement, contract, lease, license, instrument or other
arrangement to which the Seller is a party or by which it is bound
or to which its assets is subject, except that the consent of
LaSalle is required to the sale of the SRS Assets to the Buyer. The
consent of LaSalle to the sale of the SRS Assets to the Buyer is
indicated by its signature to this Agreement.
(c) Except for the security interest held by LaSalle and except
for any exceptions disclosed in the Target Disclosure Schedule
(as defined in the Merger Agreement), to the knowledge of the
Seller, SRS owns good and marketable title, free and clear of
all Liens (as hereinafter defined), to the SRS Assets. "Liens"
shall mean any mortgage, pledge, security interest,
conditional sale or other title retention agreement,
encumbrance, easement, option, other lien, debt or claim of
any kind.
7. Buyer Representations. The Buyer and the Former Stockholders represent
and warrant to the Seller as follows:
(a) (i) The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, (ii) the execution, delivery and performance by the
Buyer of this Agreement and the other documents and
instruments executed and delivered by the Buyer in connection
with this Agreement have been duly authorized by its board of
directors, (iii) the Buyer has all necessary corporate power
and authority to consummate the transactions contemplated by
this Agreement, (iv) this Agreement and the other documents
and instruments executed and delivered by the Buyer in
connection with this Agreement have been duly executed and
delivered by the Buyer, (v) this Agreement and all other
documents and instruments executed and delivered by the Buyer
in connection with this Agreement constitute the valid and
binding obligations of the Buyer, legally enforceable against
the Buyer in accordance with their respective terms and (vi)
the Buyer has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which the
Seller could become liable or obligated.
(b) Neither the execution and delivery of this Agreement or of any
other document or instrument contemplated hereby to which the
Buyer is a party, nor the consummation of the transactions
contemplated hereby or thereby, will (x) violate any
constitution,
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statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge or other restriction of any government, governmental
agency, or court to which the Buyer is subject or any provision of
its charter or bylaws or (y) 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 or consent under any agreement, contract, lease,
license, instrument or other arrangement to which the Buyer is a
party or by which it is bound or to which any of its assets is
subject.
8. Representations and Warranties of the Former Stockholders. Each of the
Former Stockholders represents to the Seller (for himself only and not
for any of the other Former Stockholders) as follows: (i) such Former
Stockholder has full capacity, power and authority to make, execute,
deliver, perform and consummate this Agreement and the other documents
and instruments entered into in connection herewith by such
Stockholder; and (ii) this Agreement and the other documents and
instruments entered into in connection herewith by such Stockholder has
been duly executed and delivered by such Former Stockholder and
constitutes the legal, valid and binding obligations of such Former
Stockholder, enforceable against such Former Stockholder in accordance
with its terms. The Former Stockholders represent that they have
offered in writing and verbally on a number of occasions to Phillip
Mitchell or through his attorney the opportunity to participate in the
transactions contemplated by this Agreement on terms comparable to
those obtained by the Former Stockholders.
9. Closing. The closing under this Agreement is taking place
simultaneously with the execution and delivery by the parties of this
Agreement (the "Closing"). At the Closing, (i) a warranty bill of sale
with respect to the transfer of the SRS Assets to the Buyer is being
executed and delivered by the Seller, (ii) an assumption agreement
relating to the SRS Liabilities which are being assumed by the Buyer is
being executed and delivered by the Buyer and the Seller, (iii) each
Former Stockholder is resigning from each position as a director and
officer of SRS by executing this Agreement (and such resignations shall
be effective as of the Closing) and (iv) a wire transfer of immediately
available funds in the amount of the Purchase Price is being made by
the Buyer to the Seller. The parties also contemplate that all of the
employees of SRS immediately prior to the Closing (other than such who
are also employees of Sabratek and its affiliates other than SRS) will
resign as employees of SRS and become employees of the Buyer at the
Closing. In connection with this Agreement and the transactions
contemplated hereby, each of the parties shall comply with all
applicable laws.
10. Agreements of LaSalle. LaSalle hereby (i) agrees to and does
irrevocably consent to the sale of the SRS Assets to the Buyer pursuant
to this Agreement, (ii) agrees to and does irrevocably release any and
all Liens it holds or in which it has any interest on or with respect
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to the SRS Assets and (iii) agrees and covenants that it will, as soon
as practicable after the Closing, deliver to the Buyer appropriate UCC
termination statements and other release documents reasonably requested by
the Buyer relating to the SRS Assets.
11. Power of Attorney. The Seller and SRS hereby grant to the Buyer an
irrevocable power of attorney coupled with an interest to (i) endorse
checks in the name of SRS with respect to any SRS Asset and (ii) bill,
collect and if necessary initiate and prosecute legal actions to
collect work in process and accounts receivable which are part of the
SRS Assets in the name of SRS to effectuate Section 3 of this
Agreement.
12. Financial Information. The Buyer and each of the Former Stockholders
shall make available from time to time subsequent to the Closing to the
Seller and its agents, attorneys and accountants upon reasonable
advance notice (i) all records and work papers reasonably necessary for
the Seller to prepare its quarterly and annual financial statements as
such relate to SRS and (ii) all Buyer employees and agents (including
without limitation Steve Salutric) and all information such persons may
possess to the extent reasonably necessary for the Seller to prepare
its quarterly and annual financial statements as such relate to SRS.
13. Subsequent Assistance. The Seller hereby agrees that it will from time
to time after the Closing, at the request of the Buyer and without
further consideration, execute and deliver to the Buyer such agreements
of conveyance, assignment or transfer as the Buyer reasonably may
require in order to more effectively convey, transfer to and vest in
the Buyer, and put the Buyer in possession of, the SRS Assets. The
Buyer hereby agrees that it will from time to time after the Closing,
at the request of the Seller and without further consideration, execute
and deliver to the Seller such agreements or instruments as the Seller
reasonably may require in order to more effectively consummate the
obligations of the Buyer under this Agreement.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the
State of Illinois.
15. Entire Agreement. This Agreement (including the letter agreement
between the Seller and the Former Stockholders of even date herewith)
constitutes the entire agreement among the parties and supersedes any
prior understandings, agreements or representations by or among the
parties, written or oral, to the extent they related in any way to the
subject matter hereof.
16. Succession. This Agreement shall be binding upon and inure to the
benefit of the parties named herein and their respective successors and
permitted assigns.
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17. Counterparts. This Agreement may be executed in one or more counterparts
(including by facsimile), each of which shall be deemed an original but
all of which together will constitute one and the same agreement.
18. 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.
19. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered
personally to the recipient, one day after being sent to the recipient
by reputable overnight courier service (charges prepaid), upon
machine-generated acknowledgment of receipt after transmittal by
facsimile or five days after being mailed to the recipient by certified
or registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to the intended
recipient at the addresses indicated below or to such other address or
to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.
If to the Seller:
Sabratek Corporation
8111 North St. Louis Avenue
Skokie, Illinois 60076
Attention: CEO
Fax: (847) 720-2330
Copy to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, Illinois 60601
Attn: Carter W. Emerson, P.C.
Fax: (312) 861-2200
If to the Buyer:
Gienko and Associates, Inc.
5 Trenton Court
South Barrington, Illinois 60010
Attention: Robert C. Gienko
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Copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
Attn: Kenneth G. Kolmin
Facsimile: (312) 876-7934
If to a Former Stockholder:
c/o Gienko and Associates, Inc.
5 Trenton Court
South Barrington, Illinois 60010
20. Amendments. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by the Buyer and
the Seller.
21. Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
22. Expenses. Each of the parties will bear its own costs and expenses
(including legal fees and expenses) in connection with this Agreement
and the transactions contemplated hereby.
23. Confidentiality. Neither the Buyer nor any of the Former Stockholders
will disclose to any third party any information with respect to the
terms of this Agreement, the letter agreement between the Seller and
the Former Stockholders of even date herewith or the Registration
Rights Agreement, except (i) upon the prior written consent of the
other parties to this Agreement, (ii) as may be required by law or in
connection with any legal proceeding conducted with respect to this
Agreement or (iii) for information which is publicly known through no
wrongful act or breach of obligation of confidentiality. The foregoing
notwithstanding, the Former Stockholders and/or the Buyer may disclose
the fact that the Buyer has acquired substantially all of the assets of
SRS and assumed certain of its liabilites pursuant to this Agreement.
24. 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 requires otherwise. The word "including" shall mean including
without limitation.
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<PAGE> 11
IN WITNESS WHEREOF, this Transfer Agreement is duly executed and
delivered on the date first above written.
SABRATEK CORPORATION
By: /s/ Joseph Marshall
-------------------------------------
Its: Acting Chief Executive Officer
------------------------------------
STRATEGIC REIMBURSEMENT SERVICES, INC.
By: /s/ Joseph Marshall
-------------------------------------
Its: Vice President
------------------------------------
GIENKO AND ASSOCIATES, INC.
By: /s/ Robert Gienko
-------------------------------------
Its: President
-------------------------------------
FORMER STOCKHOLDERS:
/s/ Robert C. Gienko
----------------------------------------
Signature
Printed Name: Robert C. Gienko
/s/ Mark Pugh
----------------------------------------
Signature
Printed Name: Mark Pugh
/s/ Steve Fagerman
----------------------------------------
Signature
Printed Name: Steve Fagerman
/s/ Kenneth Janowski
----------------------------------------
Signature
Printed Name: Kenneth Janowski
Solely for purposes of consenting to Section 10
of the Transfer Agreement:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ David Shapiro
---------------------------------------
Its: Vice President
--------------------------------------
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