EXHIBIT 2.2
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ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT ("Agreement") is entered into as of July
14, 2000 by and between MRI MEDICAL DIAGNOSTICS, INC., a Colorado corporation
("Buyer"), and MORTGAGE CAPITAL RESOURCE CORPORATION, a California corporation
("Seller").
R E C I T A L S
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A. Buyer has entered into a Securities Purchase Agreement and Plan of
Reorganization ("HomeZipR Agreement") of even date herewith with HomeZipR.com
Corp., a Delaware corporation ("HomeZipR"), pursuant to which Buyer shall
acquire all of the outstanding capital stock of HomeZipR (referred to herein as
the "HomeZipR Transaction").
B. Seller wishes to sell to Buyer, and Buyer wishes to purchase from
Seller, the Assets (as defined in Section 1) concurrent with the closing of the
HomeZipR Transaction, subject to and upon the terms and conditions hereinafter
set forth.
A G R E E M E N T
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It is agreed as follows:
1. SALE AND PURCHASE OF ASSETS. Subject to and upon the terms and
conditions set forth herein, Seller agrees to sell, assign, convey,
transfer and deliver ("Transfer") to Buyer and Buyer agrees to purchase
from Seller, on the Closing Date (as defined in Section 2), the
following assets ("Assets"):
(a) Furniture and equipment identified and described in
the schedule ("Schedule of Furniture and Equipment")
attached as Schedule 1 hereto ("Furniture and
Equipment");
(b) Leases identified and described in the schedule
("Schedule of Leases") attached as Schedule 2 hereto
("Leases");
(c) Lease deposits identified and described in the
schedule ("Schedule of Lease Deposits") attached as
Schedule 3 hereto ("Deposits");
(d) Mortgage loans in process identified and described in
the schedule ("Schedule of Mortgage Loans") attached
hereto as Schedule 4 and all other mortgage loans
initiated by Seller and for which no commitments have
been made for funding, as of the Closing Date
(collectively, "Mortgage Loans"); and
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(e) All business operations ("Business") conducted from
the Seller's call center located in Atlanta, Georgia.
2. CLOSING. The closing ("Closing") of the sale and purchase of the Assets
and the other transactions contemplated by this Agreement shall take
place at the offices of Oppenheimer Wolff & Donnelly LLP, located at
500 Newport Center Drive, Suite 700, Newport Beach, California 92660,
at 2:00 P.M., local time, on July 18, 2000 ("Closing Date"), or at such
other time and place as the parties may mutually agree to in writing.
3. CONSIDERATION. In consideration of the Assets to be transferred by
Seller, Buyer shall issue to Seller 320,463 shares ("Shares") of
Buyer's Series A Preferred Stock with an agreed value of $1,922,778.00.
3.1. SERIES A PREFERRED STOCK. Prior to Closing, Buyer shall take
the appropriate steps, including the filing of a Certificate
of Amendment to its Articles of Incorporation or similar
instrument in substantially the form attached hereto as
Exhibit A with the Secretary of State of Colorado, to create
the Series A Preferred Stock with the terms set forth therein.
Buyer shall deliver to Seller on the Closing Date original
certificates evidencing the Shares, in form and substance
satisfactory to Seller, in order to effectively vest in Seller
all right, title and interest in and to the Shares. From time
to time after the Closing Date, and without further
consideration, Buyer will execute and deliver such other
instruments and take such other actions as Seller may
reasonably request in order to facilitate the issuance to them
of the Shares.
3.2. INSTRUMENTS OF TRANSFER, ETC. Seller shall deliver to Buyer on
the Closing Date and thereafter upon Buyer's request such
bills of sale, assignments and other good and sufficient
instruments of transfer, in form and substance satisfactory to
Buyer, as are necessary to effectively transfer all of
Seller's right, title and interest in the Assets to Buyer.
From time to time after the Closing Date, and without further
consideration, Seller shall execute, acknowledge and deliver
to Buyer any further documents, assurances or other matters,
and will take any other action consistent with the terms of
this Agreement, that may reasonably be requested by Buyer and
as are necessary or desirable to carry out the purpose of this
Agreement.
3.3. ALLOCATION OF PURCHASE PRICE. The parties agree that the
consideration paid by Buyer at the Closing shall be allocated
among the Assets set forth in subparagraphs (a) through (d) of
Section 1, as follows: One Million Two Thousand Two Hundred
Sixty-Nine Dollars ($1,002,269) shall be allocated towards the
purchase of the Furniture and Equipment; Two Hundred
Seventy-Six Thousand Five Hundred Sixty-Six Dollars ($276,566)
shall be allocated towards the purchase of the Leases;
Fifty-Two Thousand Six Hundred Twenty-Nine Dollars ($52,629)
shall be allocated towards the purchase of the Lease Deposits;
and Five Hundred Ninety-One Thousand Three Hundred Fourteen
Dollars ($591,314) shall be allocated towards the purchase of
the Mortgage Loans.
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3.4. ASSUMPTION OF CERTAIN OBLIGATIONS. Buyer shall assume those
liabilities of Seller expressly set forth in the written
contractual obligations included in the leases and mortgage
loans set forth in Schedules 2 and 4 attached hereto ("Assumed
Liabilities"). With the exception of the Assumed Liabilities,
Buyer is not assuming any liabilities or indebtedness of
Seller in connection with the transactions contemplated hereby
and shall have no liability for any such liabilities or
indebtedness by reason of this Agreement or the transactions
contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents, warrants
and covenants to Buyer as of the date hereof and as of the Closing Date
as follows:
4.1. CORPORATE ORGANIZATION. Seller is a corporation duly
organized, validly existing and in good standing under the
laws of the State of California.
4.2. CORPORATE POWER AND AUTHORITY. Seller has all requisite
corporate power and authority to enter into and to carry out
all of the terms of this Agreement and all other documents
executed and delivered in connection herewith, including, but
not limited to, those instruments of transfer described in
Section 3.2 of this Agreement (collectively "Documents"). All
corporate action on the part of Seller, its officers,
directors and shareholders necessary for the authorization,
execution, delivery and performance of the Documents by Seller
has been taken and no further corporate or other authorization
on the part of Seller is required to consummate the
transactions provided for in the Documents. When executed and
delivered by Seller, the Documents shall constitute the valid
and legally binding obligations of Seller enforceable in
accordance with their respective terms. Neither the execution,
delivery nor performance of the Documents by Seller shall (i)
violate or result in a breach of any provisions of Seller's
articles of incorporation or bylaws, (ii) constitute a default
or result in a breach of any contract or agreement to which
Seller is a party or its assets or properties are bound, (iii)
violate any order, writ, injunction, decree, judgment or other
restriction of any court, administrative agency or
governmental body, or (iv) subject to the receipt of all
consents contemplated by Section 4.8, violate any statute,
rule or regulation administered or promulgated by the
California Department of Real Estate, the Federal National
Mortgage Association, the Government National Mortgage
Association, the Federal Home Loan Mortgage Corporation, the
Federal Housing Administration or the Veterans Administration
(collectively, the "Agencies").
4.3. TITLE TO ASSETS. Seller has and will transfer to Buyer good
and marketable title to the Assets, free and clear of all
mortgages, pledges, security interests, liens, claims,
charges, restrictions and encumbrances except for the Assumed
Liabilities.
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4.4. FURNITURE AND EQUIPMENT. Each of the items of Furniture and
Equipment set forth on the Schedule of Furniture and Equipment
are suitable for the purpose or purposes for which it is being
used and is in such good and proper condition and repair as to
permit the continued use by Buyer in accordance with its
intended purpose. The consideration allocated to the Furniture
and Equipment pursuant to Section 3.3 represents the
historical cost of the Furniture and Equipment less
depreciation through the Closing Date calculated on a straight
line method over the estimated useful life of the assets.
4.5. LEASES. All of the Leases set forth in the Schedule of Leases
are in full force and effect, and binding and enforceable in
accordance with their respective terms. Seller is not in
default under any of the Leases nor has there occurred any
event or condition which, with the passage of time or giving
of notice, would constitute a default by Seller under any
Lease. To Seller's best knowledge, the other parties to the
Leases have not defaulted under any Lease nor has there
occurred any event or condition which, with the passage of
time or giving of notice, would constitute a default by the
other party to any Lease. Seller has not received from any
other party to any Lease any claim of default by Seller or any
notice that the other party intends to cancel or terminate the
Lease.
4.6. MORTGAGE LOANS. All of the Mortgage Loans represent loans in
process for which neither Seller nor, to its knowledge, any
agent or broker acting on its behalf has entered into any
commitments or agreements.
4.7. NO GOVERNMENTAL OR OTHER PROCEEDING OR LITIGATION. No order of
any court or administrative agency is in effect which
restrains or prohibits the transactions contemplated hereby,
and no suit, action, investigation, inquiry or proceeding by
any governmental body or other person, or legal or
administrative proceeding has been instituted or threatened
which questions the validity or legality of the transactions
contemplated hereby. There are no actions or proceedings
pending or threatened arising out of or related to the Assets.
There is no voluntary action or proceeding affecting the
Assets pending or the commencement of which is contemplated by
Seller.
4.8. APPROVALS AND CONSENTS. Except for certain investor and agency
notices and consents which shall be delivered or obtained
prior to the Closing, there are no permits, consents or
approvals of public authorities, federal, state or local, or
of any third party necessary for the consummation of the
transactions contemplated hereby.
4.9. TAX MATTERS. Seller has duly filed all federal, state, local
and foreign tax returns and tax reports required to be filed,
and all such returns and reports are true and correct. All
federal, state, county, local or other taxes, including
without limitation, all income taxes, corporate franchise
taxes, property and ad valorem taxes, sales and use taxes and
license and payroll taxes, and all assessments, or
deficiencies and fees, interest, penalties or other
governmental charges relating thereto (collectively "Taxes"),
which are now due and payable by Seller have been paid. Seller
has no liability for any accrued, unpaid or deferred Taxes
that would be material in amount, and Seller has sufficient
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working capital to provide for and will pay when due all such
accrued, unpaid or deferred Taxes. No examination is pending
by the Internal Revenue Service ("Service") or any other
taxing authority with respect to any of the tax returns or tax
reports of Seller. To the best knowledge of Seller, no state
of facts exists or has existed which would constitute grounds
for the assessment of any liability for Taxes with respect to
any taxable period. There are no outstanding agreements or
waivers extending the statutory period of limitation
applicable to any tax return or report for any taxable period.
Seller shall pay when due any and all Taxes, including,
without limitation, sales or use taxes, arising out of this
Agreement or the consummation of the transactions contemplated
hereby.
4.10. OTHER INFORMATION. No portion of this Agreement, any Schedule
or Exhibit attached hereto or any other Document furnished or
to be furnished by Seller or any of its authorized
representatives to Buyer or any of its authorized
representatives is false or misleading or omits to state a
fact required to be stated therein in order to make any of the
statements therein not misleading in light of the
circumstances under which they were made. There is no fact
known to Seller which adversely affects or in the future is
likely to adversely affect the Assets which has not been
described or set forth or referred to in this Agreement, any
Schedule or Exhibit hereto or any other Document.
4.11. INVESTMENT AND RELATED REPRESENTATIONS. Seller is aware that
neither the Shares nor the offer or sale thereof to Seller has
been registered under the Securities Act of 1933, as amended
("Act"), or under any state securities law. Seller understands
that the Shares will be characterized as "restricted"
securities under federal securities laws inasmuch as they are
being acquired in a transaction not involving a public
offering and that under such laws and applicable regulations
such securities may be resold without registration under the
Act only in certain limited circumstances. Seller agrees that
Seller will not sell all or any portion of the Shares except
pursuant to registration under the Act or pursuant to an
available exemption from registration under the Act. Seller
understands and acknowledges that all certificates
representing the Shares shall bear the following legend or a
legend of similar import and that Buyer shall refuse to
transfer the Shares except in accordance with such
restrictions:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER CERTAIN STATE SECURITIES LAWS. NO SALE OR
TRANSFER OF THESE SHARES MAY BE MADE IN THE ABSENCE OF (1) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (2) AN
OPINION OF COUNSEL THAT REGISTRATION UNDER THE ACT OR UNDER
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION
WITH SUCH PROPOSED SALE OR TRANSFER."
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5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents, warrants and
covenants to and with Seller as follows. As used herein, the term
"Buyer Disclosure Schedule" shall refer to the Buyer Disclosure
Schedule attached as Schedule 5 hereto. Except as set forth in the
Buyer Disclosure Schedule:
5.1. ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing, and in good standing under the
laws of the State of Colorado and has full corporate power and
authority to enter into and perform its obligations under this
Agreement.
5.2. CAPITALIZATION. The authorized capital stock of Buyer consists
of 50,000,000 shares of Common Stock, no par value, of which
16,023,157 shares of Common Stock are issued and outstanding,
and 10,000,000 shares of preferred stock, 5,500,000 of which
are designated as Series A Preferred Stock, none of which are
currently outstanding. All outstanding shares of Buyer's
Common Stock were offered and sold in compliance with
applicable state and federal securities laws, have been duly
authorized and validly issued, and are fully paid,
nonassessable, and free of any preemptive rights. There are no
warrants, options, subscriptions, calls, other similar rights
to purchase any of Buyer's capital stock, and there are no
voting, pooling or voting trust agreements, arrangements or
contracts by and among Buyer, its shareholders, or any of
them.
5.3. VALIDITY OF TRANSACTIONS. (i) This Agreement, and each
document executed and delivered by Buyer in connection with
the transactions contemplated by this Agreement, and the
performance of the transactions contemplated therein have been
duly authorized by the directors of Buyer, have been duly
executed and delivered by Buyer and is each the valid and
legally binding obligation of Buyer, enforceable in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency reorganization and moratorium laws and other laws
affecting enforcement of creditor's rights generally and by
general principles of equity; (ii) Buyer Shares issuable
hereunder, when issued in accordance with the terms of this
Agreement, will be duly authorized, validly issued, fully paid
and nonassessable; and (iii) Buyer Shares will be free of any
liens or encumbrances, except for any restrictions imposed by
federal or state securities laws.
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5.4. NO CONFLICT. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby do
not and will not conflict with, or result in a breach of any
term or provision of, or constitute a default under or result
in a violation of (i) the Articles of Incorporation or Bylaws
of Buyer, as amended, (ii) any agreement, contract, lease,
license or instrument to which Buyer is a party or by which
Buyer or any of its properties or assets are bound, or (iii)
any judgment, decree, order, or writ by which Buyer is bound
or to which it or any of its properties or assets are subject.
5.5. APPROVALS AND CONSENTS. There are no permits, consents,
mandates or approvals of public authorities, either federal,
state or local, or of any third party necessary for Buyer's
consummation of the transactions contemplated hereby.
5.6. SEC REPORTS. Buyer has delivered to Seller its Annual Report
on Form 10-K for the year ending March 31, 2000 (the "SEC
Reports"). The information in the SEC Reports is true and
correct in all material respects and does not contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
5.7. LITIGATION. There are no suits or proceedings (including
without limitation, proceedings by or before any arbitrator,
government commission, board, bureau or other administrative
agency) pending or, to the knowledge of Buyer, threatened
against or affecting Buyer, the officers or directors of Buyer
or any of their respective affiliates or which questions or
threatens the validity of this Agreement or any action to be
taken in connection therewith, and neither Buyer nor any of
its assets is subject to or in default with respect to any
order, writ, injunction or decree of any federal, state, local
or other governmental department. Buyer has not commenced and
does not currently intend to commence any legal proceedings
against any other person or entity.
5.8. TAXES. All federal income tax returns and state and local
income tax returns for Buyer have been filed as required by
law. All taxes as shown on such returns or on any assessment
received subsequent to the filing of such returns have been
paid, and there are no pending assessments or adjustments or
any income tax payable for which reserves, which are
reasonably believed by Buyer to be adequate for the payment of
any additional taxes that may come due, have not been
established. All other taxes imposed by any government
authority on Buyer have been paid and any reports or returns
due in connection therewith have been filed. No outstanding
claim for assessment or collection of taxes has been asserted
against Buyer and there are no pending, or to the knowledge of
Buyer, threatened tax audits, examinations or claims.
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5.9. NO DEFAULTS. No material default (or event which, with the
passage of time or the giving of notice, or both, would become
a material default) exists or is alleged to exist with respect
to the performance of any obligation either of Buyer under the
terms of any indenture, license, mortgage, deed of trust,
lease, note, guaranty, joint venture agreement, operating
agreement, partnership agreement, or other contract or
instrument to which Buyer is a party or any of its assets are
subject, or by which it is otherwise bound, and, to the best
knowledge of Buyer, no such default or event exists or is
alleged to exist with respect to the performance of any
obligation of any party thereto.
5.10. CORPORATE DOCUMENTS. Buyer has furnished to Seller true and
complete copies of the Articles of Incorporation and Bylaws of
Buyer certified by its secretary and copies of the resolutions
adopted by Buyer's Board of Directors authorizing and
approving this Agreement and the transactions contemplated
hereby. Buyer has made available to Seller and their
representatives all corporate minute books of Buyer, and such
minute books contain complete and accurate records of the
proceedings of Buyer's shareholders and directors.
5.11. CONTRACTS AND OTHER COMMITMENTS. Buyer does not have and is
not bound by any contract, agreement, lease, commitment or
proposed transaction, judgment, order, writ or decree, written
or oral, absolute or contingent.
5.12. COMPLIANCE WITH LAWS. Buyer has complied in all material
respects with all laws, regulations and orders affecting its
business and operations and is not in default under or in
violation of any provision of any federal, state or local
rule, regulation or law, including without limitation, any
applicable statute, law or regulation relating to the
environment or occupational health and safety, and no material
expenditures are or will be required in order to comply with
any such existing statute, law or regulation.
5.13. NO ASSETS OR LIABILITIES. Except as set forth in the SEC
Reports, Buyer represents and warrants that it does not have
any assets, liabilities or operations.
5.14. ABSENCE OF CERTAIN CHANGES. Since the date of Buyer's
financial statements which are included in its Form 10-K for
the year ended March 31, 2000, there has not been any Material
Adverse Change. For the purposes hereof, "Material Adverse
Change" means any event, circumstance, condition, development
or occurrence causing, resulting in, having or that could
reasonably be expected to have, a material adverse effect on
the business, assets or financial condition of Buyer.
5.15. BROKERS AND FINDERS. Buyer not dealt with any broker or finder
in connection with the transactions contemplated hereby. Buyer
has not incurred, nor shall it incur, directly or indirectly,
any liability for any brokerage or finders' fees, agent
commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
5.16. INTERCOMPANY AND AFFILIATE TRANSACTIONS; INSIDER INTERESTS.
There are, and during the last two years there have been, no
transactions, agreements or arrangements of any kind, direct
or indirect, between Buyer and any director, officer,
employee, stockholder, or affiliate of Buyer, including,
without limitation, loans, guarantees or pledges to, by or for
Buyer or from, to, by or for any of such persons, that are
currently in effect.
5.17. ACCURACY OF INFORMATION. None of the representations or
warranties or information provided and to be provided by Buyer
to Seller this Agreement, or any schedules or exhibits hereto,
contains or will contain any untrue statement of a material
fact or omits or will omit to state any material facts
necessary in order to make the statements and facts contained
herein or therein not false or misleading. Copies of all
documents heretofore or hereafter delivered or made available
to Seller pursuant hereto were or will be complete and
accurate records of such documents.
6. CERTAIN ADDITIONAL UNDERSTANDINGS AND AGREEMENTS.
6.1. SELLER'S REGISTRATION RIGHTS.
6.1.1. CERTAIN DEFINITIONS. As used in this Section 6.1, the
following definitions shall apply:
"ACT" means the Securities Act of 1933, as amended.
"COMMISSION" means the Securities and Exchange
Commission or any other federal agency at the time administering the Act.
"EFFECTIVE DATE" means the date on which the
registration statement relating to the Registrable Securities is declared
effective by the Commission.
"HOLDER" means any holder of outstanding Registrable
Securities.
"REGISTERED SHARES" means the registered Registrable
Securities.
"REGISTRABLE SECURITIES" means the each of the
following: (a) the Shares, and (b) any Common Stock issued as a dividend or
other distribution with respect to, or in exchange for or in replacement of, the
Shares, provided, however, that Registrable Securities shall not include any
Shares or other securities which have previously been registered and sold to the
public.
"REGISTRATION EXPENSES" means all expenses incurred
by Buyer in complying with Section 6.1.2 hereof including, without limitation,
all registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for Buyer, blue sky fees and expenses, and the expense
of any special audits incident to or required in connection with any such
registration. Registration Expenses shall not include selling commissions,
discounts or other compensation paid to underwriters or other agents or brokers
to effect the sale of any Registrable Securities.
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The terms "REGISTER," "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Act (and any post-effective amendments filed in
connection therewith), and the declaration of the effectiveness of such
registration statement.
"SELL" means sell, contract to sell, or make any
other disposition of, other than for estate planning purposes, or grant any
purchase option for the sale of, any of the Registrable Securities, except for
bona fide gifts to persons who agree to the terms set forth in this Section 6.1.
6.1.2. REGISTRATION. Buyer shall:
(a) As soon as is reasonably practicable
following the Closing, file with the
Commission a registration statement on an
appropriate form, including the Registrable
Securities among the securities being
registered pursuant to such registration
statement. Buyer shall thereafter use its
reasonable best efforts to cause such
registration statement to become effective
as soon as reasonably possible. Such
registration statement shall cover the
resale of the Registrable Securities. Buyer
will promptly notify the Holder regarding
(i) the filing of such registration
statement and all amendments thereto, (ii)
the effectiveness of such registration
statement and any post-effective amendments
thereto, (iii) the occurrence of any event
or condition that causes the prospectus that
is part of such registration statement no
longer to comply with the requirements of
the Act, and (iv) any request by the
Commission for any amendment or supplement
to such registration statement or any
prospectus relating thereto;
(b) Prepare and file with the Commission such
amendments and supplements to such
registration statement and the prospectus
used in connection therewith as may be
necessary to keep such registration
statement effective and current and to
comply with the provisions of the Act with
respect to the resale of the Registrable
Securities, including such amendments and
supplements as may be necessary to reflect
the intended method of disposition of the
Holder, but for no longer than 365 days
after the Closing Date.
(c) Furnish to each Holder such number of copies
of a prospectus, including a preliminary
prospectus, in conformity with the
requirements of the Act, and such other
documents as such Holder may reasonably
request in order to facilitate the public
sale or other disposition of the Registrable
Securities by such Holder;
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(d) Use its best efforts to register or qualify
the Registrable Securities under such
securities or blue sky laws of any state as
a Holder may reasonably request, and do any
and all other acts which may be reasonably
necessary or advisable to enable such Holder
to dispose of Registrable Securities in such
jurisdictions;
(e) Use its best efforts to comply with all
applicable rules and regulations of the
Commission, including without limitation the
rules and regulations relating to the
periodic reporting requirements under the
Securities Exchange Act of 1934, as amended;
and
6.1.3. EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with the registration,
qualification or compliance pursuant to Section 6.1
hereof shall be borne by Buyer.
6.1.4. INDEMNIFICATION. In the event that any of the
Registrable Securities are included in a registration
statement under this Section 1:
(a) The Company will indemnify each Holder, each
of its officers and directors and partners
and each person controlling such Holder
within the meaning of Section 15 of the Act,
and each underwriter, if any, and each
person who controls any underwriter within
the meaning of Section 15 of the Act,
against all expenses, claims, losses,
damages or liabilities (or actions in
respect thereof), including any of the
foregoing incurred in settlement of any
litigation, commenced or threatened, arising
out of or based on any untrue statement (or
alleged untrue statement) of a material fact
contained in any registration statement,
prospectus, or other document, or any
amendment or supplement thereto, incident to
any such registration, qualification or
compliance, or based on any omission (or
alleged omission) to state therein a
material fact required to be stated therein
or necessary to make the statements therein,
not misleading, or any violation by Buyer of
any rule or regulation promulgated under the
Act applicable to Buyer in connection with
any such registration, qualification or
compliance, and Buyer will reimburse the
Holder, each of its officers and directors
and partners and each person controlling
such Holder, each such underwriter and each
person who controls any such underwriter,
for any legal and any other expenses
reasonably incurred in connection with
investigating or defending any such claim,
loss, damage, liability or action, provided
that Buyer will not be liable in any such
case to the extent that any such claim,
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loss, damage, liability or expense arises
out of or is based on any untrue statement
or omission or alleged untrue statement or
omission, made in reliance upon and in
conformity with written information
furnished to Buyer by such Holder or
underwriter for use therein.
(b) Each Holder will indemnify Buyer, each of
its directors and officers, its legal
counsel and independent accountants, each
underwriter, if any, of Buyer's securities
covered by such registration statement, each
person who controls Buyer or such
underwriter within the meaning of Section 15
of the Act, and each other selling
shareholder, each of its officers and
directors and partners and each person
controlling such selling shareholder within
the meaning of Section 15 of the Act,
against all claims, losses, damages and
liabilities (or actions in respect thereof)
arising out of or based on any untrue
statement (or alleged untrue statement) of a
material fact contained in any such
registration statement, prospectus, offering
circular or other document, or any omission
(or alleged omission) to state therein a
material fact required to be stated therein
or necessary to make the statements therein
not misleading and to reimburse Buyer, such
holders, such directors, officers, counsel,
accountants, persons, underwriters or
control persons for any legal or any other
expenses reasonably incurred in connection
with investigating or defending any such
claim, loss, damage, liability or action, in
each case to the extent, but only to the
extent, that such untrue statement (or
alleged untrue statement) or omission (or
alleged omission) is made in such
registration statement, prospectus, offering
circular or other document in reliance upon
and in conformity with written information
furnished to Buyer by the Holder
specifically for use therein.
(c) Each party entitled to indemnification under
this Section 6.1.4 (the "Indemnified Party")
shall give notice to the party required to
provide indemnification (the "Indemnifying
Party") promptly after such Indemnified
Party has actual knowledge of any claim as
to which indemnity may be sought, provided,
that any failure to so notify an
Indemnifying Party shall not relieve such
party from any liability under this Section
6.1.4 to the extent it is not materially
<PAGE>
prejudiced as a result thereof, and shall
permit the Indemnifying Party to assume the
defense of any such claim or any litigation
resulting therefrom, provided that counsel
for the Indemnifying Party, who shall
conduct the defense of such claim or
litigation, shall be approved by the
Indemnified Party (which approval shall not
unreasonably be withheld), and the
Indemnified Party may participate in such
defense at such Indemnified Party's expense
(unless the Indemnified Party shall have
reasonably concluded that there may be a
conflict of interest between the
Indemnifying Party and the Indemnified Party
in such action, in which case the fees and
expenses of counsel shall be at the expense
of the Indemnifying Party, provided that in
such event the Indemnifying Party shall not
be responsible for the fees of more than one
counsel to the Indemnified Parties). No
Indemnifying Party, in the defense of any
such claim or litigation, shall, except with
the consent of each Indemnified Party,
consent to entry of any judgment or enter
into any settlement which does not include
as an unconditional term thereof the giving
by the claimant or plaintiff to such
Indemnified Party of a release from all
liability in respect to such claim or
litigation. No Indemnifying Party shall be
liable for any settlement entered into
without its written consent, which consent
shall not be unreasonably withheld.
6.1.5. CONTRIBUTION.
(a) If the indemnification provided for in
Section 6.1.4 hereof is for any reason
unavailable to or insufficient to hold
harmless an Indemnified Party in respect of
any losses, liabilities, claims, damages or
expenses referred to therein, then each
Indemnifying Party shall contribute to the
aggregate amount of such losses,
liabilities, claims, damages and expenses
incurred by such Indemnified Party, as
incurred, (i) in such proportion as is
appropriate to reflect the relative benefits
received by the Holder on the one hand and
<PAGE>
Buyer on the other hand from the offer and
sale of the Registered Securities pursuant
to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by
applicable law, in such proportion as is
appropriate to reflect not only the relative
benefits referred to in clause (i) above but
also the relative fault of the Holder on the
one hand and of Buyer on the other hand in
connection with the statements or omissions
which resulted in such losses, liabilities,
claims, damages or expenses, as well as any
other relevant equitable considerations.
(b) The relative fault of Buyer on the one hand
and the Holder on the other hand shall be
determined by reference to, among other
things, whether any such untrue or alleged
untrue statement of a material fact or
omission or alleged omission to state a
material fact relates to information
supplied by Buyer or by the Holder and the
parties' relative intent, knowledge, access
to information and opportunity to correct or
prevent such statement or omission.
(c) The Company and the Holder agree that it
would not be just and equitable if a
contribution pursuant to this Section 6.1.5
were determined by pro rata allocation or by
any other method of allocation which does
not take account of the equitable
considerations referred to above. The
aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an
Indemnified Party and referred to above in
this Section 6.1.5 shall be deemed to
include any legal or other expenses
reasonably incurred by such Indemnified
Party in investigating, preparing or
defending against any litigation, or any
investigation or proceeding by any
governmental agency or body, commenced or
threatened, or any claim whatsoever based
upon any such untrue or alleged untrue
statement or omission or alleged omission.
6.1.6. INFORMATION BY HOLDER. Each Holder of Registrable
Securities shall furnish to Buyer such information
regarding such Holder, such Holder's Registrable
Securities and such Holder's intended method of
disposition as Buyer may from time to time reasonably
request; provided that such information shall be used
only in connection with such registration.
(a) DUTY TO UPDATE. If the registration
statement covering the Registrable
Securities refers to any Holder by name or
otherwise as the Holder of any securities of
Buyer, then such Holder shall promptly (i)
notify Buyer and its counsel of the
existence of any fact of which such Holder
becomes aware and the happening of any event
which relates to Holder or the distribution
of the securities owned by such Holder which
results in the registration statement
containing an untrue statement of material
fact or omitting to state a material fact
<PAGE>
required to be stated therein or necessary
to make any statements therein not
misleading, or the prospectus included in
such registration statement containing an
untrue statement of material fact or
omitting to state a material fact required
to be stated therein or necessary to make
any statements therein, in light of the
circumstances under which they were made,
not misleading, and (ii) provide to Buyer
such information which relates to Holder or
the distribution of the securities owned by
such Holder as shall be necessary to enable
Buyer to prepare a supplement or
post-effective amendment to such
registration statement or related prospectus
or any document incorporated therein by
reference or file any other documents
required so that such registration statement
will not contain any untrue statement of a
material fact or omit to state a material
fact required to be stated therein or
necessary to make the statements therein not
misleading, and such prospectus shall not
include an untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein, in light of
the circumstances under which they were
made, not misleading.
6.1.7. NOTICE TO DISCONTINUE. Each holder of Registrable
Securities agrees that, upon receipt of any notice
from Buyer of the happening of any of the following:
(i) receipt by Buyer of any request by the Commission
or any other federal, or state governmental authority for post-effective
amendments or supplements to a registration statement or related prospectus
covering the Registrable Securities, or for additional information relating
thereto;
(ii) any issuance by the Commission of any stop order
suspending the effectiveness of a registration statement covering the
Registrable Securities or the initiation of any proceedings for that purpose;
(iii) the receipt by Buyer of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose; or
(iv) the happening of any event that makes any
statement made in any registration statement covering the Registrable Securities
or prospectus relating thereto or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such registration statement, prospectus or
documents so that, in the case of the registration statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
<PAGE>
such Holder shall forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt from Buyer of copies of a supplemented or amended
prospectus and, if so directed by Buyer, such Holder shall deliver to Buyer (at
Buyer's expense) all copies, other than permanent file copies, then in such
Holder's possession of the prospectus covering such Registrable Securities which
is current at the time of receipt of such notice. If Buyer shall give any such
notice, Buyer shall extend the period during which such Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
in excess of ten (10) business days during the period from and including the
date of the giving of such notice pursuant to Section __ (e) to and including
the date when the Holder shall have received the copies of the supplemented or
amended prospectus.
6.1.8. SELECTION OF UNDERWRITERS. In the event that any
Holder elects to engage an underwriter in connection
with the sale of any Registered Securities, the
selection of such underwriter shall be subject to the
prior approval of Buyer, in its sole discretion,
provided, however, that such approval shall not be
unreasonably withheld.
6.1.9. RULE 144. The Company covenants that, for the two
years following the Closing Date, it shall (a) file
any reports required to be filed by it under the
Securities Exchange Act of 1934 and the rules and
regulations adopted by the Commission thereunder; (b)
make and keep public information available as those
terms are understood and defined in Rule 144; and (c)
take such further action as each Holder of
Registrable Securities may reasonably request
(including providing any information necessary to
comply with Rules 144 and 144A), all to the extent
required from time to time to enable such Holder to
sell Registrable Securities without registration
under the Act within the limitation of the exemptions
provided by (i) Rule 144 or Rule 144A, as such rules
may be amended from time to time, or (ii) any similar
rules or regulations hereafter adopted by the
Commission. The Company shall, upon the request of
any Holder of Registrable Securities, deliver to such
Holder a written statement as to whether it has
complied with such requirements.
6.2. AGREEMENT TO PERFORM NECESSARY ACTS. Each party agrees to
perform any further acts and execute and deliver any documents
which may be reasonably necessary to carry out the provisions
and purposes of this Agreement.
7. CONDITIONS TO BUYER'S OBLIGATIONS. Buyer's obligations hereunder are
subject to the fulfillment, on or before the Closing Date, of the
following conditions (any of which may be waived in writing by Buyer):
<PAGE>
7.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained herein shall have been true and
correct in all material respects as of the Closing Date.
7.2. PERFORMANCE OF COVENANTS. Seller shall have performed and
complied in all material respects with all covenants,
agreements, terms and conditions and executed all documents
required by this Agreement to be performed, complied with or
executed by it prior to or on the Closing Date.
7.3. INSTRUMENTS OF TRANSFER. Seller shall have delivered to Buyer
a bill of sale in respect of the Furniture and Equipment and
an assignment of the Receivables and Notes and Deeds of Trust
and such other good and sufficient instruments of Transfer in
form and substance satisfactory to Buyer and its counsel as
shall be necessary to effectively Transfer all of the Seller's
right, title and interest in the Assets to Buyer.
7.4. NO GOVERNMENTAL OR OTHER PROCEEDING OR LITIGATION. No order of
any court or administrative agency shall be in effect which
restrains or prohibits the transactions contemplated hereby,
and no suit, action, investigation, inquiry or proceeding by
any governmental body or other person or legal or
administrative proceeding shall have been instituted or
threatened which questions the validity or legality of the
transactions contemplated hereby.
7.5. APPROVAL AND CONSENTS. All permits, consents or approvals of
applications to public authorities, federal, state or local,
and all approvals of any third persons, the granting of which
are necessary for the consummation of the transactions
contemplated hereby shall have been obtained, including, but
not limited to, all consents required by agencies and
investors to the Transfer of the Mortgage Loans and Servicing
Agreements.
7.6. HOMEZIPR TRANSACTION. The HomeZipR Transaction shall close
prior to or concurrent with the transactions under this
Agreement.
8. CONDITIONS TO SELLER'S OBLIGATIONS. Seller's obligations hereunder are
subject to the fulfillment, on or before the Closing Date, of the
following conditions (any of which may be waived in writing by Seller):
8.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer contained herein shall have been true and
correct in all material respects as of the Closing Date.
8.2. PERFORMANCE OF COVENANTS. Buyer shall have performed and
complied in all material respects with all covenants,
agreements, terms and conditions and executed all documents
required by this Agreement to be performed, complied with or
executed by it prior to or on the Closing Date.
<PAGE>
8.3. APPROVAL AND CONSENTS. All permits, consents or approvals of
applications to public authorities, federal, state or local,
and all approvals of any third persons, the granting of which
are necessary for the consummation of the transactions
contemplated hereby shall have been obtained, including, but
not limited to, all consents required by agencies and
investors to the Transfer of the Mortgage Loans and Servicing
Agreements.
8.4. HOMEZIPR TRANSACTION. The HomeZipR Transaction shall close
prior to or concurrent with the transactions under this
Agreement.
9. INDEMNIFICATION.
9.1. GENERAL. The parties hereto agree to indemnify, defend and
hold harmless each other against and in respect of any and all
claims, demands, losses, costs, expenses, liabilities and
damages, including interest, penalties, and reasonable
attorneys' fees, that either party shall incur or suffer which
arise, result from or relate to any material inaccuracy in or
material breach or nonfulfillment of any of the
representations, warranties, covenants or agreements made by
the other party in this Agreement, the Schedules and Exhibits
hereto or in any other Document furnished to such party under
this Agreement.
9.2. PROCEDURES; RIGHTS TO SEPARATE COUNSEL. In the event either
party receives a complaint, claim or other notice of any loss,
claim or damage, liability or action, giving rise to a claim
for indemnification under this Section 9, the party claiming
indemnification shall promptly notify the other party of such
complaint, notice, claim or action, and such indemnifying
party shall have the right to investigate and defend any such
loss, claim, damage, liability or action. The party claiming
indemnification shall have the right to employ separate
counsel in any such action and to participate in the defense
thereof but the fees and expenses of such counsel shall not be
at the expense of the party against whom indemnification is
sought, unless the indemnifying party fails to promptly
defend, in which case the fees and expenses of such separate
counsel shall be borne by the party against whom
indemnification is sought. In no event shall a party against
whom indemnification is sought be obligated to indemnify the
other for any settlement of any claim or action effected
without the indemnifying party's prior written consent.
10. GENERAL.
10.1. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given when
delivered personally or, if mailed, three (3) business days
after having been mailed by registered or certified mail with
return receipt requested, postage prepaid, addressed:
(a) If to Buyer:
MRI Medical Diagnostics, Inc.
480 Camino Del Rio South, Suite 140
San Diego, California 92108
<PAGE>
(b) If to Seller:
Mortgage Capital Resource Corporation
3 Hutton Centre, Suite 150
Santa Ana, California 92707
Attention: Roger W. Luby, Chief Executive
Officer
or at such other address as shall have been furnished to the other in writing.
10.2. SUCCESSORS AND ASSIGNS. Neither this Agreement nor the rights
or obligations of Seller under this Agreement shall be
assignable without the written consent of Buyer and any such
purported assignment without the written consent of Buyer
shall be void and with effect. Except as otherwise provided
herein, this Agreement and all covenants and agreements
contained herein shall be binding upon and inure to the
benefit of the parties hereto, their respective successors,
representatives and assigns.
10.3. ATTORNEYS' FEES. If any legal action or any mutually agreed
upon arbitration or other proceeding is brought for the
enforcement of this Agreement or because of an alleged
dispute, breach, default or misrepresentation in connection
with any of the provisions of this Agreement, the successful
or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it may be
entitled.
10.4. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding among the parties hereto with respect to the
subject matter hereof.
10.5. MODIFICATION. This Agreement may be changed, waived,
discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change,
waiver, discharge or termination is sought.
10.6. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of California.
10.7. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which is an original but all of which
shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on the day and year first hereinabove written.
"SELLER"
MORTGAGE CAPITAL RESOURCE CORPORATION,
a California corporation
By: /s/ Roger W. Luby
------------------------------------------
Roger W. Luby Chief Executive Officer
"BUYER"
MRI MEDICAL DIAGNOSTICS, INC.,
a Colorado corporation
By:
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