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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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):
July 31, 1996
MEDICAL TECHNOLOGY AND INNOVATIONS, INC., F/K/A SOUTHSTAR
PRODUCTIONS, INC.
(Exact name of registrant as specified in this charter)
FLORIDA 33-27610-A 65-0278549
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(State or other jurisdiction (Commission (IRS Employer
of incorporation File Number) Identification No.)
3125 NOLT ROAD, LANCASTER, PA 17601
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(Address of principal executive offices)
Registrant's telephone number, including area code (717)892-6770
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
Not Applicable.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On July 31, 1996, the Registrant purchased the assets of Sumacar, Inc,
formerly know as Steridyne Corporation, a Florida Corporation ("Steridyne"). The
purchase price for the assets was $3,500,000 plus the satisfaction of
Steridyne's debts to Enterprise Bank and First Union Bank in the amounts of
$254,292.46 and 644,958.92 respectively. Steridyne manufactures and markets a
wide variety of medical products, principally in the temperature-taking field. A
number of products are manufactured for the company under private label.
Distribution is through an authorized dealer network, utilizing sales
representatives throughout the nation.
ITEM 3. BANKRUPTCY OR RECEIVERSHIP.
Not applicable.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM 5. OTHER EVENTS.
Not Applicable.
ITEM 6. RESIGNATION OF REGISTRANT'S DIRECTORS.
Not applicable.
ITEM 7. FINANCIAL STATEMENT AND EXHIBITS.
(a) EXHIBITS
1. Asset Purchase Agreement with respect to
Registrant's purchase of Steridyne's assets.
ITEM 8. CHANGE IN FISCAL YEAR
Not applicable.
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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.
MEDIAL TECHNOLOGY AND INNOVATIONS, INC.
(Registrant)
By:/s/ JEREMY FEAKINS
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Jeremy Feakins, President
Dated: July 31, 1996
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EXHIBIT 7 (a) (1)
ASSET PURCHASE AGREEMENT
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ASSETS PURCHASE AGREEMENT
This Asset Purchase Agreement is entered into this day by and between
STERIDYNE CORPORATION, a Florida corporation ("Seller"), and MEDICAL TECHNOLOGY
AND INNOVATIONS, INC., a Florida corporation ("Purchaser").
WHEREAS, Seller operates a business primarily engaged in the
manufacturing and wholesale distribution of the products listed in Schedule A;
and
WHEREAS, Seller owns equipment, inventories, contract rights, leasehold
interests, and miscellaneous assets used in connection with the operation of its
business; and
WHEREAS, Purchaser desires to acquire all the assets and certain
liabilities of Seller, and Seller desires to sell such assets and liabilities to
Purchaser; and
WHEREAS, said assets and liabilities which are to be purchased by
Purchaser will be placed in a newly formed corporation which will be a wholly
owned subsidiary of Purchaser (the "Subsidiary").
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. ASSETS PURCHASED; LIABILITIES ASSUMED. Seller agrees to
sell to Purchaser and Purchaser agrees to purchase from Seller, on the terms and
conditions set forth in this Agreement, all the Seller's assets, including its
corporate name, set forth on Schedule 1, and only those liabilities forth on
Schedule 1 annexed hereto. ("A&L"). It is understood that the life insurance
policies on the lives of the Seller's Shareholders and any loans due Seller's
Shareholders, not in excess of $30,000, are not included in the assets sold to
Purchaser.
1.1 The A&L shall be the initial capital of the Subsidiary.
SECTION 2. PURCHASE PRICE FOR ASSETS AND LIABILITIES. The purchase
price (the "PP") for the A&L shall be $3,500,000.
SECTION 3. PAYMENT OF PURCHASE PRICE. The PP shall be payable as
follows:
3.1. DEPOSIT. Upon execution of the Agreement, the sum of
$25,000 to be held in trust by Purchaser's attorneys Bailey, Fishman, Freeman &
Ferrin.
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3.2. ADDITIONAL DEPOSIT. Within 10 days of the expiration of
the Due Diligence Period, an additional $75,000 deposit to be held by
Purchaser's attorneys Bailey, Fishman, Freeman & Ferrin.
3.2. CASH BALANCE. The cash balance of the purchase price,
$3,400,000 shall be paid at closing in the form of a wire transfer, bank,
certified or cashiers check.
3.4 ADDITIONAL COMPENSATION. In addition to the foregoing,
the Purchaser shall pay the Seller an amount equal to 6% of the gross profits of
the sale of all existing products of Seller which will, as of the Closing, be
owned by Subsidiary, as that term is defined by generally accepted accounting
principals ("GAAP"), for the first three years following the Closing. This
amount shall be paid quarterly, and may be readjusted quarterly if there is a
loss in any preceding quarter.
3.5. Adjustment to Purchase Price. In the event that the
combined "net" of the assets and liabilities of Seller which are being purchased
by Purchaser, determined as of the month immediately prior to of Closing, either
increases or decreases by more than 10% from the "net" on Seller's March 1996
balance sheet, the cash portion of the PP shall be adjusted accordingly to
reflect said change in excess of the 10%.
Section 4. EMPLOYMENT AGREEMENTS. At Closing, Purchaser shall enter
into the Employment Agreements which are annexed hereto as Exhibit 4.1, 4.2 and
4.3. The parties recognize that each employment agreement contains a non-compet
clause, which non-compete clause is incorporated herein and made a part of this
agreement.
SECTION 5. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants to Purchaser as follows:
5.1 CORPORATE EXISTENCE. Seller is now and on the Closing
Date will be a corporation duly organized and validly existing and in good
standing under the laws of the State of Florida. Seller has all requisite
corporate power and authority to own, operate and/or lease the Assets, as the
case may be, and to carry on its business as now being conducted.
5.2 AUTHORIZATION. The execution, delivery, and performance
of this Agreement has been duly authorized and approved by the Board of
Directors and Shareholders of Seller, and this Agreement constitutes a valid and
binding Agreement of Seller in accordance with its terms.
5.3 FINANCIAL STATEMENTS. Attached hereto as Schedule
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5.3 B are Seller's unaudited financial statements for the periods March 31, 1996
("Financial Statements"). The Financial Statements are in accordance with the
books and records of Seller and are true, correct, and complete; fairly present
financial conditions of Seller at the dates of such Financial Statements and the
results of its operations for the periods then ended; and were prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior accounting periods. Since the date of the Financial
Statements, there has been no material adverse change in the financial condition
of Seller.
5.4 TITLE TO ASSETS. Seller holds good and marketable title
to the Assets, free and clear of restrictions on or conditions to transfer or
assignment, and, with the exception of those liens and encumbrances listed in
Schedule 1, said Assets are free and clear of liens, pledges, charges, or
encumbrances.
5.5 BROKERS AND FINDERS. Seller has not employed any broker
or finder in connection with the transactions contemplated by this Agreement, or
taken action that would give rise to a valid claim against any party for a
brokerage commission, finder's fee, or other like payment.
5.6 TRANSFER NOT SUBJECT TO ENCUMBRANCES OR THIRD-PARTY
APPROVAL. The execution and delivery of this Agreement by Seller and the
consummation of the contemplated transactions, will not result in the creation
or imposition of any valid lien, charge, or encumbrance on any of the Assets,
and will not require the authorization, consent, or approval of any third party,
including any governmental subdivision or regulatory agency.
5.7 LABOR AGREEMENTS AND DISPUTES. Seller is neither a party
to, nor otherwise subject to any collective bargaining or other agreement
governing the wages, hours, and terms of employment of Seller's employees.
Seller is not aware of any labor dispute or labor trouble involving employees of
Seller, nor has there been any such dispute or trouble during the two years
preceding the date of this Agreement.
5.8 COMPLIANCE WITH CODES AND REGULATIONS. Seller has no
knowledge that leasehold improvements violate and provisions of any applicable
building codes, fire regulations, building restrictions, or other ordinances,
orders, or regulations.
5.9 LITIGATION. Seller has no knowledge of any claim,
litigation, proceeding, or investigation pending or threatened against Seller
that might result in any material adverse change in the business or condition of
Assets being conveyed under this Agreement. Schedule 5.9 sets forth all lawsuits
which are pending against the Company.
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5.10 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the
representations or warranties of Seller contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make statements in this Agreement not misleading. Seller
knows of no fact that has resulted, or will result in a material change in the
business, operations, or assets of Seller.
SECTION 6. REPRESENTATIONS OF PURCHASER. The Purchaser represents
and warrants as follows:
6.1 CORPORATE EXISTENCE. Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida. Purchaser has all requisite corporate power and authority to enter into
this Agreement and perform its obligations hereunder.
6.2 AUTHORIZATION. The execution, delivery, and performance
of this Agreement has been duly authorized and approved by the Board of
Directors of Purchaser, and this Agreement constitutes a valid and binding
Agreement of Purchaser in accordance with its terms.
6.3 BROKERS AND FINDERS. Purchaser has employed a broker or
finder in connection with the transaction contemplated by this Agreement and
Purchaser shall be solely responsible for the payment of its fee.
6.4 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the
representations or warranties of Purchaser contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make the statements contained herein not misleading.
6.5 COMPLIANCE WITH LAWS. To the best of Purchaser's
knowledge, it is in compliance with all governmental laws, regulations and
administrative orders, including those of the NASD and SEC. In that regard,
Purchaser has received no notice of any such violations.
6.6 LITIGATION. Purchaser has no knowledge of any claim,
litigation, proceeding, or investigation pending or threatened against Purchaser
that might result in any material adverse change in the business or condition of
Purchaser.
SECTION 7. COVENANTS OF SELLER AND SELLER'S SHAREHOLDERS. Seller
and Seller's Shareholders agree that between the date of this Agreement and the
Closing Date, Seller will:
7.1 OPERATION OF BUSINESS. Continue to operate the
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business that is the subject of this Agreement in the usual and ordinary course
and in substantial conformity with all applicable laws, ordinances, regulations,
rules, or orders, and will use its best efforts to preserve its business
organization and preserve the continued operation of its business with its
customers, suppliers, and others having business relations with Seller. Seller
further covenants that it will not make any extraordinary payments on the life
insurance policies of Seller's Shareholders or make any additional shareholder
loans.
7.2. TRANSFER OF ASSETS. Not assign, sell, lease, or
otherwise transfer or dispose of any of the assets used in the performance of
its business, whether now owned or hereafter acquired, except in the normal and
ordinary course of business and in connection with its normal operation.
7.3. MAINTENANCE OF ASSETS. Maintain all of its assets other
than inventories in their present condition, reasonable wear and tear and
ordinary usage excepted, and maintain the inventories at levels normally
maintained.
7.4 ACCESS TO PREMISES AND INFORMATION. At reasonable times
prior to the Closing Date, Seller will provide Purchaser and its representatives
with reasonable access during business hours to the assets, titles, contracts,
and records of Seller and furnish such additional information concerning
Seller's business as Purchaser from time to time may reasonably request.
7.5 EMPLOYEE MATTERS. Prior to Closing, Seller will deliver
to Purchaser a list of the names of all persons on the payroll of Seller,
together with a statement of amounts paid to each during Seller's most recent
fiscal year and amounts paid for services from the beginning of the current
fiscal year to the Closing Date. Seller will also provide Purchaser with a
schedule of all employee bonus arrangements and a schedule of other material
compensation or personnel benefits or policies in effect. Prior to the Closing
Date, Seller will not, without Purchaser's prior written consent, enter into any
material agreement with its employees, increase the rate of compensation or
bonus payable to or to become payable to any employee, or effect any changes in
the management, personnel policies, or employee benefits, except in accordance
with existing employment practices. Seller and Seller's Shareholders will
undertake all action necessary or appropriate to permit Purchaser, if Purchaser
so desires, to take over Seller's pension and profit-sharing plan as a successor
employer, and will cooperate with Purchaser with respect to this undertaking.
7.6 CHANGE OF NAME. On or prior to the Closing Date,
Seller will take all action necessary or appropriate to permit
Purchaser to legally commence use of Seller's name on the Closing
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Date. Seller shall cause an amendment to its Articles of Incorporation to be
filed with the Florida Secretary of State changing Seller's name so that Buyer
can cause the formation of a subsidiary with the name "Steridyne Corporation."
7.7 CONDITIONS AND BEST EFFORTS. Seller and Seller's
Shareholders will use their best efforts to effectuate the transactions
contemplated by this Agreement and to fulfill all the conditions of the
obligations of Seller and Seller's Shareholders under this Agreement, and will
do all acts and things as may be required to carry out their respective
obligations under this Agreement and to consummate and complete this Agreement.
SECTION 8. COVENANTS OF PURCHASER.
8.1 CONDITIONS AND BEST EFFORTS. Purchaser will use its
best efforts to effectuate the transactions contemplated by this Agreement and
to fulfill all the conditions of Purchaser's obligations under this Agreement,
and shall do all acts and things as may be required to carry out Purchaser's
obligations and to consummate this Agreement.
8.2. INFUSION OF CAPITAL. Subsequent to Closing, Purchaser
shall contribute such amounts to the capital of the Subsidiary as it deems
sufficient and necessary in order to properly manufacture and market the
Subsidiary's products. While the parties hereto acknowledge that it is
impossible, at this time, to determine the amount which will be necessary,
nevertheless, Purchaser shall contribute the necessary and reasonably sufficient
capital necessary to manufacture and market Seller's and Subsidiary's products.
SECTION 9. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The
obligation of Purchaser to purchase the Assets is subject to the fulfillment,
prior to or at the Closing Date, of each of the following conditions, any one or
portion of which may be waived in writing by Purchaser:
9.1 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SELLER AND
SELLER'S SHAREHOLDERS. All representations and warranties made in this Agreement
by Seller and Seller's Shareholders shall be true as of the Closing Date as
fully as though such representations and warranties had been made on and as of
the Closing Date, and, as of the Closing Date, neither Seller nor Seller's
Shareholders shall have violated or shall have failed to perform in accordance
with any covenant contained in this Agreement.
9.2 CONSENTS. Seller shall have used its best efforts
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to help Purchaser obtain the consents of Enterprise Bank and First Union Bank
(collectively the "Loans") to assume the loans with said financial institutions.
9.3 CONDITIONS OF THE BUSINESS. There shall have been no
material adverse change in the manner of operation of Seller's business prior to
the Closing Date.
9.4 OPINION OF COUNSEL FOR SELLER. At the Closing, there
will have been delivered to Purchaser a signed opinion from counsel for the
Seller and Subsidiaries, reasonably satisfactory to Purchaser's counsel, and
which opinion is prepared and construed in accordance with the Report on
Standards for Florida Opinions dated April 8, 1991 issued by the Business Law
Section of The Florida Bar (the "Report"), to the effect that:
9.4.1 Seller is a corporation validly existing and in good
standing under the laws of the State of Florida.
9.4.2 The Seller has the full corporate power and authority to
execute, deliver and perform this Agreement, and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation by the Seller of the transactions herein contemplated have
been duly authorized by all necessary corporate action, This Agreement when
executed and delivered by the Seller will be a valid and binding obligation of
the Seller, enforceable against them in accordance with its terms, subject, as
to enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of creditors
generally and the discretion of courts in granting equitable remedies.
9.4.3 The execution, delivery and performance of this
Agreement by the Seller do not, and will not, with or without the giving of
notice or the lapse of time, or both: (A) result in a violation of the articles
of incorporation or by-laws of the Seller; (B) result in a breach of or conflict
with any of the terms or provision of, or constitute a material default under,
or result in the modification or termination of, or result in the creation or
imposition of any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Purchaser pursuant to any material note, contract,
commitment or other agreement or instrument to which it is a party or by which
the Seller or any of its properties or assets are or may be bound or affected,
to the best of its knowledge; (C) violate in any material way any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Seller or any
of its properties or business, to the best of its knowledge; or (D) violate any
permit,
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certification, registration, approval, consent or license applicable to the
business or properties of the Purchaser, to the best of its knowledge.
9.5 NO SUITS OR ACTIONS. At the Closing Date no suit,
action, or other proceeding shall have been threatened or instituted to
restrain, enjoin, or otherwise prevent the consummation of this Agreement or the
contemplated transactions.
9.7 DUE DILIGENCE. From the date hereof to June 30, 1996,
Purchaser shall conduct any and all due diligence (the "Due Diligence Period")
on the Seller as it deems reasonable and necessary to close the transactions. If
during the Due Diligence Period, Purchaser discovers items or materials which
were unknown to it at the time of this Agreement, then Purchaser shall have the
absolute right, in its sole discretion, and upon Notice to Seller, to terminate
and cancel this Agreement. Upon such Notice, Seller shall forthwith be entitled
to the full refund of its Deposit. In the event that the Purchaser timely elects
to terminate the Agreement pursuant to this Section for other than a material
misrepresentation or omission of a material fact, the Purchaser agrees to
reimburse the Seller for its reasonable attorneys' fees and costs, not to exceed
$25,000. If the Purchaser fails to deliver the written notice prior to July 15,
1996, the Purchaser's right to terminate this Agreement pursuant to this Section
shall lapse.
9.8 FINANCING CONTINGENCY. The Seller acknowledges that
Purchaser has disclosed to it that it seeking equity financing in an amount of
not less than $6,000,0000 pay the purchase price herein and for additional
capital infusion into Purchaser and In the event that Purchaser has not obtained
and closed its equity financing by July 15, 1996, then Purchaser shall have the
absolute right, in its sole discretion, and upon Notice to Seller, to terminate
and cancel this Agreement. Upon such Notice, Seller shall forthwith be entitled
to the full refund of its Deposit. In the event that the Purchaser timely elects
to terminate the Agreement pursuant to this Section, the Purchaser agrees to
reimburse the Seller for its reasonable attorneys' fees and costs, not to exceed
$25,000. If the Purchaser fails to deliver the written notice prior to July 15,
1996, the Purchaser's right to terminate this Agreement pursuant to this Section
shall lapse.
SECTION 10. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The
obligations of Seller to Close this Agreement are subject to the fulfillment,
prior to or at the Closing Date, of each of the following conditions, any one or
a portion of which may be waived in writing by Seller:
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10.1 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF PURCHASER.
All representations and warranties made in this Agreement by Purchaser shall be
true as of the Closing Date as fully as though such representations and
warranties had been made on and as of the Closing Date, and Purchaser shall not
have violated or shall not have failed to perform in accordance with any
covenant contained in this Agreement.
10.2 OPINION OF COUNSEL FOR PURCHASER. At the Closing, there
will have been delivered to Seller a signed opinion from counsel for the
Purchaser, reasonably satisfactory to Seller's counsel, and which opinion is
prepared and construed in accordance with the Report, to the effect that:
10.2.1 The Purchaser is a corporation validly existing and in
good standing under the laws of the State of Florida.
10.2.2 The Purchaser has full corporate power and authority to
execute, deliver and perform this Agreement and all agreements contemplated by
the Agreement, and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance of this Agreement and all
agreements contemplated by the Agreement by the Purchaser of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action. This Agreement and all agreements contemplated by the
Agreement constitutes a valid and binding obligation of the Purchaser,
enforceable in connection with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and the discretion of
courts in granting equitable remedies.
10.2.3 The execution, delivery and performance of this
Agreement and all agreements contemplated by the Agreement by the Purchaser do
not, and will not, with or without the giving of notice or the lapse of time, or
both: (A) result in a violation of the articles of incorporation or by-laws of
the Purchaser; (B) result in a breach of or conflict with any of the terms or
provision of, or constitute a material default under, or result in the
modification or termination of, or result in the creation or imposition of any
lien, security interest, charge or encumbrance upon any of the properties or
assets of the Purchaser pursuant to any material note, contract, commitment or
other agreement or instrument to which it is a party or by which the Purchaser
or any of its properties or assets are or may be bound or affected, to the best
of its knowledge; (C) violate in any material way any existing applicable law,
rule, regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Purchaser or any of its
properties or
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business, to the best of its knowledge; or (D) violate any permit,
certification, registration, approval, consent or license applicable to the
business or properties of the Purchaser, to the best of its knowledge.
10.3 DUE DILIGENCE. From the date hereof to July 15, 1996,
Seller shall conduct any and all due diligence (the "Due Diligence Period") on
the Purchaser as it deems reasonable and necessary to close the transactions. If
during the Due Diligence Period, Seller discovers items or materials which were
unknown to it at the time of this Agreement, then Seller shall have the absolute
right, in its sole discretion, and upon Notice to Purchaser, to terminate and
cancel this Agreement. If the Seller fails to deliver the written notice prior
to July 15, 1996, the Seller's right to terminate this Agreement pursuant to
this Section shall lapse.
10.4 RELEASE FROM GUARANTIES. Seller's Shareholders have
personally guaranteed Seller's debt on its Line of Credit withEnterprise Bank
and the Company's mortgage with First Union Bank (collectively the "Loans").
Purchaser and Subsidiary shall assume these Loans and use their best efforts to
have both Enterprise Bank and First Union Bank release Seller and its
Shareholders from the Loans. In the event that either lender refuses to release
Seller and its Shareholders from the Loans, at Closing, Purchaser shall satisfy
these obligations in full.
SECTION 11. RISK OF LOSS. The risk of loss, damage, or destruction
to any of the equipment, inventory, or other personal property to be conveyed to
Purchaser under this Agreement shall be borne by Seller to the time of Closing.
In the event of such loss, damage, or destruction, Seller, to the extent
reasonable, shall replace the lost property or repair or cause to repair the
damaged property to its condition prior to the damage. If replacement, repairs,
or restorations are not completed prior to Closing, then the purchase price
shall be adjusted by an amount agreed upon by Purchaser and Seller that will be
required to complete the replacement, repair, or restoration following Closing.
If Purchaser and Seller are unable to agree, then Purchaser, at its sole option
and notwithstanding any other provision of this Agreement, upon notice to
Seller, may rescind this Agreement and declare it to be of no further force and
effect, in which event there shall be no Closing of this Agreement and all the
terms and provisions of this Agreement shall be deemed null and void. If the
Purchaser and Seller are unable to agree on an amount required to complete the
repairs or restoration, and that amount is less than $50,000, the parties hereto
agree to submit the matter to binding arbitration in Palm Beach County, Florida.
SECTION 12. INDEMNIFICATION AND SURVIVAL.
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12.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Agreement shall survive the Closing
of this Agreement, except that any party to whom a representation or warranty
has bee made in this Agreement shall be deemed to have waived any
misrepresentation or breach of representation or warranty of which such party
had knowledge prior to Closing. Any party learning of a misrepresentation or
breach of representation or warranty under this Agreement shall immediately give
written notice thereof to all other parties to this Agreement. The
representations and warranties in this Agreement shall terminate one year from
the Closing Date, and such representations or warranties shall thereafter be
without force or effect, except any claim with respect to which notice has been
given to the party to be charged prior to such expiration date.
12.2 SELLER'S AND SELLER'S SHAREHOLDERS' INDEMNIFICATION.
12.2.1 Seller and Seller's Shareholders each hereby agree to
indemnify and hold Purchaser, it successors, and assigns harmless from and
against:
12.2.2 Any and all claims, liabilities, and obligations of
every kind and description, contingent or otherwise, arising out of or related
to the operation of Seller's business prior to the close of business on the day
before the Closing Date, except for claims, liabilities, and obligations of
Seller expressly assumed by Purchaser under this Agreement or paid by insurance
maintained by Seller, Seller's Shareholders, or Purchaser.
12.2.3 Any and all damage or deficiency resulting from any
material misrepresentation, breach of warranty or covenant, or nonfulfillment of
any agreement on the part of Seller and Seller's Shareholders under this
Agreement.
12.2.4 Seller's and Seller's Shareholders indemnity obligations
herein shall be subject to the following:
12.2.5 If any claim is asserted against Purchaser that would
give rise to a claim by Purchaser against Seller or Seller's Shareholders for
indemnification under the provisions of this Section, then Purchaser shall
promptly give written notice to Seller and Seller's Shareholders concerning such
claim and Seller and its Shareholders shall, at no expense to Purchaser, defend
the claim.
12.3 PURCHASER'S INDEMNIFICATION. Purchaser agrees to defend,
indemnify, and hold harmless Seller and Seller's Shareholders from and against:
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12.3.1 Any and all claims, liabilities, and obligations of
every kind and description arising out of or related to the operation of the
business following Closing or arising out of Purchaser's failure to perform
obligations of Seller assumed by Purchaser pursuant to this Agreement.
12.3.2 Any and all damage or deficiency resulting from any
material misrepresentation, breach of warranty or covenant, or nonfulfillment of
any agreement on the part of Purchaser under this Agreement.
12.3.3. Any claim by any broker with respect to the transaction
contemplated by this Agreement.
SECTION 13. CLOSING.
13.1 TIME AND PLACE. This Agreement shall be closed at the Law
Offices of Bailey, Fishman, Freeman & Ferrin, 1400 Centrepark Blvd., Suite 901,
West Palm Beach, FL 33401 at 10:00 A.M. on or before August 30, 1996, or at such
other time as the parties may agree in writing. If Closing has not occurred on
or prior to August 30,1996, then any party may elect to terminate this
Agreement. If, however, the Closing has not occurred because of a breach of
contract by one or more parties, the breaching party or parties shall remain
liable for breach of contract.
13.2 OBLIGATIONS OF SELLER AND SELLER'S SHAREHOLDERS AT
THE CLOSING. At the Closing and coincidentally with the performance by Purchaser
of its obligations described herein, Seller and Seller's Shareholders shall
perform all of their obligations described in this Agreement.
SECTION 14. MISCELLANEOUS PROVISIONS.
14.1 AMENDMENT AND MODIFICATION. Subject to applicable law,
this Agreement may be amended, modified, or supplemented only by a written
agreement signed by all of the parties hereto.
14.2 NOTICES. All notices, requests, demands, and other
communications required or permitted hereunder will be in writing and will be
deemed to have been duly given when delivered by hand or two days after being
mailed by certified or registered mail, return receipt requested, with postage
prepaid:
If to Purchaser: Jeremy Feakins, President
Medical Technology and
Innovations, Inc.
3125 Nolt Road
Lancaster, P.A. 17601
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Copy to: Eric P. Littman, Esquire
1428 Brickell Avenue
8th Floor
Miami, FL 33131
If to Seller: George Poncy, Jr., President
Steridyne Corporation
3725 Investment Lane
Riviera Beach, FL 33404
Copy to: Donald J. Freeman, Esquire
Bailey, Fishman, Freeman & Ferrin
1400 Centrepark Blvd.
Suite 901
West Palm Beach, FL 33401
And to: Marvin A. Kirsner, Esquire
Goldberg & Young
721 U.S. highway North
Suite 113
North Palm Beach, FL 33408
or to such other address as any party furnishes the other in writing.
14.3 ATTORNEY FEES. In the event of suit or action is
brought by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court. If any claim or counterclaim is brought pursuant to this
Agreement, exclusive jurisdiction and venue shall lie in the state courts of
Palm Beach County, Florida. With respect to any all claims or counter claims
arising out of this Agreement exclusive jurisdiction and venue shall lie in the
state courts of Palm Beach County, Florida and the parties hereto waives their
right to a trial by jury therein.
14.4 LAW GOVERNING. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
14.5 COMPUTATION OF TIME. In computing any period of
time pursuant to this Agreement, the day of the act, event or default from which
the designated period of time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period shall begin to
run on the next day which is not a Saturday, Sunday or legal holiday.
14.6 TITLES AND CAPTIONS. All section titles or captions
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contained in this Agreement are for convenience only and shall not be deemed
part of the context nor affect the interpretation of this Agreement.
14.7 PRONOUNS AND PLURALS. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the person or persons may require.
14.8 ENTIRE AGREEMENT. This Agreement contains the
entire understanding between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter of this
Agreement. Any amendments to this Agreement must be in writing and signed by the
party against whom enforcement of that amendment is sought.
14.9 AGREEMENT BINDING. This Agreement shall be binding
upon the heirs, executors, administrators, successors and assigns of the parties
hereto.
14.10 PRESUMPTION. This Agreement or any Section thereof shall
not be construed against any party due to the fact that said Agreement or any
Section thereof was drafted by said party.
14.11 FURTHER ACTION. The parties hereto shall execute and
deliver all documents, provide all information and take or forbear from all such
action as may be necessary or appropriate to achieve the purpose of the
Agreement.
14.12 COUNTERPARTS. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on all
the parties hereto even though all the parties are not signatories to the
original or the same counterpart.
14.13 PARTIES IN INTEREST. Nothing herein shall be construed
to be to the benefit of any third party, nor is it intended that any provision
shall be for the benefit of any third party.
14.14 TITLE INSURANCE. Purchaser shall, at its sole cost and
expense, obtain title insurance on the real property now owned by Seller. Within
15 days of the execution of this Agreement, Seller shall deliver to Purchaser
the latest title insurance policy on the property which it has in its possession
or control. In addition, Purchaser shall pay the documentary stamps on the deed
transferring Seller's real property.
14.15 NON-ASSIGNMENT. Without the express written
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permission of the other party, this Agreement shall not be assignable by either
party.
14.6 SAVINGS CLAUSE. If any provision of this Agreement, or
the application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
MEDICAL TECHNOLOGY AND INNOVATIONS, INC.
BY: /s/ JEREMY FEAKINS
-------------------------
JEREMY FEAKINS, PRESIDENT
STERIDYNE CORPORATION
By: /s/ GEORGE PONCY, JR.
-------------------------
GEORGE PONCY, JR., PRESIDENT
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