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 31, 2014
MEDIFIRST SOLUTIONS, INC. |
(Exact name of registrant as specified in its charter) |
Nevada |
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27-3888260 |
State or other jurisdiction |
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Commission File Number |
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IRS Employer |
incorporation |
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Identification No. |
45 E. Main Street. Suite 208, Freehold, NJ 07728 |
(Address of principal executive offices) (Zip Code) |
Registrant's telephone number, including area code: (732)-786-8044
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(Former name or former address, if changed since last report) |
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Section 1- Registrant’s Business and Operations
Item 1.01 Entries into a Material Definitive Agreement
Effective October 31, 2014,
the Company’s newly-formed wholly-owned subsidiary, Dr. Park Avenue, Inc., a Nevada corporation (“Subsidiary”),
entered into an Asset Purchase Agreement (“Agreement”) to acquire all of the assets of Dr. Park Ave. located
in Franklin Lakes, New Jersey. (“Dr. Park Ave. New Jersey”). The Subsidiary will continue to operate the out-patient
cosmetic surgery office formerly operated by Dr. Park Ave. New Jersey at the Franklin Lakes, New Jersey facility. Paul Fondacaro
M.D., the medical director of Dr. Park Avenue New Jersey, is the President, Chief Medical Officer and a director of the Subsidiary.
Item 2.01 Completion of Acquisition or Disposition of Assets
The Company incorporates by reference the disclosures
in Item 2.01 of this Report.
A copy of the Agreement and all exhibits thereto
as executed by the parties is attached to this Report as Exhibit 10.1
Section 9- Financial Statements and Exhibits
Item 9.01 Exhibits
Exhibit No. |
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Description |
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10.1 |
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Asset Purchase Agreement dated October 31, 2014. |
The financial statements of Dr. Park Ave. New Jersey are not included
with this report but will be filed along with proforma financial statements in an amended report within 71 days of the date of
the original report disclosing the acquisition.
Signatures
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.
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MEDIFIRST SOLUTIONS, INC. |
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Dated: November 5, 2014 |
By: |
/s/ Bruce J. Schoengood |
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President and Chief Executive Officer |
3
EXHIBIT
10.1
ASSET
PURCHASE AGREEMENT
BY
AND AMONG
Dr.
Park Avenue Inc.
a
Nevada corporation
and
Dr.
Park Ave.
a
Nevada corporation
October
31, 2014
TABLE
OF CONTENTS
1. |
Definitions |
3 |
2. |
Purchase and Sale of Assets |
4 |
|
(a) |
Purchase and Sale of Assets |
4 |
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(b) |
Purchase Price |
4 |
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(d) |
The Closing |
4 |
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(e) |
Deliveries at the Closing |
4 |
3. |
Representations and Warranties of Company |
5 |
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(a) |
Organization of Company |
5 |
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(b) |
Authorization of Transaction |
5 |
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(c) |
Noncontravention |
5 |
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(d) |
Legal Compliance |
5 |
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(e) |
Title to Assets |
5 |
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(f) |
Sufficiency of Assets |
6 |
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(g) |
Description of Leased Property |
6 |
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(h) |
Intellectual Property |
6 |
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(i) |
Investment |
6 |
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(j) |
Disclaimer of other Representations and Warranties |
6 |
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(k) |
Brokers or Finders |
6 |
4. |
Representations and Warranties of Subsidiary |
6 |
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(a) |
Organization of Subsidiary |
6 |
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(b) |
Authorization of Transaction |
7 |
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(c) |
Noncontravention |
7 |
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(d) |
Medifirst Shares |
7 |
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(e) |
Brokers or Finders |
7 |
5. |
Pre-Closing Covenants |
7 |
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(a) |
General |
7 |
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(b) |
Notices and Consents |
7 |
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(c) |
Operation of Business |
7 |
6. |
Conditions to Obligation to Close |
7 |
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(a) |
Conditions to Obligation of Subsidiary |
7 |
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(b) |
Conditions to Obligation of the Company |
8 |
7. |
Termination |
9 |
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(a) |
Termination of Agreement |
9 |
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(b) |
Effect of Termination |
9 |
8. |
Miscellaneous |
9 |
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(a) |
Expenses |
9 |
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(b) |
Survival of Representations and Warranties |
9 |
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(c) |
Press Releases and Public Announcements |
10 |
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(d) |
No Third-Party Beneficiaries |
10 |
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(e) |
Entire Agreement |
10 |
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(f) |
Succession and Assignment |
10 |
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(g) |
Counterparts/Execution of Agreement |
10 |
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(h) |
Headings |
10 |
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(i) |
Notices |
10 |
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(j) |
Governing Law |
11 |
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(k) |
Amendments and Waivers |
11 |
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(l) |
Severability |
11 |
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(m) |
Legal Counsel/Construction |
11 |
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(n) |
Incorporation of Exhibits and Schedules |
11 |
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(o) |
Bulk Transfer Laws |
11 |
Exhibits A-1 to A-3 - Forms of Assignments |
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Exhibit B - Officer Certificates and Board Resolutions |
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ASSET
PURCHASE AGREEMENT
This
Asset Purchase Agreement (“Agreement”) is entered into effective as of October 31, 2014, by and
among Dr. Park Avenue Inc., a Nevada corporation, a wholly-owned subsidiary of Medifirst Solutions, Inc. (“Subsidiary”),
and Dr. Park Ave., a Nevada corporation (“Company”). The foregoing are the only parties to this
Agreement and are sometimes referred to herein singularly as a “Party” and collectively herein as the "Parties."
RECITALS
WHEREAS,
Medifirst Solutions, Inc. desires to acquire the assets, as described in this Agreement, of the Company, and has formed, organized
and capitalized Subsidiary for the purpose of acquiring, owning and said assets, subject to the terms of this Agreement.
WHEREAS,
the Company desires to sell all of its assets to Subsidiary, subject to the terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as follows.
1. Definitions.
When used in this Agreement, the terms set forth below and those defined throughout the Agreement when initially capitalized shall
have the meanings ascribed to them.
"Adverse
Consequences" means all legal actions, suits, proceedings, hearings, governmental investigations, complaints, claims,
demands, injunctions, judgments, orders, decrees, rulings, damages, penalties, fines, costs, liabilities, obligations, taxes,
liens, losses, expenses, and fees, including litigation costs and reasonable attorneys' fees and expenses.
"Acquired
Assets" means all of the right, title, and interest to the assets that the Company possesses and has the right to transfer
including, (a) intellectual property, goodwill associated therewith, Internet domain name registrations, 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, (b) accounts receivable, agreements, contracts, mortgages, leases, instruments,
Security Interests, guaranties, and rights thereunder, claims, causes of action, rights of recovery, rights of set off, and rights
of recoupment (including any such item relating to the payment of taxes), (d) permits, licenses, orders, registrations, certificates,
variances, and similar rights obtained from governments and governmental agencies, and (e) books, records, ledgers, files, documents,
correspondence, advertising and promotional materials, studies, reports, and other printed or written materials. All of the foregoing
shall refer solely and exclusively to the operations of the Company’s business as currently conducted at 846 Franklin Avenue,
Franklin Lakes, New Jersey and excluding any and all contract rights to which the Company is, or may be, entitled arising from
facilities in Brick and Hoboken, New Jersey, respectively
"Closing"
has the meaning set forth in Section 2(d) below.
"Closing
Date" has the meaning set forth in Section 2(d) below.
"Confidential
Information" means any confidential, trade secret or other proprietary information, in whatever form or media, and whether
or not marked as confidential, including without limitation any and all information, documents and other materials concerning
the business and affairs of the Company that is not already generally available to the public at the time of disclosure to Subsidiary
hereunder.
"Disclosure
Schedule" has the meaning set forth in Section 3 below.
"Knowledge"
means actual knowledge without independent investigation.
"Ordinary
Course of Business" means the ordinary course of business consistent with past custom and practice, including with respect
to quantity and frequency.
"Party"
has the meaning set forth in the preface above.
"Person"
means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political subdivision thereof).
"Purchase
Price" has the meaning set forth in Section 2 (c) below.
"Securities
Act" means the Securities Act of 1933, as amended.
"Securities
Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Security
Interest" means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for taxes not yet due and payable or for taxes that the taxpayer is contesting in
good faith through appropriate proceedings, (c) purchase money liens and liens securing rental payments under capital lease arrangements,
and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.
2. Purchase
and Sale of Assets.
(a)
Purchase and Sale of Assets. On and subject to the terms and conditions of this Agreement, Subsidiary agrees to purchase
from the Company and the Company agrees to sell, transfer, assign, convey, and deliver to Subsidiary, all of the Acquired Assets
at the Closing, free and clear of all liens and encumbrances, for the purchase price specified below in this Section 2. The purchase
of the Acquired Assets pursuant to this Agreement shall not include the assumption by Subsidiary of any liability related to the
Acquired Assets.
(b) Purchase
Price. Subsidiary agrees to deliver and pay to the Company the purchase price ("Purchase Price")
consisting of shares of common stock of Medifirst Solutions, Inc. (“Medifirst Shares") with an
aggregate market value of $250,000.00. Consistent with the provisions of Section 3(i) of this Agreement, a certificate for the
Medifirst Shares will be delivered to the Company on the twelfth (12th) month anniversary date of this Agreement (“Delivery
Date”). The number of Medifirst Shares delivered will be based on the per share trading price as quoted on the
Delivery Date by OTC Markets Group, Inc. OTCQB.
(c)
The Closing. The closing of the transactions contemplated by this Agreement ("Closing")
shall take place at the offices of the Company located at 846 Franklin Avenue, Franklin Lakes, New Jersey on the second business
day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated
hereby, other than conditions with respect to actions the respective Parties will take at the Closing itself, or such other date
as the Parties may mutually determine ("Closing Date").
(e) Deliveries
at the Closing. At the Closing, (i) the Company will deliver to Subsidiary the various certificates, instruments, and documents
referred to in Section 6(a) below; (ii) Subsidiary will deliver to the Company the various certificates, instruments, and documents
referred to in Section 6(b) below; (iii) the Company will execute, acknowledge, if appropriate, and deliver to Subsidiary assignments,
including lease and intellectual property transfer documents, in the forms attached hereto as Exhibits A-1 through A-3.
3. Representations
and Warranties of Company. The Company represents and warrants to the Company that the statements contained in this Section
3 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date, as though
made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 3, except as
set forth in the disclosure schedule accompanying this Agreement and initialed by the Parties ("Disclosure Schedule").
The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained
in this Section 3.
(a) Organization
of the Company. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the
State of Nevada with full corporate power and authority to conduct its business as it is now being conducted, to own or use the
properties and assets that it purports to own or use. The Company is duly qualified to do business as a foreign corporation in
New Jersey and is in good standing under the laws of State of New Jersey.
(b) Authorization
of Transaction. The Company has full power and authority, including full corporate power and authority, to execute and deliver
this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the board of directors
has duly authorized the execution, delivery, and performance of this Agreement. This Agreement constitutes the valid and legally
binding obligation of the Company, enforceable in accordance with its terms and conditions.
(c) Noncontravention.
Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, including
the assignments and assumptions referred to in Section 2 above, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which the Company is subject or any provision of the its Articles of Incorporated or bylaws or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which
it is a party or by which it is bound or to which any of its assets is subject, or result in the imposition of any Security Interest
upon any of its assets, except where the violation, conflict, breach, default, acceleration, termination, modification, cancellation,
failure to give notice, or Security Interest would not have a material adverse effect on its financial condition taken as a whole
or on the ability of the Parties to consummate the transactions contemplated by this Agreement. The Company shall not be required
to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated by this Agreement, including the assignments and assumptions
referred to in Section 2 above, except where the failure to give notice, to file, or to obtain any authorization, consent, or
approval would not have a material adverse effect on the financial condition of the Company taken as a whole or on the ability
of the Parties to consummate the transactions contemplated by this Agreement.
(d) Legal
Compliance. The Company has complied with all applicable laws, including rules, regulations, codes, plans, injunctions, judgments,
orders, decrees, rulings, and charges thereunder, of federal, state, local, and foreign governments, and all agencies thereof,
except where the failure to comply would not have a material adverse effect upon its financial condition taken as a whole.
(e) Title
to Assets. The Company has good and transferable title to the Acquired Assets.
(f) Sufficiency
of Assets. The Acquired Assets (i) constitute all of the assets, tangible and intangible, of any nature whatsoever necessary
to operate the Company’s business in the manner presently operated by the Company and (ii) includes all of the operating
assets of the Company.
(g) Description
of Leased Property. Disclosure Schedule 3(g) contains a correct street address or legal description of all real property
in which the Company has a leasehold interest and an accurate description by name of the Lessor, date of Lease and expiration
date of all real property leases.
(h) Intellectual
Property. Disclosure Schedule 3(h) identifies each tradename and trademark registration which has been issued to the Company.
(i)
Investment. The Company (i) understands that the Medifirst Shares have not been, and will not be, registered under the
Securities Act, or under any state securities laws, and are being offered and sold in reliance upon federal and state exemptions
for transactions not involving any public offering, and (ii) is acquiring the Medifirst Shares solely for its own account and
not with a view to the immediate distribution thereof. The Company acknowledges and agrees that the certificate evidencing the
Medifirst Shares will include a legend reading substantially as follows:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED
WITHOUT A VIEW TO DISTRIBUTION AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT AND UNDER ANY APPLICABLE SECURITIES LAWS, OR AN OPINION OF COUNSEL ACCEPTABLE
TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED AS TO SUCH SALE OR OFFER.
The
Company further agrees that it shall not make a pro rata or similar distribution of the Medifirst Shares to shareholders of the
Company for twelve (12) months following the Closing Date. The Company acknowledges that its shareholders may become subject to
additional restrictions on transferability pursuant to (a) the Securities Act of 1933, as amended, and the rules and regulations
thereunder; and (b) volume resale limitations imposed by Medifirst Solutions, Inc.
(j) Disclaimer
of other Representations and Warranties. Except as expressly set forth in this Section 3, the Company makes no representation
or warranty, express or implied, at law or in equity, in respect of any of the Acquired Assets with respect to merchantability
or fitness for any particular purpose, and any such other representations or warranties are hereby expressly disclaimed. Each
of the Parties hereby acknowledges and agrees that, except to the extent specifically set forth in this Section 3, Subsidiary
is acquiring the Acquired Assets on an "as-is, where-is" basis. Without limiting the generality of the foregoing, the
Company makes no representation or warranty regarding any assets other than the Acquired Assets and none shall be implied at law
or in equity.
(k) Brokers
or Finders. Neither the Company nor any of its representatives have incurred any obligation or liability contingent or
otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payments in connection with the
sale of the Acquired Assets.
4. Representations
and Warranties of Subsidiary. Subsidiary represents and warrants to the Company that the statements contained in this
Section 4 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date, as
though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4, except
as set forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered
and numbered paragraphs contained in this Section 4.
(a) Organization
of Subsidiary. Subsidiary is a corporation duly organized, validly existing, and in good standing under the laws of the State
of Nevada, with full corporate power and authority to conduct its business as it is now conducted.
(b) Authorization
of Transaction. Subsidiary has full power and authority, including full corporate power and authority,) to execute and deliver
this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the board of directors
of Subsidiary has duly authorized the execution, delivery, and performance of this Agreement by Subsidiary. This Agreement constitutes
the valid and legally binding obligation of Subsidiary, enforceable in accordance with its terms and conditions.
(c) Noncontravention.
Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, including
the assignments and assumptions referred to in Section 2 above, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which Subsidiary is subject or any provision of its charter or bylaws or (ii) conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Subsidiary is a party
or by which it is bound or to which any of its assets is subject. Subsidiary does not need to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate
the transactions contemplated by this Agreement, including the assignments and assumptions referred to in Section 2 above.
(d) Medifirst
Shares. Subject to Rule 144 promulgated under the Securities Act and other applicable state securities laws, the Medifirst
Shares shall be duly issued and outstanding common stock and shall not be subject to any Security Interest or other transfer restrictions
other than under the Securities Act or applicable state securities laws.
(e) Brokers
or Finders. Neither Subsidiary nor any of its representatives have incurred any obligation or liability contingent or otherwise,
for brokerage or finders’ fees or agents’ commissions or other similar payments in connection with the sale of the
Acquired Assets.
5. Pre-Closing
Covenants. The Parties agree as follows with respect to the period between the execution of this Agreement and the Closing.
(a) General.
Each of the Parties will use its reasonable best efforts to take all action and to do all things necessary in order to consummate
and make effective the transactions contemplated by this Agreement, including satisfaction, but not waiver, of the closing conditions
set forth in Section 6 below.
(b) Notices
and Consents. The Company will give any notices to third parties, and will use its reasonable best efforts to obtain any third
party consents in connection with the matters referred to in Section 3(c) above. Each of the Parties will give any notices to,
make any filings with, and use its reasonable best efforts to obtain any authorizations, consents, and approvals of governments
and governmental agencies in connection with the matters referred to in Section 3(c) and Section 4(c) above.
(c) Operation
of Business. The Company will not engage in any practice, take any action, or enter into any transaction outside the Ordinary
Course of Business.
6. Conditions
to Obligation to Close.
(a) Conditions
to Obligation of Subsidiary. The obligation of Subsidiary to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the
representations and warranties of the Company set forth in Section 3 above shall be true and correct in all material respects
at and as of the Closing Date;
(ii) the
Company shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(iii) there
shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions
contemplated by this Agreement;
(iv) the
Company shall have delivered to Subsidiary a certificate executed by the Company’s President and Chief Executive Officer
to the effect that each of the conditions specified above in Section 6(a)(i)-(iii) is satisfied in all respects, along with copies
of resolutions of the Company’s Board of Directors and Shareholders authorizing this Agreement and the transactions contemplated
hereunder, in the forms attached hereto as Exhibits B-1;
(v) the
Parties shall have received all necessary authorizations, consents, and approvals of governments and governmental agencies referred
to in Section 3(c) and Section 4(c) above; and
(vi) all
actions to be taken by the Company in connection with consummation of the transactions contemplated hereby and all certificates,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form
and substance to Subsidiary.
Subsidiary
may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) Conditions
to Obligation of the Company. The obligation of the Company to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the
representations and warranties of Subsidiary set forth in Section 4 above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) Subsidiary
shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(iii) there
shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions
contemplated by this Agreement;
(iv)
Subsidiary shall have delivered to the Company a certificate executed by its President to the effect that each of the conditions
specified above in Section 6(b)(i)-(iii) is satisfied in all respects, along with copies of resolutions of Subsidiary’s
Board of Directors authorizing this Agreement and the transactions contemplated hereunder, in the forms attached hereto as Exhibits
B-2;
(v) the
Parties shall have received all necessary authorizations, consents, and approvals of governments and governmental agencies referred
to in Section 3(c) and Section 4(c) above;
(vi) Subsidiary
shall have obtained any and all third party and governmental consents necessary to consummate the transactions contemplated hereby;
and
(vii) all
actions to be taken by Subsidiary in connection with consummation of the transactions contemplated hereby and all certificates,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Company.
The
Company may waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
7. Termination.
(a) Termination
of Agreement. The Parties may terminate this Agreement as provided below:
(i) The
Parties may terminate this Agreement by written consent of all Parties at any time prior to the Closing;
(ii) Subsidiary
may terminate this Agreement by giving written notice to the Company at any time prior to the Closing in the event (A) the Company
has within the then previous ten (10) business days given Subsidiary any notice pursuant to Section 5(e)(i) above and (B) the
development that is the subject of the notice has had a material adverse effect upon the financial condition of the Company taken
as a whole.
(iii) Subsidiary
may terminate this Agreement by giving written notice to the Company at any time prior to the Closing (A) in the event the Company
has breached any material representation, warranty, or covenant contained in this Agreement (other than the representations and
warranties in Section 3(f)-(p) above) in any material respect, Subsidiary has notified the Company of the breach, and the breach
has continued without cure for a period of thirty (30) days after the notice of breach or (B) if the Closing shall not have occurred
on or before November 5, 2014, by reason of the failure of any condition precedent under Section 6(a) hereof, unless the failure
results primarily from Subsidiary breaching any representation, warranty, or covenant contained in this Agreement; and
(iv) The
Company may terminate this Agreement by giving written notice to Subsidiary at any time prior to the Closing (A) in the event
Subsidiary has breached any material representation, warranty, or covenant contained in this Agreement in any material respect,
the Company has notified Subsidiary of the breach, and the breach has continued without cure for a period of thirty (30) days
after the notice of breach or (B) if the Closing shall not have occurred on or before October 15, 2014, by reason of the failure
of any condition precedent under Section 6(b) hereof, unless the failure results primarily from itself breaching any representation,
warranty, or covenant contained in this Agreement.
(b) Effect
of Termination. If any Party terminates this Agreement pursuant to Section 7(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party, except for any liability of any Party then in
breach.
8. Miscellaneous.
(a) Expenses. Each
Party will bear its respective fees and expenses incurred in connection with the preparation, negotiation, execution and performance
of this Agreement.
(b) Survival
of Representations and Warranties. All of the representations and warranties of the Parties contained in this Agreement shall
survive the Closing hereunder, except as otherwise expressly provided herein.
(c) Press
Releases and Public Announcements. No Party shall issue any press release or make any public announcement relating to the
subject matter of this Agreement without the prior written approval of the other Party; provided, however, that Medifirst Solutions,
Inc., may make any public disclosure it believes in good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities, in which case the disclosing Party will use its best efforts to advise the other Party
prior to making the disclosure.
(d) No
Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any Person other than the Parties and
their respective successors and permitted assigns.
(e) Entire
Agreement. This Agreement including the documents referred to herein, constitutes the entire agreement between the Parties
and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, related to
the subject matter hereof.
(f) Succession
and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other Party
(g) Counterparts/
Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original
and all of which together will constitute one and the same instrument. The exchange of copies of this Agreement and of signature
pages by facsimile transmission or by email shall constitute effective execution and delivery of this Agreement to the Parties
and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted via facsimile or email
shall be deemed to be their original signatures for all purposes.
(h) 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.
(i)
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given
if delivered personally, sent by overnight courier or mailed by registered or certified mail, postage prepaid and return receipt
requested, or by email or other means of electronic delivery to the party to whom the same is so delivered, sent or mailed at
addresses set forth below:
If
to Company:
Paul
Fondacaro, M.D.
846
Franklin Avenue
Franklin
Lakes, New Jersey 07417
Email:
pfondacaro@gmail.com
If
to Subsidiary:
Bruce
Schoengood
45
E. Main Street, Suite 208
Freehold,
New Jersey 07728
Email:
admin@medifirstsolutions.com
Any
Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered
by giving the other Party notice in the manner herein set forth.
(j) Governing
Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of New Jersey without
regard to any choice or conflict of law principles that would require the application of any other law.
(k) Amendments
and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed
by all Parties. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
(l) 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.
(m) Legal
Counsel/Construction. This Agreement was prepared by legal counsel representing Subsidiary. The Company was advised to seek
the advice of its own legal counsel concerning this Agreement. Notwithstanding the foregoing, the Parties have participated jointly
in the negotiation and drafting of this Agreement in its executed form. 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.
(n) Incorporation
of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(o) Bulk
Transfer Laws. Subsidiary acknowledges that the Company will not comply with the provisions of any bulk transfer laws of any
jurisdiction in connection with the transactions contemplated by this Agreement.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the date first above written.
SUBSIDIARY: |
|
COMPANY: |
|
|
|
|
|
Dr.
Park Avenue Inc. |
|
Dr.
Park Ave. |
a
Nevada corporation |
|
a
Nevada corporation |
|
|
|
|
|
By: |
/s/
Paul Fondacaro, M.D. |
|
By: |
/s/
Paul Fondacaro, M.D. |
Name: |
Paul
Fondacaro |
|
Name: |
Paul
Fondacaro |
Title: |
President |
|
Title: |
President |
Dated: |
October
31, 2014 |
|
Dated: |
October
31, 2014 |
DISCLOSURE
SCHEDULE 3(g)
Description
of Leased Property
Street Address |
|
Lessor |
|
Date of Lease |
|
Expiration Date |
846 Franklin Avenue
Franklin Lakes, NJ 07417 |
|
First Real Estate Investment Trust of New Jersey |
|
June 9, 2010 |
|
120 months |
DISCLOSURE
SCHEDULE 3 (h)
Registered
Service Marks and Trademarks
Service
mark or Trademark |
|
U.
S. Registration No. |
|
Registration
Date |
|
|
|
|
|
“Dr.
Park Ave.com” inside a rectangular shaped box with a city skyline background |
|
No.
3,771,024 |
|
April
6, 2010 |
|
|
|
|
|
Lipo
Boost- mark consisting of standard characters without claim to any particular font, style, size or color |
|
No.
4,053,942 |
|
November
8, 2011 |
EXHIBIT A-1
BILL OF SALE AND ASSIGNMENT OF CONTRACT RIGHTS
BILL OF SALE AND ASSIGNMENT
OF CONTRACT RIGHTS
1. Sale and Transfer
of Assets ad Contract Rights. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
and as contemplated by the terms and conditions of that certain Asset Purchase Agreement dated as of October 31, 2014
(“Agreement”) to which the undersigned is the seller (“Seller”) and Dr. Park Avenue
Inc., a Nevada corporation is the buyer, (“Buyer”), Seller hereby sells, transfers, assigns, conveys, grants,
and delivers to Buyer, all of Seller’s right, title and interest in and to all of the assets (“Assets”)
and contract rights (“Rights”) described and defined in the Agreement, Including the specific assets
described in the attached Schedule A attached hereto, the Assets and the Rights, collectively, being referred to as the
“Transferred Items”.
2. Further Actions. Seller
covenants and agrees to warrant and defend the sale, transfer, assignment, conveyance, grant and delivery of the Transferred
Items hereby made against all persons whomsoever, to take all steps reasonably necessary to establish the record of Buyer’s
title to the Transferred Items and, at the request of the Buyer, to execute and deliver further instruments of transfer
and to take such other action as Buyers may reasonably request to more effectively transfer and assign to and vest in
Buyers each of the Transferred Items, all at the sole cost and expense of Seller.
3. Power of Attorney. Without
limiting Section 2 hereof, Seller hereby constitutes and appoint the Buyer the true and lawful agent and attorney in fact of Seller,
with full power of substitution, in whole or in part, in the name and stead of Seller but on behalf and for the benefit of Buyer
and its successors and assigns, from time to time:
|
(a) |
to demand, receive and collect any and all of the Transferred Items and to give receipts and releases for and with respect
to the same, or any part thereof; |
|
(b) |
to institute and prosecute, in the name of Seller or otherwise, any and all proceedings at law, in equity or otherwise, that
Buyer or its successors and assigns may deem proper in order to collect or enforce any claim or right of any kind
hereby assigned or transferred or intended to so be; and |
|
(c) |
to do all things legally permissible, required or reasonably deemed by Buyer to be required to recover and collect the
Transferred Items and to use Seller’s name in such manner as Buyer may reasonably deem necessary for the collection
and recovery of the same. |
|
|
|
|
|
Seller
hereby declares that the foregoing powers are coupled with an interest and are and shall be irrevocable by Seller. |
4. Terms of the
Asset Purchase Agreement. The terms of the Asset Purchase Agreement, including but not limited to the Seller’s
representations and warranties relating to the Assets and the Rights, are incorporated herein by this reference. The Seller
acknowledges and agrees that the representations and warranties contained in the Asset Purchase Agreement shall not
be superseded hereby but shall remain in full force and effect. In the event of any conflict or inconsistency between the terms
of the Asset Purchase Agreement and the terms of this Bill of Sale, the terms of the Asset Purchase Agreement shall govern.
IN WITNESS WHEREOF, the
Seller has executed this Bill of Sale as of October 31, 2014.
|
DR. PARK AVE. |
|
|
|
|
By: |
/s/ Paul Fondacaro |
|
|
Paul Fondacaro, M.D., President |
SCHEDULE A
Medical Equipment
Name |
|
Model |
|
Serial
Number |
|
|
|
|
|
Cynosure Laser |
|
Triplex |
|
Serial#RW8A500803 |
|
|
|
|
|
Fotona Laser |
|
Dualis |
|
Serial# 05000120 |
|
|
|
|
|
Naturalight |
|
IPL |
|
Serial#AX5009510 |
|
|
|
|
|
Diomed Laser |
|
Diode |
|
Serial# 15P2874A |
|
|
|
|
|
Body-Jet |
|
Human Med |
|
Serial# US1120 |
|
|
|
|
|
Autoclave Midmark |
|
M11 |
|
Serial# V960420 |
|
|
|
|
|
Infusion Pump |
|
Wells Johnson |
|
Serial# E10003680 |
|
|
|
|
|
Aspirator |
|
Hercules |
|
Serial# 12360609 |
|
|
|
|
|
Zimmer Cryo |
|
Mediz Systeme |
|
Serial# 737876 |
|
|
|
|
|
Terason Ultrasound |
|
PA1A |
|
Serial# BKCNJ5370007 |
|
|
|
|
|
Microdermabrasion |
|
Dermaglow |
|
Serial# DG2-5400 |
|
|
|
|
|
Facial Steamer |
|
1000B |
|
Serial# FS10110266 |
|
|
|
|
|
Centifuge Regen-Lab |
|
80-2C |
|
Serial# 038 |
|
|
|
|
|
Ritter Midmark Exam Table |
|
222-015 |
|
Serial# V97667 |
|
|
|
|
|
Ritter Midmark Exam Table |
|
Model: 222-015 |
|
Serial# V976914 |
EXHIBIT
A-2
ASSIGNMENT
AND ASSUMPTION OF SERVICEMARKS AND TRADEMARKS
ASSIGNMENT
OF SERVICEMARKS AND TRADEMARKS
THIS
ASSIGNMENT OF SERVICEMARKS AND TRADEMARKS is effective as of October 31, 2014 by Dr. Park Ave., a Nevada corporation (“Assignor”)
and Dr. Park Avenue Inc., a Nevada corporation (“Assignee”).
Recital
Assignor
and Assignee are parties to an Asset Purchase Agreement dated October 31, 2014 (“Agreement”) pursuant to which Assignor
agreed to sell to Assignee and Assignee agreed to buy from Assignor the Acquired Assets, as defined in the Agreement, including,
without limitation the servicemarks, trademarks and trade names of Assignor. Pursuant to the Agreement, Assignor has agreed to
execute such instruments as Assignee may reasonably request in order to assign, transfer, grant, convey, assure and confirm to
Assignee and its successors and assigns, or to aid and assist in the collection or reducing to possession by the Assignee of,
all such assets.
Assignor
desires to transfer and assign to Assignee desires to accept the transfer and assignment of, all of Assignor’s worldwide
right, title and interest in, to and under Assignor’s registered and unregistered domestic and foreign servicemarks, trademarks
and trade names, including without limitation the servicemarks, trademarks and trade names listed on Schedule A attached hereto
and incorporated herein by reference, all of which are referred to herein as the “Marks”.
Agreement
NOW,
THEREFORE, the Assignor, for and in exchange for the payment of the purchase price set forth in the Agreement, the receipt of
which is hereby acknowledged, does hereby transfer and assign to Assignee, and Assignee hereby accepts the transfer and assignment
of, all of Assignor’s worldwide right, title and interest in, to and under the Marks, together with the goodwill of the
business associated therewith and which is symbolized thereby, all rights to sue for infringement of any Mark which arising prior
to or subsequent to the date of this Assignment and any and all renewals and extensions thereof that may hereafter be secured
und the laws now or hereafter in effect in the United States and in any other jurisdiction, the same to be held and enjoyed by
Assignee, its successors and assigns from and after the date of this Assignment and fully and entirely as the same would have
been held and enjoyed by Assignor had this Assignment not been made.
Except
to the extent that federal law preempts state law with respects the matters covered hereby, this Assignment shall be governed
by and construed on accordance with the laws of the State of New Jersey without giving effect to the principles of conflicts of
laws thereof.
IN
WITNESS WHEREOF, Assignor has caused its duly authorized officer to execute this Assignment as of the date first above written.
|
DR
PARK AVE. |
|
|
|
|
By: |
/s/
Paul Fondacaro |
|
|
Paul
Fondacaro, M.D., President |
State
of New Jersey |
) |
|
County of Hudson |
) |
|
On
this 31ST day of October, 2014, before me personally appeared Paul Fondacaro, known to me to be the person whose name
is set forth within the instrument and acknowledged to me that he executed the same in his authorized capacity for the reasons
and purposes set forth therein.
|
/s/
Roanld Yumul |
|
Notary
Public |
SCHEDULE
A
Registered
Servicemarks and Trademarks
Servicemark
or Trademark |
|
U.
S. Registration No. |
|
Registration
Date |
|
|
|
|
|
“Dr.
Park Ave.com” inside a rectangular shaped box with a city skyline background |
|
No.
3,771,024 |
|
April
6, 2010 |
|
|
|
|
|
Lipo
Boost- mark consisting of standard characters without claim to any particular font, style, size or color |
|
No.
4,053,942 |
|
November
8, 2011 |
EXHIBIT A-3
ASSIGNMENT AND ASSUMPTION OF LEASE
AND LANDLORD CONSENT
|
Initials: |
|
|
|
|
|
LL_______ |
AR______ |
AE______ |
ASSIGNMENT AND ASSUMPTION OF LEASE
AND LANDLORD’S CONSENT
THIS
AGREEMENT made this 17th day of October, 2014, by and between FIRST REAL ESTATE INVESTMENT TRUST OF NEW JERSEY, a New
Jersey business trust, hereinafter referred to as "Landlord", and, PARK AVENUE MEDICAL & SURGICAL ASSOCIATES,
LLC, a New Jersey limited liability company (successor in interest to Park Avenue Medical & Surgical Associates, PC), hereinafter
referred to as "Assignor", and DR PARK AVE INC, a Nevada corporation, having offices at 846 Franklin Avenue, Franklin
Lakes, New Jersey 07417, hereinafter referred to as "Assignee"; and
WHEREAS,
Landlord and Assignor entered into a Lease Agreement dated June 9, 2010, for Premises known as 846 Franklin Avenue, Franklin Lakes,
New Jersey, hereinafter referred to as "Lease"; and
WHEREAS,
the Assignor desires to assign its interest under the Lease to the Assignee named herein;
NOW,
THEREFORE, in consideration of the sum of TEN ($10.00) DOLLARS in hand paid by the Assignee to the Assignor, receipt of which
is hereby acknowledged, as well as mutual covenants set forth herein, as well as other good and valuable consideration, it is agreed
by and between the parties as follows:
1. The
Assignor assigns to the Assignee all of its right, title and interest in and to the subject Lease for the balance of the Term
remaining thereunder, subject to the payment of the rent and performance of the Tenant's covenants, conditions and stipulations
contained therein. Assignor also assigns to Assignee all of its right, title and interest in and to the Security Deposit under
the Lease in the sum of $9,450.00.
2. The
Assignee agrees to pay to the Landlord all Minimum Rent and Additional Rent reserved by the Lease on the dates and in the manner
therein provided and to perform and observe all of the covenants, conditions and stipulations contained therein and on the Tenant's
part to be performed. In the event that the Assignee is more than one entity or individual, each entity’s or individual’s
liability shall be joint and several.
3. The
undersigned Landlord hereby consents to this assignment upon the express condition that the Assignor shall remain liable for the
prompt payment of the Minimum Rent and Additional Rent and the keeping and performance of all conditions and covenants of the
Lease by the Tenant to be kept and performed for the remainder of the Term of the Lease, including any extension or renewal of
same. The Landlord does not hereby consent to any further assignment or to any subletting of the Premises except pursuant to separate
application made pursuant to the provisions of the Lease.
4. Landlord's
consent is conditioned upon and subject to the following:
| a) | Assignor paying
all Minimum Rent and Additional Rent due up to and including the last day of the calendar month in which the closing date for
the sale of business and assignment of Lease occur. |
| | |
| b) | The use for the
Premises shall remain and be limited to the Permitted Use contained in the Lease. |
5. All capitalized terms in this
Assignment and Assumption of Lease and Landlord’s Consent which are defined in the Lease shall carry the same definition
as set forth in the Lease.
IN
WITNESS WHEREOF, the parties have duly executed this Assignment and Assumption of Lease and Landlord’s Consent as of
the day and year first above written.
WITNESS: |
|
Assignor: |
|
|
PARK AVENUE MEDICAL & SURGICAL |
|
|
ASSOCIATES, LLC |
|
|
|
|
|
|
By: |
/s/ Paul Fondacaro |
|
|
|
Paul Fondacaro, Managing Member |
|
|
|
|
WITNESS: |
|
Assignee: |
|
|
DR PARK AVE INC |
|
|
|
|
|
|
By: |
/s/ Paul Fondacaro |
|
|
|
Paul Fondacaro, President |
|
|
|
|
WITNESS: |
|
Landlord: |
|
|
FIRST REAL ESTATE INVESTMENT TRUST |
|
|
OF NEW JERSEY |
|
|
|
|
|
|
By: |
/s/ Robert S. Hickman |
|
|
|
Robert S. Hekemian, Chairman of the Board |
Page 3 of 3