CERTAIN SCHEDULES AND EXHIBITS HAVE BEEN OMITTED PURSUANT TO ITEM 601(a)(5) OF REGULATION S-K. IN ADDITION, PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO ITEM 601(b)(2) of REGULATION S-K BECAUSE THEY (i) ARE NOT MATERIAL AND (ii) WOULD LIKELY...
CERTAIN SCHEDULES AND EXHIBITS HAVE BEEN OMITTED PURSUANT TO ITEM 601(a)(5) OF REGULATION S-K. IN ADDITION, PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO ITEM 601(b)(2) of REGULATION S-K BECAUSE THEY (i) ARE NOT MATERIAL AND (ii) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED. THE COMPANY AGREES TO XXXXXXX SUPPLEMENTALLY TO THE COMMISSION AN UNREDACTED COPY OF THIS EXHIBIT, OR A COPY OF ANY OMITTED SCHEDULE OR EXHIBIT, UPON REQUEST.
BY AND BETWEEN
TABULA RASA HEALTHCARE GROUP, INC.,
as Seller,
SYMPHONY CLINIC, LLC,
as Buyer,
and solely for purposes of Section 2.8 hereof,
CUREATR INC.,
as Buyer Guarantor
Dated as of March 2, 2023
TABLE OF CONTENTS
Page
i
ii
Exhibits
Exhibit ANet Working Capital of the Business
Exhibit BForm of Seller Note
Exhibit CForm of Bill of Sale
Exhibit DForm of Transition Services Agreement
Exhibit EForm of IP Assignment Agreement
Exhibit FForm of Consulting Agreement
i
This ASSET Purchase Agreement (this “Agreement”), is made as of March 2, 2023, by and among Tabula Rasa HealthCare Group, Inc., a Delaware corporation (“Seller”), Symphony Clinic, LLC, a Delaware limited liability company (“Buyer”), and solely for purposes of Section 2.8 hereof, Cureatr Inc., a Delaware corporation (the “Buyer Guarantor”). Each of Buyer and Seller is sometimes referred to in this Agreement as a “Party” and collectively as the “Parties.”
BACKGROUND
| A. | Seller operates an unincorporated business division formerly called SinfoniaRx, which provides both full-service and software as a service (SaaS) solutions to health plans, pharmacy benefit managers, care delivery organizations, pharmaceutical manufacturers, and pharmacies to support medication therapy management (MTM), and Medicare Star (the “Business”). |
| B. | Seller desires to sell to Buyer the Purchased Assets, and Xxxxx wishes to purchase from Seller the Purchased Assets and assume from Seller all of the Assumed Liabilities, all on the terms and conditions set forth in, this Agreement. |
| C. | Seller owns and operates multiple other business divisions and assets, and this Agreement relates only to the purchase and sale of the Business. |
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound hereby, agree as set forth below.
“Action” means any action, suit, arbitration or proceeding of any nature or kind whatsoever, whether civil, criminal or administrative, at law or in equity, by or before any Governmental Body or arbitrator.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Person, where “control” (and its variants) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting interests, contract, or otherwise.
“Agreed Amount” has the meaning set forth in Section 7.5.1(b).
“Agreement” has the meaning set forth in the preamble, and includes all Disclosure Schedules and Exhibits attached hereto.
“Allocation Methodology” has the meaning set forth in Section 6.1.4.
“Allocation Schedule” has the meaning set forth in Section 6.1.4.
“Ancillary Agreements” means the Bill of Sale, the Transition Services Agreement, the IP Assignment Agreement, and the other agreements, instruments and documents required to be delivered at the Closing hereunder.
“Annual Financial Statements” has the meaning set forth in Section 4.4.1.
“Assumed Contracts” has the meaning set forth in Section 2.2.1(c).
“Assumed Leases” has the meaning set forth in Section 2.2.1(b).
“Assumed Liabilities” has the meaning set forth in Section 2.3.1.
“Assumed Permits” has the meaning set forth in Section 2.2.1(i).
“Author” has the meaning set forth in Section 4.12.4.
“Base Purchase Price” has the meaning set forth in Section 2.4.
“Bill of Sale” has the meaning set forth in Section 3.2.1(a).
“Business” has the meaning set forth in the recitals to this Agreement.
“Business Day” means each day other than Saturday, Sunday or a day on which banking institutions in New York are authorized or obligated by law or executive order to close.
“Business Employee” means any full or part time employee of the Seller or one of its Affiliates who spends substantially all of his or her work time working for the Business as identified in Section 4.13.1 of the Disclosure Schedules.
“Business Intellectual Property” means any and all Business-Utilized Intellectual Property and any and all Third-Party Intellectual Property that is used or held for use primarily in connection with the Business.
“Business Intellectual Property Agreements” means any Contract relating to any Business Intellectual Property to which Seller is a party, including any co-existence or settlement agreements, forbearances to sue, or consents, but excluding (i) any Contracts for Third-Party Intellectual Property consisting primarily of software (including software provided as a service) that is generally, commercially available for less than $10,000 pursuant to a “shrink-wrap,” “click-through” or similar non-negotiable non-exclusive license (such Contracts, “Off-the-Shelf Licenses”), (ii) non-disclosure agreements entered in the ordinary course of business, the subject matter of which is limited to the use, nondisclosure and confidentiality of information exchanged by the parties thereto and that do not include a license or access to Business Intellectual Property, (iii) non-exclusive licenses granted to customers in the ordinary course of business and that do not include access to Business Source Code, and (iv) Proprietary Information Agreements with current and former Business Employees and independent contractors of Seller.
“Business Privacy Commitments” has the meaning set forth in Section 4.12.10(a).
“Business Products” means all products and services that have been or are currently produced, marketed, licensed, sold, supported or maintained with respect to the Business and all products or services currently under development by Seller, including any product or services that form the basis, in whole or in part, of any financial statements or sales projections provided to Buyer.
“Business Registered Intellectual Property” means United States, international and foreign: (a) patents and patent applications (including provisional applications), (b) registered trademarks and service marks, applications to register trademarks and service marks, intent-to-use applications, or other registrations or applications related to trademarks and service marks, (c) registered Internet domain names, and (d) registered copyrights and applications for copyright registration, in each case with respect to any Business-Utilized Intellectual Property.
“Business Source Code” means any Source Code of any Business-Utilized Intellectual Property or Business Products.
“Business-Utilized Intellectual Property” means any and all Intellectual Property that is owned or purported to be owned by Seller and used or held for use primarily in connection with the Business.
“Buyer” has the meaning set forth in the preamble.
“Buyer Delivered Documents” means this Agreement and each of the other agreements, instruments, and documents to be executed and delivered by Buyer pursuant to this Agreement.
“Buyer Fundamental Representations” means the representations and warranties contained in Section 5.1 (Organization), Section 5.2 (Authority and Enforceability), and Section 5.5 (Brokers).
“Buyer Guarantor” has the meaning set forth in the preamble.
“Buyer Indemnification Basket” means one million dollars ($1,000,000).
“Buyer Indemnified Parties” means Buyer and its officers, managers, directors, employees, agents and representatives.
“CHM Agreement” means that certain Master Services Agreement, dated as of November 27, 2019, by and between Comprehensive Health Management, Inc. and Tabula Rasa HealthCare Group, Inc. (f/k/a TRHC OpCo, Inc.).
“Claim-Related Expenses” means any and all third party expenses incurred in connection with investigating or defending any claim, action, suit or proceeding incident to any matter indemnified against hereunder, including court filing fees, court costs, arbitration fees or costs, witness fees and reasonable and documented fees and disbursements of legal counsel, investigators, expert witnesses, accountants and other professionals.
“Claimed Amount” has the meaning set forth in Section 7.5.1(a).
“Closing” has the meaning set forth in Section 3.1.
“Closing Date” has the meaning set forth in Section 3.1.
“Closing Date Payment Amount” has the meaning set forth in Section 2.5.1.
“Closing Date Working Capital Amount” means the Net Working Capital as of the Effective Time.
“Closing Statement” has the meaning set forth in Section 2.5.1.
“COBRA” the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the applicable rulings and regulations thereunder.
“Consent Offset Amount” means an amount equal to $154,560.00.
“Contested Amount” has the meaning set forth in Section 7.5.1(b).
“Contract” means any contract, promissory note, indenture, mortgage, deed of trust, financial instrument, lease, license, whether written or oral, or other agreement of any kind that is binding on a Person under applicable Law.
“Copyleft License” shall mean any license of software that requires, as a condition of use, modification or distribution of the software licensed under such license (the “Copyleft Software”), that the software, or other Technology incorporated into, derived from, used, or distributed with the Copyleft Software: (i) be made available or distributed in a form other than binary code or object code form (e.g., Source Code form); (ii) be licensed for the purpose of preparing derivative works; (iii) be licensed under terms that allow the other Technology incorporated into, derived from, used, or distributed with the Copyleft Software, or portions thereof or interfaces therefor, to be reverse engineered, reverse assembled or disassembled (other than by operation of Law); or (iv) be redistributable at no license
fee. For all purposes of and under this Agreement, “Copyleft Licenses” shall include the GNU General Public License, the GNU Lesser General Public License, the GNU Affero General Public License, the Mozilla Public License, the Common Development and Distribution License, and the Eclipse Public License.
“COVID-19” means the 2019 novel coronavirus disease, COVID-19 virus (SARS_COV-2 and related strains and sequences), or mutations or antigenic shifts thereof.
“Data Security Program” has the meaning set forth in Section 4.12.10(c).
“Deductible” has the meaning set forth in Section 7.4.1.
“Disclosure Schedules” means the Disclosure Schedules attached to this Agreement (including all attachments thereto).
“Earnout Amount” means the total amount payable to Seller pursuant to Section 2.8, but in no event more than one million dollars ($1,000,000) in the aggregate.
“Earnout Conditions” means, in connection with an amendment to the regulations governing the Medicare Prescription Drug Benefit (Part D) program, each of the following:
(i) the reduction of the cost threshold for annual medications from four thousand nine hundred and fifty-three dollars ($4,953.00) to:
(b) an amount ranging from three thousand eight hundred forty-nine dollars and one cent ($3,849.01) to four thousand three hundred and forty dollars ($4,340.00) (the “10% Medication Cost Condition”);
(c) an amount ranging from three thousand five hundred and six dollars and one cent ($3,506.01) to three thousand eight hundred forty-nine dollars ($3,849.00) (the “20% Medication Cost Condition”);
(d) an amount ranging from three thousand two hundred eleven dollars and one cent ($3,211.01) to three thousand five hundred six dollars ($3,506.00) (the “30% Medication Cost Condition”);
(e) an amount ranging from three thousand fifteen dollars and one cent ($3,015.01) to three thousand two hundred eleven dollars ($3,211.00) (the “40% Medication Cost Condition”);
(f) an amount ranging from two thousand eight hundred forty-three dollars and one cent ($2,843.01) to three thousand fifteen dollars ($3,015.00) (the “50% Medication Cost Condition”);
(g) an amount ranging from two thousand seven hundred twenty-one dollars and one cent ($2,721.01) to two thousand eight hundred forty-three dollars ($2,843.00) (the “60% Medication Cost Condition”);
(h) an amount ranging from two thousand six hundred twenty-three dollars and one cent ($2,623.01) to two thousand seven hundred twenty-one dollars ($2,721.00) (the “70% Medication Cost Condition”);
(i) an amount ranging from two thousand five hundred forty-nine dollars and one cent ($2,549.01) to two thousand six hundred twenty-three dollars ($2,623.00) (the “80% Medication Cost Condition”);
(j) an amount ranging from two thousand five hundred dollars and one cent ($2,500.01) to two thousand five hundred and forty-nine dollars ($2,549.00) (the “90% Medication Cost Condition”);
(j) an amount equal to or less than two thousand five hundred dollars ($2,500.00) (the “100% Medication Cost Condition” and collectively with the 90% Medication Cost Condition, 80% Medication Cost Condition, 70% Medication Cost Condition, 60% Medication Cost Condition, 50% Medication Cost
Condition, 40% Medication Cost Condition, 30% Medication Cost Condition, the 20% Medication Cost Condition and the 10% Medication Cost Condition, the “Medication Cost Conditions”); and
(ii) the reduction of the medication count threshold from eight (8) to (a) seven (7) (the “50% Medication Count Condition”) or (b) six (6) or less (the “100% Medication Count Condition”, and together with the 50% Medication Count Condition, the “Medication Count Conditions”).
“Earnout Period” has the meaning set forth in Section 2.8.1.
“Effective Time” has the meaning set forth in Section 3.1.
“Employee Benefit Plan” means any (a) “employee benefit plan,” within the meaning of Section 3(3) of ERISA (whether or not subject to ERISA), (b) stock or membership interest option, stock or membership interest purchase, stock or membership interest appreciation, restricted stock or restricted membership interest, equity purchase, VEBA, profit sharing, pension, retirement, bonus, commission, retention, change in control, severance pay plans, programs or arrangements, deferred compensation, incentive compensation, medical, dental or other health or welfare, life insurance, flexible spending account, cafeteria plan, disability, accident, salary continuation, paid time off, holiday, vacation, supplemental retirement and unemployment benefit plan or program (whether or not insured), employment agreements, independent contractor or (c) other employee benefit plan, program or fringe benefit plan, fund, policy, program, practice agreement or arrangement (whether written or unwritten, qualified or nonqualified, funded or unfunded, insured or self-insured) providing compensation or other benefits to Business Employees, or that the Seller or an Affiliate of Seller has currently or previously established, maintained, sponsored or contributed to for the benefit of any Business Employee.
“Encumbrance” means any mortgage, deed of trust, pledge, security interest, easement, lien, charge, conditional sale or other title retention agreement, defect in title or other restriction of a similar kind.
“Environmental Law” means Laws relating to (a) the control of any pollutant, contaminant, or hazardous material, the protection of human health, or the protection or restoration of the environment (including air, water and land) or natural resources; and (b) the generation, manufacture, processing, use, handling, treatment, storage, disposal, release, distribution and transportation of solid, gaseous or liquid wastes, or hazardous materials, including the Clean Air Act (42 X.X.X. §0000 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), the Federal Water Pollution Control Act, as amended by the Clean Water Act (33 X.X.X. §0000 et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act, as amended by the Superfund Amendments and Reauthorization Act (42 X.X.X. §0000 et seq), the Toxic Substances Control Act (15 X.X.X. §0000 et seq.), the Oil Pollution Act of 1990 (33 X.X.X. §0000 et. seq.), the Emergency Planning and Community Right to Know Act (42 U.S.C. §11001 et seq.), and the Hazardous Materials Transportation Act (49 U.S.C. §5101 et seq.).
“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended, and the applicable rulings and regulations thereunder.
“ERISA Affiliate” means, with respect to any entity, any trade or business, whether or not incorporated, that together with such entity would be deemed a “single employer” within the meaning of Section 414(b), (c), (m), or (o) of the Code.
“ESI Agreement” means that certain Master Services Agreement, dated as of January 31, 2017, by and between SinfoniaRx, Inc. and Express Scripts Holding Company, as amended by the First Amendment to the Master Services Agreement, dated as of August 8, 2017, by and between SinfoniaRx, Inc. and Express Scripts Holding Company, as further amended by the Second Amendment to the Master Services Agreement, dated as of April 15, 2020, by and between SinfoniaRx, Inc. and Express Scripts Holding Company , as further amended by the Third Amendment to the Master Services Agreement, dated as of October 13, 2021, by and between Evernorth Health Inc. f/k/a Express Scripts Holding Company and Tabula Rasa HealthCare Group, Inc. (as successor-in-interest to SinfoniaRx, Inc.).
“Estimated Working Capital Amount” has the meaning set forth in Section 2.6.
“Excluded Assets” has the meaning set forth in Section 2.2.2.
“Excluded Liabilities” has the meaning set forth in Section 2.3.2.
“Exhibits” means the exhibits attached to this Agreement.
“Federal Health Care Program” or “Federal Healthcare Program” means any plan or program that provides health benefits directly, through insurance, or otherwise that is directly funded in whole or part by the US government (other than the Federal Employees Health Benefits Program (5 U.S.C. §§ 8901 to 8914)) or a state health care program funded by the US federal government directly or through any allotment, as set forth at 42 C.F.R. § 1000.10, as the same may be amended from time to time.
“Financial Statements” has the meaning set forth in Section 4.4.1.
“GAAP” means United States generally accepted accounting principles in effect for the relevant time period.
“General Survival Date” has the meaning set forth in Section 7.1.1.
“Governing Documents” means, with respect to any Person who is not a natural Person, the certificate or articles of incorporation, certificate or articles of formation or organization, bylaws, operating agreement, articles of association, or other charter documents or organizational or governing documents or instruments of such Person.
“Governmental Body” means any court or government (federal, state, local, foreign or provincial) or any political subdivision thereof, including any department, commission, board, bureau, agency or other regulatory, administrative or governmental authority or instrumentality.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, resolution or settlement agreement, determination or award entered by or with any Governmental Body.
“Healthcare Laws” means all Laws applying to Persons involved in the provision or administration of, or the submission of claims for or the receipt of payment for, healthcare products or services by reason of the nature of their businesses and including: (a) the federal Anti‑Kickback Statute (42 U.S.C. § 1320a‑7b(b)), the Civil Monetary Penalties Law (42 U.S.C. § Section 1320a‑7), the Exclusions Law (42 U.S.C. § 1320a‑7a), the Physician Self-Referral Law, commonly known as the “Xxxxx Law” (42 U.S.C. §§ 1395nn and 1396b), the civil False Claims Act (31 U.S.C. § 3729 et seq.), the Federal Criminal False Claims Act (18 U.S.C. § 287), the False Statements Relating to Health Care Matters Law (18 U.S.C. § 1035), Health Care Fraud (18 U.S.C. § 1347) and any regulations promulgated pursuant to such statutes, (b) Medicare (Title XVIII of the Social Security Act), the regulations promulgated thereunder that has the force of Law, (c) Medicaid (Title XIX of the Social Security Act), including the regulations promulgated thereunder that has the force of Law, (d) TRICARE (10 U.S.C. § 1071 et seq.) and the regulations promulgated thereunder, (e) the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010, (f) the Federal Food, Drug, and Cosmetic Act, as amended, 21 U.S.C. § 301 et seq., the Public Health Service Act, the U.S. Food and Drug Administration regulations promulgated thereunder, (g) quality and safety Laws relating to the regulation, storage, provision or administration of, or payment for, healthcare products or services, including prescription products and controlled substances, and (h) licensure Laws relating to the regulation, provision or administration of, or payment for, healthcare items, services or goods, and (i) any implementing regulations of a Third-Party Payor Program that has the force of Law.
“HIPAA” has the meaning set forth in Section 4.18.2.
“Indebtedness” means, at a particular time and without duplication, (i) indebtedness for borrowed money (including principal and interest), (ii) amounts owing as deferred purchase price for property or services, (iii) indebtedness evidenced by any note, bond, debenture, or other debt instrument or debt security, and any capitalized lease obligations, (iv) any amounts owed under a letter of credit or performance bond, (v) guarantees of another
Person’s indebtedness, but excluding obligations in respect of open purchase orders for inventory, supplies or services entered into in the ordinary course of business that are included in the Purchased Assets, (vi) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to acquired property, (vii) any obligations, contingent or otherwise, under acceptance credit, letters of credit or similar facilities, (viii) all obligations arising from cash/book overdrafts, (ix) all obligations secured by a lien other than a Permitted Encumbrance, (x) all indebtedness under interest rate or currency swap transactions, (xi) all accrued interest, prepayment premiums or penalties related to any of the foregoing, and (xii) any guaranty of any of the foregoing. Indebtedness will not include any Liabilities included in the calculation of Net Working Capital.
“Indemnified Party” has the meaning set forth in Section 7.5.1(a).
“Indemnifying Party” has the meaning set forth in Section 7.1.1.
“Independent Accountant” has the meaning set forth in Section 2.7.2.
“Intellectual Property” means (i) Intellectual Property Rights and (ii) Technology.
“Intellectual Property Rights” means any and all intellectual property rights whether protected, created, or arising under the Laws of the United States or any other jurisdiction throughout the world, including all rights in, arising out of, or associated therewith with any of the following: (a) patents, utility models, and applications therefor and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof and equivalent or similar rights in inventions and discoveries anywhere in the world, including invention disclosures, common law and statutory rights associated with trade secrets, confidential and proprietary information and know-how, ideas, designs, concepts, compilations of information, methods, techniques, procedures and processes (whether patentable or unpatentable and whether or not reduced to practice), industrial designs, and any registrations and applications for any of the foregoing; (b) trade names, corporate names, product names, logos, slogans, trade dress, trademarks and service marks, trademark and service mark registrations, trademark and service mark applications, all other designations of source, origin, sponsorship, endorsement or certification, and any and all goodwill associated with and symbolized by the foregoing items; and (c) Internet domain name applications and registrations, Internet and World Wide Web URLs or addresses.
“Interim Financial Statements” has the meaning set forth in Section 4.4.1.
“IP Assignment Agreement” has the meaning set forth in Section 3.2.1(d).
“IRS” means the United States Internal Revenue Service.
“Law” means any applicable statute, law, ordinance, code, rule, regulation, rule, order, guidance, judgment, decree or legally binding decisions enacted, adopted, issued or promulgated by any Governmental Body.
“Leased Real Property” has the meaning set forth in Section 4.9.1.
“Leases” has the meaning set forth in Section 4.9.1.
“Lease Assignments” has the meaning set forth in Section 3.2.1(k).
“Liability” means, with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.
“Losses” means, without duplication, any and all reasonably foreseeable losses, Liabilities, costs, settlement payments, judgments, fines, penalties, damages, or Claim-Related Expenses.
“Lower Target Working Capital Amount” means an amount equal to one million three hundred seventy-five thousand dollars $(1,375,000).
“Material Adverse Effect” means any event, condition, effect, change, development or circumstance that, individually or when considered together with all other events, conditions, effects, changes, developments or circumstances, has had or would reasonably be expected to have a materially adverse effect on the business, assets, financial condition or results of operations of the Business, provided, however, that in no event shall any of the following, alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been, a Material Adverse Effect: any facts, circumstances, events, changes, effects or occurrences (a) resulting from the execution and delivery of this Agreement or attributable to the announcement of this Agreement or the transactions contemplated by this Agreement; (b) resulting from or relating to political conditions or any acts of terrorism, military action, or war (whether or not declared) or any escalation or worsening thereof or any epidemic, pandemic or disease outbreak (including COVID-19); (c) relating to generally applicable economic conditions (including the state of the financial, debt, credit or securities markets, in the United States or elsewhere) or the industries in which the Business operates in general; (d) relating to any stoppage or shutdown of any Governmental Body (including any default by a Governmental Body or delays in payments or delays or failures to act by any Governmental Body), or any continuation of any such stoppage or shutdown; (e) resulting from or relating to any change in Laws or GAAP or authoritative interpretations thereof; (f) resulting from or relating to any natural or man-made disaster or acts of God; (g) resulting from or relating to the failure of the Business to meet projections, forecasts or estimates delivered to any Person (provided that the underlying cause of such failure may be taken into account in determining whether there has been a Material Adverse Effect); or (h) resulting from changes or conditions generally affecting the industry in which Seller operates the Business; provided, further, however, that any effect referred to in clauses (a), (b), (c), (e) or (h) may be taken into account in determining whether or not there has been a Material Adverse Effect to the extent any such effect adversely affects the Business in a material and disproportionate manner relative to other companies in the same industry.
“Material Contracts” has the meaning set forth in Section 4.16.1.
“Medication Cost Condition” has the meaning set forth in the definition of Earnout Conditions in this Section 1.1.
“Medication Count Condition” has the meaning set forth in the definition of Earnout Conditions in this Section 1.1.
“Most Recent Balance Sheet” has the meaning set forth in Section 4.4.2.
“Most Recent Balance Sheet Date” has the meaning set forth in Section 4.4.2.
“MTM-Qualified Member” means an Evernorth Health Inc. f/k/a Express Scripts Holding Company (“ESI”) plan member who has either (i) been provided to Buyer directly by ESI as MTM-qualified, or (ii) been determined by Buyer in its reasonable discretion to be MTM-qualified based on the qualification rules published by CMS as modified by the Business pursuant to customer requests.
“Net Working Capital” means an amount equal to (i) the sum of the current assets of the Business described in Exhibit A that are included in the Purchased Assets minus (ii) the sum of the current liabilities of the Business described in Exhibit A that are included in the Assumed Liabilities, in each case, as calculated in accordance with Exhibit A and GAAP.
“Non-Transferable Asset” has the meaning set forth in Section 2.8.
“Notice of Claim” has the meaning set forth in Section 7.5.1(a).
“Open Source Materials” means any software that is distributed under an open source, public source, or freeware license, which includes (i) any license approved by the Open Source Initiative or any similar license, (ii) any license that meets the “Open Source Definition” of the Open Source Initiative or the “Free Software Definition” of the Free Software Foundation, (iii) any Creative Commons license and (iv) to the extent not included in the foregoing (i), (ii), and (iii), any Copyleft License.
“Ordinary Course of Business” means the ordinary and usual course of day-to-day operations of the Business through the date hereof consistent with past custom and practice (including with respect to quantity and frequency).
“Paid Indebtedness” has the meaning set forth in Section 2.5.3(a).
“Party” and “Parties” has the meaning set forth in the preamble to this Agreement.
“Payoff Letters” has the meaning set forth in Section 2.5.3(a).
“Periodic Non-Income Taxes” has the meaning set forth in Section 6.1.1.
“Permits” has the meaning set forth in Section 4.18.1 and includes the following: License Number PH32694 issued by the Florida Board of Pharmacy and License Number Y008306 issued by the Arizona State Board of Pharmacy.
“Permitted Encumbrances” means (a) liens for Taxes and other governmental charges and assessments that are not yet due and payable or that are being contested in good faith, (b) liens or rights of lessors, landlords, carriers, warehousemen, mechanics, materialmen and repairmen and other similar liens arising in the ordinary course of business for sums not yet due and payable, (c) easements, rights of way and liens or restrictions on use that are imposed by Law relating to zoning, building or land use, (d) other non-monetary liens on, or imperfections of (or defects in) title with respect to, and encroachments upon, property that do not materially impair the ability to use of the property affected thereby as it is currently being used (including in each case matters that would be reflected on any real property survey), (e) those non-exclusive licenses to Intellectual Property listed on Schedule 1.1, and (f) with respect to securities, restrictions imposed by applicable securities Laws.
“Person” means and includes a natural person, a corporation, an association, a partnership, a limited liability company, a trust, a joint venture, an unincorporated organization or a Governmental Body.
“Personal Data” shall mean any information that relates to an identified or identifiable natural Person or otherwise constitutes personally identifiable information, personal information, personal data or similar information protected by Law, including a natural Person’s (including a customer’s or an employee’s) name, street address, telephone number, e-mail address, photograph, social security number, driver’s license number, passport number or customer or account number, health information, consumer report information, device identifiers, transaction identifier, IP addresses, physiological and behavioral biometric identifiers or any other piece of information that alone or in combination with other information directly or indirectly collected, held or otherwise managed by or for Seller allows the identification of or contact with a natural person, or could reasonably be associated with, linked to, or otherwise used to identify a natural person (and which, for greater certainty, includes all such information with respect to employees).
“Post-Closing Adjustment Amount” has the meaning set forth in Section 2.7.3.
“Post-Closing Period” means any Tax Period starting on or after the Closing Date, or the portion of any Straddle Period starting on the Closing Date.
“Post-Closing WC Statement” has the meaning set forth in Section 2.7.1.
“Pre-Closing Period” means any Tax Period (or portion of any Straddle Period) other than a Post-Closing Period.
“Privacy Laws” shall mean any applicable Laws relating to (i) the confidentiality, secrecy, security, protection, disposal, use, disclosure, international transfer or other processing of Personal Data (other than HIPAA), (ii) incident reporting and data breach notifying requirements regarding Personal Data (other than HIPAA), and (iii) email, text message, or telephone communications. Without limiting the foregoing, Privacy Laws include, as applicable: the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act, the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transaction Act, the Xxxxx-Xxxxx-Xxxxxx Act, the Family Educational Rights and Privacy Act, and all other similar international, federal, state, provincial, and local Laws.
“Processing” means the collection, creation, receipt, access, use, handling, recording, compilation, analysis, organizing, monitoring, maintenance, retention, storage, holding, transmission, transfer, protection, disclosure, amendment, distribution, erasure, destruction, or disposal of Personal Data.
“Proprietary Information Agreement” has the meaning set forth in Section 4.12.4.
“Purchase Price” has the meaning set forth in Section 2.4.
“Purchased Assets” has the meaning set forth in Section 2.2.1.
“Purchased IP Rights” has the meaning set forth in Section 2.2.1(e).
“Response Notice” has the meaning set forth in Section 7.5.1(b).
“Restricted Period” has the meaning set forth in Section 6.9.1.
“Review Period” has the meaning set forth in Section 2.7.1.
“Seller” has the meaning set forth in the preamble.
“Seller Delivered Documents” means this Agreement and each of the other agreements, instruments, and documents to be executed and delivered by Seller pursuant to this Agreement.
“Seller Fundamental Representations” means the representations and warranties contained in Section 4.1 (Organization and Qualifications), Section 4.2 (Authority and Enforceability), Section 4.8.1 (Title to Purchased Assets; Sufficiency), and Section 4.22 (Brokers).
“Seller Indemnification Basket” means one million dollars ($1,000,000).
“Seller Indemnified Parties” means Seller, any Affiliate of Seller, and the respective officers, managers, members, directors, employees, agents and representatives of any of them.
“Seller Note” has the meaning set forth in Section 2.5.2
“Seller Note Amount” has the meaning set forth in Section 2.5.2.
“Seller Special Representations” means the representations and warranties contained in Section 4.19 (Compliance with Healthcare Laws).
“Seller Taxes” means, without duplication, (a) any and all Taxes imposed on Seller for any taxable period, (b) any and all Transfer Taxes required to be paid by Seller pursuant to Section 6.1.3; (c) any and all Taxes of or imposed on or with respect to the Business or the Purchased Assets for any and all Pre-Closing Periods; (d) any and all Taxes of or imposed on Buyer or any of its Affiliates as a result of an inclusion under Section 951(a) of the Code
(or any similar provision of state or local Law) attributable to (i) “subpart F income,” within the meaning of Section 952 of the Code (or any similar provision of state or local Law) received prior to the Closing Date that is related or attributable to Seller or (ii) the holding of “United States property,” within the meaning of Section 956 of the Code (or any similar provision of state or local Law) prior to the Closing Date that is related or attributable to Seller, in each case, determined as if the taxable year of Seller ended on the day before the Closing Date, (e) any and all amounts payable (including Taxes) by Buyer with respect to the Purchased Assets or the Business as a result of transferee, successor or similar liability (including bulk transfer or similar Laws) by operation of Law or otherwise that relates to or arises from an event or transaction occurring before the Effective Time; (f) any and all Taxes incurred by or imposed on Buyer or its Affiliates as the result of any inaccuracy in or breach of any of the representations or warranties contained in Section 4.7; (g) any (i) deferred amounts of Taxes under the Coronavirus Aid, Relief, and Economic Security Act (U.S. Public Law 116-136), as thereafter amended (the “CARES Act”), whether employment Taxes under Section 2302 of the CARES Act or otherwise, (ii) disallowance of or deficiency or assessment with respect to any claimed Tax credits under Sections 7001 through 7005 of the Families First Coronavirus Response Act (U.S. Public Law 116-127, enacted in 2020) or Section 2301 of the CARES Act, and (iii) other Taxes (including the employee portion of any payroll Taxes) otherwise deferred under, or in response to, any other Laws enacted or issued in response to COVID-19 or any pandemic or public health emergency resulting therefrom, in all such cases with respect to any employees of or other service providers to Seller or any of its Affiliates relating to any Tax Period; and (h) any and all Taxes required to be deducted and withheld with respect to payments made by Buyer to Seller (or in connection with the transactions pursuant to this Agreement) pursuant to applicable Tax Laws in connection with the transactions contemplated under this Agreement.
“Seller’s Knowledge” and all permutations thereof, means the actual knowledge of Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxx, and Xxxxxx Xxxxxx, in each case after reasonable inquiry.
“Shared Contract” has the meaning set forth in Section 6.7.
“Source Code” means software source code or database specifications or designs, in a form other than object code form, including programmer comments, annotations and help text therein, data structures, instructions and procedural, object-oriented and other code, or any material proprietary information or algorithm contained in any software source code or database specifications or designs, which may be printed out or displayed in human readable form.
“Special Representation Basket” means two million dollars ($2,000,000).
“Stipulated Amount” has the meaning set forth in Section 7.5.1(e).
“Straddle Period” means any taxable year or period beginning on or before and ending after the Closing Date.
“Tabula Rasa Marks” has the meaning set forth in Section 6.6.
“Tax” or “Taxes” means any and all (a) taxes, charges, withholdings, fees, levies, customs, duties, imposts, and governmental charges or fees or other like assessments or charges of any kind whatsoever in the nature of taxes, imposed by or payable to any United States federal, state, local, or non-U.S. or other Governmental Body, including those related to income, net income, gross income, receipts, capital, windfall profits, utility, severance, production, ad valorem, real or personal property, production, value added, sales, goods and services, use, business or occupation, license, excise, registration, franchise, employment, unemployment, payroll, social security, workers compensation, deductions at source, withholding, alternative or add-on minimum, intangibles, transfer, gains, capital gains, stamp, estimated, transaction, title, capital, paid-up capital, net worth, profits, premium, recording, inventory and merchandise, business privilege, federal highway use, commercial rent or environmental tax; (b) interest, penalties, fines, additions to tax or additional amounts imposed by any Governmental Body in connection with (i) any item described in clause (a), or (ii) the failure to comply with any requirement imposed with respect to any Tax Return; and (c) liability in respect of any items described in clauses (a) or (b) payable by reason of contract (including any tax sharing agreement), assumption, transferee, successor or similar liability (including bulk transfer or similar Laws), operation of law (including pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local, or non-U.S. Law)) or otherwise.
“Tax Period” means any period for which a Tax Return is filed or required to be filed or, with respect to any Tax, the period for which the Tax is paid or reported or required to be paid or reported, as provided under the Code or other applicable Tax Laws.
“Tax Return” means any return, declaration, form, report, claim for refund, or information return or statement relating to any Tax, including any schedule or attachment thereto, and including any amendment thereof.
“Technology” means any and all of the following: works of authorship, computer programs, Source Code and executable code, whether embodied in software, firmware or otherwise, assemblers, applets, compilers, user interfaces, application programming interfaces, protocols, architectures, documentation, annotations, comments, designs, files, records, schematics, test methodologies, test vectors, emulation and simulation tools and reports, hardware development tools, models, tooling, prototypes, breadboards and other devices, data, data structures, databases, data compilations and collections, inventions (whether or not patentable), invention disclosures, discoveries, improvements, technology, proprietary and confidential ideas and information, know-how and information maintained as trade secrets, tools, concepts, techniques, methods, processes, formulae, patterns, algorithms and specifications, customer lists and supplier lists and any and all instantiations or embodiments of the foregoing.
“Third-Party Claim” has the meaning set forth in Section 7.5.1(a).
“Third-Party Intellectual Property” shall mean any and all Intellectual Property owned by a third party.
“Third-Party Payor Agreements” has the meaning set forth in Section 4.19.4.
“Third-Party Payor Programs” means all third-party payor programs, including Medicare, Medicaid, TRICARE and any other state or Federal Health Care Program, as well as managed care plans or other private insurance program or administered self-funded employer or union plans.
“Top Customers” has the meaning set forth in Section 4.17.
“Top Vendors” has the meaning set forth in Section 4.17.
“Transaction Expenses” means the fees and expenses incurred on or before the Closing and payable by Seller to third parties directly relating to or arising out of the transactions contemplated hereby, including legal, accounting, investment banking and other professional fees, in each case that are not paid prior to the Closing Date.
“Transfer Tax” has the meaning set forth in Section 6.1.3.
“Transferred Employee” has the meaning set forth in Section 6.2.1.
“Transition Services Agreement” has the meaning set forth in Section 3.2.1(b).
“Treasury Regulations” means the final and temporary regulations promulgated under the Code by the United States Department of the Treasury.
“Upper Target Working Capital Amount” means an amount equal to one million four hundred twenty-five thousand dollars ($1,425,000).
“U.S.” or “United States” means the United States of America.
“WARN Act” has the meaning set forth in Section 6.2.2.
“CHM Opp” means an opportunity to engage a Comprehensive Health Management, Inc. (“CHM”) plan member for adherence intervention that is provided by CHM to Buyer.
all as set forth on a closing statement to be agreed to and acknowledged by the Parties no later than one (1) Business Day prior to the Closing Date (the “Closing Statement”). With respect to the deductions from the Base Purchase Price described in this Section 2.5.1 above, at the Closing, Buyer shall make such payments to third parties on behalf of Seller in accordance with Sections 2.5.2 and 2.5.3 below, which such payments will be set forth on the Closing Statement.
| (i) | the 100% Medication Cost Condition is achieved, $670,000.00 |
| (ii) | the 90% Medication Cost Condition is achieved, $603,000.00, |
| (iii) | the 80% Medication Cost Condition is achieved, $536,000.00, |
| (iv) | the 70% Medication Cost Condition is achieved, $469,000.00, |
| (v) | the 60% Medication Cost Condition is achieved, $402,000.00, |
| (vi) | the 50% Medication Cost Condition is achieved, $335,000.00, |
| (vii) | the 40% Medication Cost Condition is achieved, $268,000.00, |
| (viii) | the 30% Medication Cost Condition is achieved, $201,000.00, |
| (ix) | the 20% Medication Cost Condition is achieved, $134,000.00, and |
| (x) | the 10% Medication Cost Condition is achieved, $67,000.00. |
| (i) | the 100% Medication Count Condition is achieved, $330,000.00, and |
| (ii) | the 50% Medication Count Condition is achieved, $165,000.00. |
If none of the Earnout Conditions is achieved during the Earnout Period, then no portion of the Earnout Amount will be paid or payable to Seller.
or assignment (a) without the consent of any Person would constitute a breach or default of such Contract or asset or create a termination right under such Contract, and such Person does not give its consent, or (b) would otherwise be unlawful, ineffective or would materially impair Buyer’s rights under the Contract or asset in question so that Buyer would in effect not acquire the benefit of such rights (each a “Non-Transferable Asset”). Seller shall use commercially reasonable efforts, and shall reasonably cooperate with Buyer, to obtain any required consent, authorization, approval or waiver, or any release, substitution or amendment required for the sale, assignment, transfer, conveyance or delivery of the Non-Transferable Assets. Without limiting the immediately preceding sentence, for a period of twelve (12) months from and after the Closing, Seller shall use commercially reasonable efforts to promptly obtain any consent, authorization, approval or waiver required to assign to Buyer each customer Contract that was not assigned to Buyer at the Closing. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller will sell, assign, transfer, convey and deliver to Buyer the relevant Non-Transferable Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable Transfer Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid in accordance with Section 6.1.3 of this Agreement. With respect to each such Non-Transferable Asset, (i) Seller will cooperate in any reasonable and lawful arrangements designed to provide to Buyer all of the benefits, economic and otherwise, of such Non-Transferable Asset (including promptly remitting to Buyer any revenue received by Seller on account of any such Non-Transferable Asset related to the Post-Closing Period), (ii) Seller will not terminate, alter or amend any such Non-Transferable Asset except with Buyer’s express written consent, and (iii) until such Non-Transferable Asset is assigned to Buyer, Seller will use its reasonable best efforts to enforce, at the reasonable direction and for the account, at the sole expense, of Buyer, any right of Seller arising under any such Non-Transferable Asset against any counterparty thereto or other Person (including the right to amend or terminate any such Non-Transferable Asset in accordance with the terms thereof). Seller will provide Buyer with notice of any claim asserted by any Person against or with respect to any Non-Transferable Asset after the Closing as soon as practicable after becoming aware of any such claim. If any such claim is asserted, Xxxxx will have the right to direct the defense of such claim at Buyer’s sole cost and expense, whether or not litigation, arbitration or other dispute resolution proceedings have been instituted and even if Xxxxx is not named as a party to such claim. Nothing in this Section 2.8 shall be deemed to apply to any Shared Contract, it being understood that Shared Contracts are governed by Section 6.7.
Except as specifically disclosed in the Disclosure Schedules (referencing the disclosure schedule sections) delivered by Seller to Buyer on the date of this Agreement, which contain exceptions and qualifications to the representations and warranties of Seller in this Agreement, Seller represents and warrants to Buyer as follows as of the date of this Agreement:
Buyer represents and warrants to Seller as follows as of the date of this Agreement:
Section 6.6 of the Disclosure Schedules and the names, marks, trade names and trademarks included in the Purchased Assets or otherwise primarily related to the Business as promptly as practicable following the Closing Date.
unless a final “determination” (within the meaning of Section 1313(a) of the Code) by the appropriate Governmental Body causes any such payment not to be treated as an adjustment to the Purchase Price for Tax purposes.
Symphony Clinic, LLC
c/o Cureatr Inc.
00 X. 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx, Chief Executive Officer
E-Mail: xxxxxxxxxxxxxx@xxxxxxx.xxx
with a copy, which will not constitute notice, to:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx; Xxxxx Xxxxxxx
E-Mail: xxxxxxxxx@xxxxxx.xxx; xxxxxxxx@xxxxxx.xxx
Tabula Rasa HealthCare Group, Inc.
c/o Tabula Rasa HealthCare, Inc.
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, President and Interim CEO
E-mail: xxxxxx@xxxx.xxx
with a required copy, which will not constitute notice, to:
O’Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Email: xxxxxxxxx@xxx.xxx
O’Melveny & Xxxxx LLP
Times Square Tower
7 Times Square, 26th Floor
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
E-mail: xxxxxxxx@xxx.xxx
A Party may change the address to which notice to it, or copies thereof, shall be addressed by giving notice thereof to the other Parties in conformity with the foregoing.
instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.5, and each Party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. Each Party further agrees that the only permitted objection that it may raise in response to any action for equitable relief is that it contests the existence of a breach or threatened breach of this Agreement.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the Parties have executed this Asset Purchase Agreement as of the day and year first above written.
SELLER:TABULA RASA HEALTHCARE GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and Interim CEO
BUYER: SYMPHONY CLINIC, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
BUYER GUARANTOR:CUREATR INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
[Signature Page to Asset Purchase Agreement]
