PURCHASE OF ASSETS AND TERMINATION AGREEMENT
Exhibit 10.47
THIS PURCHASE OF ASSETS AND TERMINATION AGREEMENT (“Agreement”), dated as of April 4,
2011 (the “Effective Date”), by and among Arcadia Resources, Inc., a Nevada corporation,
having its principal office at 0000 Xxxxxxxx Xxx Xxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000
(“Arcadia”), BestCare Travel Staffing, LLC, a Kentucky limited liability company,
(“BestCare”), and solely for purposes of Paragraph H of this Agreement, Xxxxxx X.
Xxxxxx, an individual residing in the State of Indiana and a member of BestCare (“Xxxxxx”).
WHEREAS, Arcadia, Arcadia Health Services, Inc. d/b/a Arcadia Health Care, a Michigan
corporation and an indirect wholly owned subsidary of Arcadia, BestCare and Xxxxxx are parties to
an Agreement for Appointment of Arcadia Health Services of Michigan, Inc. Represenatitive, dated as
of August 13, 2006 (the “Representative Agreement”) pursuant to which BestCare is engaged
in the business of providing travel nurse and other health staffing services in the United States
of America as a representative of Arcadia;
WHEREAS, pursuant to the Representative Agreement, Arcadia agreed to purchase and BestCare and
Xxxxxx, as represetatives of the members of BestCare, agreed to sell, at Arcadia’s election, all of
BestCare’s outstanding membership interests or substantially all of BestCare’s assets on the terms
set forth in the Representative Agreement pursuant to the terms and conditions set forth herein;
and
WHEREAS, Arcadia has elected to purchase substantially all of BestCare’s assets.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as follows:
| A. | Defined Terms. Unless the context otherwise requires, capitalized
terms used in this Agreement that are not defined herein have the meanings ascribed to
such terms in the Representative Agreement. |
| B. | Purchase of Assets. Upon the terms and conditions set forth herein,
Arcadia agrees to purchase and acquire, and BestCare agrees to transfer and sell the
Assets (as defined below) to Arcadia, free and clear of all liens, claims and
encumbrances. The purchased assets include substantially all of the assets of
BestCare, specified by but not limited to those set forth on Exhibit A-1
attached hereto, but exclude those assets set forth on Exhibit A-2 attached
hereto (collectively, the “Assets”). Arcadia understands that certain of the
Assets may at Closing be subject to a security interest in favor of Citizens Commerce
National Bank (the “CCNB Security Interest”). BestCare will cause the CCNB Security
Interest to be discharged and released within ten (10) business days of the Effective
Date. |
| C. | Assumption of Liabilities. BestCare acknowledges and agrees that
Arcadia shall assume no liabilities of BestCare except for those liabilities set forth
on Exhibit B
attached hereto (collectively, the “Assumed Liabilities”) pursuant to the
Assignment and Assumption Agreement in the form attached hereto as Exhibit C
(the “Assignment and Assumption Agreement”). |
| D. | Purchase Price. The aggregate consideration (the “Purchase
Price”) to be paid by Arcadia to BestCare for the Assets is $890,000. On the date
of this Agreement, Arcadia shall wire to BestCare the amount of $296,667 and enter into
a promissory note in the form attached hereto as Exhibit D (the “Promissory
Note”) having a principal amount of $593,333. |
| E. | Xxxx of Sale. On the date hereof, BestCare will deliver a xxxx of sale
transferring full and complete title to and ownership of the Assets to Arcadia, free
and clear of all liens, claims and encumbrances (except for the CCNB Security Interest)
(the “Xxxx of Sale”) in the form attached hereto as Exhibit E, and
will deliver possession of all of the Assets to Arcadia. |
| F. | Cooperation in the Transfer of the Business to Arcadia. BestCare and
BestCare’s directors, managers, members, officers, employees, and agents each
acknowledges and agrees that each of them will cooperate with Arcadia and do all such
acts and things in good faith as Arcadia may reasonably request in order to effectuate
the sale and transfer of the Assets to Arcadia and to consummate the transactions
contemplated herein. |
| G. | Lease of BestCare’s Business Premises. On the date hereof, BestCare
shall assign to Arcadia Health Services and Arcadia Health Services shall assume and
agree to perform all of BestCare’s rights and obligations under that certain Commercial
Lease, dated October 7, 2009, by and between Xxx X. Xxxxxx and Xxxxx X. Xxxxxx, husband
and wife (together, the “Lessor”), and BestCare (the “Lease”) for
BestCare’s office location at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000
(the “Leased Premises”). BestCare shall be responsible for obtaining any
required consent to such assignment and assumption. Arcadia shall pay, or prior to the
Effective Date shall have paid, BestCare $2,100 representing the lease deposit
previously provided to the Lessor, and Arcadia shall retain the right to such deposit
upon termination of the Lease. |
| H. | Termination of Representative Agreement. The parties acknowledge and
agree that the Representative Agreement shall terminate as of the Effective Date,
provided that nothing in this Agreement shall alter, terminate, impair or
otherwise affect the rights, duties and obligations of each of the parties under the
Representative Agreement that survive the termination of the Representative Agreement
pursuant to the terms thereof. For the avoidance of doubt, and without limiting the
foregoing, the parties acknowledge and agree that the rights, duties and obligations of
Arcadia, BestCare and BestCare’s directors, managers, members, officers, employees, and
agents, including without limitation the individuals named in Section 12.B of
the Representative Agreement, with respect to Section 12 (confidentiality and
prohibited competition), Section 16 (arbitration of disputes), and the other
provisions referenced in Section 14.D of the
Representative agreement shall survive the termination of the Representative
Agreement and continue in full force and effect to the extent and for the periods of
time set forth in the Representative Agreement. Notwithstanding the foregoing, (i)
the obligations of Xxxxxx regarding confidentiality and prohibited competition shall
be only as set forth in his existing Employment Agreement with Arcadia and (ii)
there shall be no bad debt charges against the bad debt reserve pursuant to Section
10 of the Representative Agreement after the Effective Date. |
| I. | Satisfaction of Accounts Payable. All of BestCare’s accounts payable
shall be the responsibility of BestCare, with Arcadia assuming no liability for such
accounts. BestCare shall certify to Arcadia, in writing, the satisfaction of all such
accounts payable upon completion of all payments. |
| J. | Closing. The closing of the transactions contemplated by this
Agreement shall occur as of the Effective Date. At the closing, BestCare and Arcadia
shall each deliver counterpart signature pages, as applicable, to this Agreement, the
Xxxx of Sale, the Assignment and Assumption Agreement, and the Promissory Note.
Further, on or before the Effective Date, BestCare shall have delivered to Arcadia a
consent of Lessor to assignment of the Leased Premises. |
| K. | Post-Closing Obligations. |
| 1. | Bad Debt Reserve. BestCare’s bad debt reserve
balance is $51,324 as of the Effective Date. Arcadia shall pay BestCare
$20,000 of this reserve in cash on April 8, 2011 and the remaining $31,324 with
the first interest payment on the Promissory Note. Any charges or write-offs
for bad debt on or after the Effective Date will not reduce the amounts paid to
BestCare. |
| 2. | Payment of Commissions. Within five (5) business days
after the Effective Date, Arcadia shall pay BestCare the amount of all
commissions owed to the members, employees or their designees, as applicable,
for services rendered prior to the Effective Date. In addition, a final
commission payment of $13,500 will be made on April 8, 2011. There will be no
reduction or adjustment to these commission payments for estimated commission
payments previously made. |
| 3. | Necessary Consents. Within xxxxxx (30) business days
after the Effective Date, BestCare shall deliver to Arcadia any necessary third
party consents including but not limited to the CCNB Security Interest, to
operate the business not delivered at the Effective Date. |
| L. | Arcadia’s Representations and Warranties. |
| 1. | Arcadia represents and warrants that its execution and
performance of this Agreement, and all agreements related hereto, have been
duly authorized by all necessary corporate action and constitute the binding
obligations of Arcadia fully enforceable in accordance with their terms. |
| 2. | Arcadia is a corporation duly organized and validly existing
under the Laws of the State of Nevada and is qualified and in good standing
under the laws of each jurisdiction where the ownership or operation of its
property or the conduct of its Business requires such qualification. |
| 3. | The representations and warranties of Arcadia shall survive the
closing of this Agreement. |
| M. | BestCare’s Representations and Warranties. |
| 1. | BestCare hereby represents and warrants to Arcadia that its
execution and performance of this Agreement, and all agreements related hereto,
have been duly authorized by all necessary limited liability company action and
constitute the binding obligations of BestCare fully enforceable against it in
accordance with their terms. |
| 2. | BestCare is a limited liability company duly organized and
validly existing under the laws of the Commonwealth of Kentucky and is
qualified and in good standing under the laws of each jurisdiction where the
ownership or operation of its property or the conduct of the Business requires
such qualification. |
| 3. | On the Effective Date, BestCare will have and Arcadia shall
receive good title to, or as the case may be, a valid leasehold interest in,
all of the Assets free and clear of any mortgage, security interest, pledge,
lien or encumbrance (except for the CCNB Security Interest). Except as set
forth on Exhibit A-2, BestCare owns or leases all real estate, improvements,
facilities, machinery, equipment, fixtures and vehicles, which are reasonably
required to operate the Business as presently conducted. The Assets are in
good operating condition and repair, are used and useful in the Business as
presently conducted, and are in conformity with all applicable laws,
ordinances, orders, and regulations. |
| 4. | The representations and warranties of BestCare shall survive
the closing of this Agreement. |
| N. | Indemnification and Releases. |
| 1. | Indemnification by BestCare. BestCare agrees to
indemnify, defend, and hold Arcadia harmless from and against any and all
demands, claims, actions, or causes of action, assessments, losses,
settlements, penalties, forfeitures, expenses, damages and liabilities,
including reasonable attorneys fees and court costs (collectively, an
“Indemnity Loss”) asserted against, suffered, incurred, sustained or
required to be paid by Arcadia arising out of, relating to, or as a direct or
proximate result of: (a) any liability of BestCare or any of its members that
is not an Assumed Liability; (b) any misrepresentation in or breach of any
representation or warranty of BestCare contained in this Agreement; (c) any
|
breach or failure of BestCare to perform any of its respective covenants or
obligations contained in this Agreement or any related agreement, exhibit,
schedule, certificate or other instrument or document furnished or required
to be furnished by BestCare pursuant to this Agreement or in connection with
the transactions contemplated by this Agreement; and (d) without limiting
the generality of the foregoing, the failure of BestCare to withhold,
collect, pay or remit any sales or use tax or payroll or employment tax
imposed by any state or local taxing authority in connection with the sale
of any product or good or the payment of any wages or compensation or the
employment of any persons by BestCare on or before the Effective Date. The
provisions of subparagraph (d) do not apply with respect to sales or use
taxes for services invoiced by Arcadia or payroll or employment taxes for
field staff paid by Arcadia. |
| 2. | Indemnification by Arcadia. Arcadia agrees to
indemnify, defend, and hold BestCare harmless from and against any and all
Indemnity Loss asserted against, suffered, incurred, sustained or required to
be paid by BestCare arising out of, relating to, or as a direct or proximate
result of: (a) any misrepresentation in or breach of any representation or
warranty of Arcadia contained in this Agreement; (b) any breach or failure of
Arcadia to perform any covenant or obligation of Arcadia contained in this
Agreement, or any related agreement, exhibit, schedule, certificate or other
instrument or document furnished or required to be furnished by Arcadia
pursuant to this Agreement or in connection with the transaction contemplated
by this Agreement; (c) the Assumed Liabilities; or (d) Arcadia’s assumption of
the Lease on the Leased Premises. |
| 3. | Release by Arcadia. Except as provided in Sections H
and N.1 above, Arcadia, for itself and its directors, officers, subsidiaries
and affiliates, hereby releases and forever discharges BestCare, and its
members, owners, directors and officers, from any claims, causes of action,
liabilities, damages or losses, known or unknown, contingent or otherwise,
arising out of or related in any way to BestCare’s position as an Affiliate of
Arcadia, including without limitation, under the Representative Agreement and
the services provided by BestCare thereunder. |
| 4. | Release by BestCare. Except as provided in Sections H
and N.2 above, BestCare, for itself and its members, owners, directors and
officers, hereby release and forever discharge Arcadia, and its directors,
officers, subsidiaries and affiliates, from any claims, causes of action,
liabilities, damages or losses, known or unknown, contingent or otherwise,
arising out of or related in any way to the Representative Agreement.
Notwithstanding the foregoing, in the event the Note is not paid in full in
accordance with its stated terms, this release shall no longer be in effect. |
| O. | Expenses. Each of the parties shall bear all expenses and costs
incurred by he, she or it in connection with this Agreement and the transactions
contemplated herein, including, without limitation, the fees and disbursements of any
legal counsel, accountants or any other person whose services have been used by such
party. |
| P. | Assignment. This Agreement and/or any rights or obligations hereunder
shall not be assigned by any party without the specific prior written consent of the
other party. Provided however, in its sole and absolute discretion, Arcadia may
transfer this Agreement to one or more of its direct or indirect subsidiaries. |
| Q. | Non-Waiver; Severability. No consent or waiver, express or implied, by
any party to any breach or default by any other party in the performance of obligations
hereunder shall be deemed or construed to be a consent or waiver to any other breach or
default in the performance of other obligations of such other party. Failure on the
part of any party to declare another party in default, irrespective of how long such
failure continues, shall not constitute consent or waiver of the rights of such party.
Any item or provision found to be in violation of the law shall be severed from this
Agreement and shall be deemed to be null and void and shall not affect the validity of
any other term or provision of this Agreement. |
| R. | Counterparts. This Agreement may be executed and delivered in
counterparts, each of which, when so executed and delivered, shall constitute an
original, but such counterparts shall constitute one and the same instrument.
Signatures delivered by email or facsimile shall be binding to the same extent as an
original. |
| S. | Governing Law. This Agreement shall be subject to and governed by the
laws of the State of Indiana. The parties consent to the exclusive jurisdiction in the
courts of Xxxxxx County, Indiana for all disputes arising under this Agreement. |
| T. | Entire Agreement. Together with the provisions of the Representative
Agreement specified herein and the exhibits attached hereto, this Agreement constitutes
the entire agreement between the parties hereto with respect to the subject matter
contained herein and supersedes all prior agreements and understandings of the parties
with respect to the transactions contemplated by this Agreement, provided that,
for the avoidance of doubt, nothing in this Agreement shall alter, terminate, impair or
otherwise affect the rights, duties and obligations of each of the parties under the
Representative Agreement that survive the termination of the Representative Agreement
pursuant to the terms thereof. |
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| “ARCADIA” ARCADIA RESOURCES, INC. |
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| By: | /s/ Xxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: | Chief Executive Officer & President | |||
| “BESTCARE” BESTCARE TRAVEL STAFFING, LLC |
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| By: | Xxxxx X. Xxxxxx | |||
| Printed: Xxxxx X. Xxxxxx | ||||
| Title: | President | |||
| “XXXXXX” |
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| Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx, who joins in the execution of this Agreement solely for purposes of Paragraph H of this Agreement | ||||
