Exhibit 10.4
ASSET PURCHASE AGREEMENT
between
ABC MEDICAL SUPPLY, INC.
("Seller")
and
XXXXXXX XXXXXX
and
XXXXXX XXXXXXXX
and
LIFE CRITICAL CARE CORPORATION
("Purchaser")
March 1, 1996
TABLE OF CONTENTS
Page
RECITALS.................................................................... 1
ARTICLE 1. PURCHASE AND SALE OF ASSETS...................................... 1
SECTION 1.1 Closing Date..................................... 1
SECTION 1.2 Purchase and Sale of Assets...................... 1
SECTION 1.3 Excluded Assets.................................. 2
SECTION 1.4 Purchase Price................................... 2
SECTION 1.5 Payment of Purchase Price........................ 2
SECTION 1.6 Debts, Liabilities and Other Obligations
Assumed by Purchaser......................... 3
SECTION 1.7 Allocation of Purchase Price..................... 4
SECTION 1.8 Change and Use of Name........................... 4
SECTION 1.9 Accounts Receivable.............................. 4
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF SELLER,
XXXXXX AND XXXXXXXX............................... 4
SECTION 2.1 Organization and Qualification, Etc............... 4
SECTION 2.2 Authority Relative to Agreement................... 4
SECTION 2.3 No Breach; Consents............................... 5
SECTION 2.4 No Material Adverse Change........................ 5
SECTION 2.5 Title to Purchased Assets......................... 5
SECTION 2.6 Tax Matters....................................... 6
SECTION 2.7 Contracts and Commitments......................... 6
SECTION 2.8 Litigation, Etc................................... 7
SECTION 2.9 Brokerage......................................... 8
SECTION 2.10 Insurance......................................... 8
SECTION 2.11 Compliance with Laws.............................. 8
SECTION 2.12 Employees......................................... 8
SECTION 2.13 Licenses and Permits.............................. 8
SECTION 2.14 Business Records.................................. 8
SECTION 2.15 Environmental Matters............................. 9
SECTION 2.16 Financial Statements.............................. 9
SECTION 2.17 Material Misstatements or Omissions............... 9
SECTION 2.18 Effective Date of Warranties, Representations
and Covenants.............................. 9
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER ..................... 10
SECTION 3.1 Organization, Etc................................ 10
SECTION 3.2 Authority Relative to Agreement ................. 10
SECTION 3.3 No Breach; Consents.............................. 10
SECTION 3.4 Litigation....................................... 11
SECTION 3.5 Brokerage........................................ 11
ARTICLE 4. CLOSING CONDITIONS .............................................. 11
SECTION 4.1 Closing Conditions Relating to Purchaser......... 11
SECTION 4.2 Closing Conditions Relating to Seller............ 13
ARTICLE 5. PRE-CLOSING AGREEMENTS .......................................... 13
SECTION 5.1 Due Diligence.................................... 13
SECTION 5.2 Operation of Business............................ 13
SECTION 5.3 Best Efforts..................................... 14
SECTION 5.4 Confidentiality.................................. 14
SECTION 5.5 Public Announcements............................. 14
ARTICLE 6. POST-CLOSING AGREEMENTS ......................................... 15
SECTION 6.1 Indemnification and Limitation of Seller's,
Xxxxxx'x and Xxxxxxxx' Liability................ 15
SECTION 6.2 Further Assurances............................... 17
SECTION 6.3 Books and Records................................ 17
SECTION 6.4 Employees ....................................... 18
ARTICLE 7. MISCELLANEOUS ................................................... 18
SECTION 7.1 Survival ........................................ 18
SECTION 7.2 Termination ..................................... 18
SECTION 7.3 Expenses ........................................ 19
SECTION 7.4 Amendments, Waivers and Remedies................. 19
SECTION 7.5 Notices ......................................... 20
SECTION 7.6 Assignment ...................................... 21
SECTION 7.7 Severability .................................... 21
SECTION 7.8 Complete Agreement .............................. 21
SECTION 7.9 No Third-Party Beneficiaries .................... 21
SECTION 7.10 Waiver of Bulk Sales Act ........................ 21
SECTION 7.11 Singular and Plural; Gender ..................... 21
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SECTION 7.12 Governing Law ................................... 21
SECTION 7.13 Counterparts .................................... 21
SECTION 7.14 Schedules........................................ 22
SECTION 7.15 Headings......................................... 22
SECTION 7.16 Further Documents................................ 22
SECTION 7.17 Arbitration...................................... 22
EXHIBITS AND SCHEDULES
Exhibit 1.2 Xxxx of Sale and Assignment of Assets
Schedule A to Xxxx of Sale and Assignment of Assets
Schedule 1.3 Excluded Assets
Schedule 1.6 Liabilities Assumed
Schedule 1.6.1 Liabilities Not Assumed
Schedule 1.7 Allocation of Purchase Price
Schedule 2.7 Contracts and Commitments
Schedule 2.10 Insurance
Schedule 2.13 Licenses and Permits
Exhibit 4.1.1.2 Assignments of Leases
Exhibit 4.1.1.3 Covenant Not to Compete
Exhibit 4.1.1.6 Opinion of Counsel for Seller
Exhibit 4.1.1.7 Articles of Transfer
Exhibit 4.2.1.3 Assignment and Assumption Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 1st day of March, 1996 by and between ABC MEDICAL SUPPLY, INC., a
Michigan corporation ("Seller"); and LIFE CRITICAL CARE CORPORATION, a Delaware
corporation ("Purchaser"); and XXXXXXX XXXXXX, a Michigan resident ("Xxxxxx")
and XXXXXX XXXXXXXX, a Michigan resident ("Xxxxxxxx").
W I T N E S S E T H
WHEREAS, Seller is engaged in the business of operating a home medical
equipment business at facilities located in West Branch, Michigan and other
locations in Michigan (the "Business");
WHEREAS, Purchaser desires to purchase, and Seller desires to sell,
substantially all of the assets and properties of Seller, including the goodwill
and all assets used in or necessary for the operation of the Business, but
excluding the assets of Wound K-Air Management ("Wound K-Air") and as otherwise
set forth in Schedule 1.3, on the terms and conditions set forth in this
Agreement; and
WHEREAS, Xxxxxx and Xxxxxxxx (collectively, the "Stockholders") are the
sole Stockholders of Seller and will materially benefit from the consummation of
this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the promises,
agreements, representations and warranties hereinafter set forth, Seller and
Purchaser hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
SECTION 1.1. Closing Date. Subject to the terms and conditions hereof,
the consummation of the transactions described herein (the "Closing") will take
place at 10:00 a.m., on or prior to May 30, 1996, at the offices of Xxxxxxx and
XxxXxxx, 000 Xxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, or at such other
location reasonably selected by Purchaser upon advance notice to Seller, or at
such other time and date as the parties mutually may determine (the "Closing
Date").
SECTION 1.2. Purchase and Sale of Assets. Subject to Section 1.3, at
the Closing, Seller will sell, convey, transfer and deliver to Purchaser, and
Purchaser will purchase and receive from Seller, all of the assets, rights, and
tangible and intangible property of Seller
owned by Seller and used in the Business on the Closing Date, excluding the
assets of Wound K-Air and the other assets referenced in Schedule 1.3 (all of
the assets described in this Section 1.2 are collectively referred to as the
"Purchased Assets"). Subject to Section 1.3, the Purchased Assets shall
include all property and assets owned by Seller and used in the Business, of
every kind and description, wherever located, including all property,
tangible or intangible, real, personal or mixed, inventory, accounts
receivable, equipment, improvements, fixtures, deposits on contractual
obligations or otherwise, Seller's right to use the name "ABC Medical
Supply" and any derivatives or combinations thereof, and all books and records
of Seller relating to the Business, including without limitation trade secret
rights in any information, computer hardware and software, and all trade
titles, marketing materials and direct mail systems developed to promote the
Business, and all customer lists (past, present and prospective), all as the
same shall exist on the Closing Date, including, without limitation, the assets
and property listed or described in the Xxxx of Sale and Assignment of Assets
(the "Xxxx of Sale") attached hereto as Exhibit 1.2.
SECTION 1.3. Excluded Assets. The Purchased Assets shall not include
those assets of Seller, if any, listed or described on Schedule 1.3 attached
hereto.
SECTION 1.4. Purchase Price. Subject to the provisions and adjustments
set forth in Section 1.5 hereof, the purchase price (the "Purchase Price") for
the Purchased Assets, and for the benefits and rights conferred upon Purchaser
hereunder, shall be an amount equal to Four Million Five Hundred Thousand
Dollars ($4,500,000).
SECTION 1.5. Payment of Purchase Price. The Purchase Price
described in Section 1.4 shall be paid as follows:
(i) Fifty Thousand Dollars ($50,000) has previously been paid
to Seller to be held pending Closing or termination of this Agreement in
accordance with the terms of this Agreement (the "Initial Deposit");
(ii) If the Closing shall not have been completed on or before
the scheduled Closing Date, the Purchaser shall be entitled to extend the
Closing Date for one (1) sixty (60)-day extension of the Closing Date upon the
payment of an additional Sixty-Seven Thousand Dollars ($67,000) for such
extension, payable on or prior to the original Closing Date (the "Additional
Deposit") (the Initial Deposit and the Additional Deposit are collectively
referred to herein as the "Deposits"), which Deposits shall be applied to the
Purchase Price at Closing. Subject to the provisions of Article 7 hereof, the
Deposits are nonrefundable, having been paid, or to be paid, as the case may be,
to Seller by Purchaser in consideration of Seller taking Seller off the market
and dealing and negotiating exclusively with Purchaser regarding the sale of
Seller through the earlier of the Closing Date or the termination of this
Agreement, and
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shall be retained by Seller and shall serve as liquidated damages in the event
the Closing does not occur for reasons other than those set forth in Sections
7.2.3 or 7.2.4 hereof.
(iii) The balance of the Purchase Price shall be paid
in cash by wire transfer of immediately available funds to such bank
account as shall be designated by Seller or, at Seller's option, by delivery
of a cashier's check to Seller at Closing; and
(iv) In addition to the payment of the Purchase Price,
Purchaser shall assume and agree to pay certain debt and trade payables of
Seller at Closing as set forth in Section 1.6 hereof;
(v) The Purchase Price is conditioned upon the book value of
the Purchased Assets being at least equal to $650,000 as of the Closing Date
(the "Target Book Value"). To the extent the book value of the Purchased Assets
on Seller's books is less than the Target Book Value on the Closing Date, the
Purchase Price shall be reduced by One Dollar ($1.00) for each One Dollar
($1.00) that the actual book value is less than the Target Book Value; provided,
however, that the book value shall be estimated in good faith by Seller and
Purchaser on the Closing Date and any adjustments thereto following an audit by
Purchaser's accountants shall be adjusted by payments, within ninety (90) days
after Closing, to Seller by Purchaser or by payments by Purchaser to Seller, as
appropriate; and
(vi) Following the Closing, Purchaser agrees to reimburse to
Seller promptly any amounts of account receivables paid into the Seller's
lock-box (which will be assigned to Purchaser at Closing) on account of
verifiable invoices issued by or on behalf of Wound K-Air.
SECTION 1.6. Debts, Liabilities and Other Obligations Assumed by
Purchaser. Purchaser shall assume all liabilities relating to the Purchased
Assets or the operation of the Business arising on or after the Closing Date.
Purchaser shall also assume all those debts, obligations, contracts, leases or
liabilities of Seller which are, as at Closing, shown or included in SCHEDULE
1.6 attached hereto (with revisions therein to reflect changes in the ordinary
course of business between the effective date of this Agreement and the Closing
Date) and all debt of Seller shown or included in Seller's books and records of
account of the Business as ordinary and customary accounts payable, accrued
payroll taxes not yet due to be paid, and all miscellaneous other debts and
liabilities of the type historically shown on Seller's books, to the extent any
such items are used to compute Target Book Value, except Purchaser shall not
assume those contracts, debts or liabilities of Seller shown on SCHEDULE 1.6.1
of this Agreement. The foregoing debts, liabilities and other obligations,
specifically excluding those which are shown on SCHEDULE 1.6.1, are hereinafter
referred to as the "Assumed Obligations." Seller shall hold Purchaser harmless
from, and indemnify Purchaser against, any debt, obligation, contract, lease or
liability of
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Seller which is shown on SCHEDULE 1.6.1; and Purchaser shall hold Seller
harmless from, and indemnify and defend Seller against, all the debts,
obligations, contracts, leases or liabilities required to be assumed by
Purchaser pursuant to this Agreement.
SECTION 1.7. Allocation of Purchase Price. After due negotiation, the
parties agree that the consideration described in Section 1.4 shall be allocated
among the Purchased Assets in the manner set forth in SCHEDULE 1.7.
SECTION 1.8. Change and Use of Name. Concurrently with the Closing,
Seller shall take all actions required by the Michigan Corporation and
Securities Bureau to enable Purchaser to receive permission from such
governmental agency to use the name "ABC Medical Supply" in Michigan, and Seller
shall make no further use of such name.
SECTION 1.9. Accounts Receivable. A list of Accounts Receivable (i.e.,
any right to payment for goods sold or leased or for services rendered whether
or not they have been earned by performance) of Seller which shall include the
names and addresses of the customer from whom the Account Receivable is owing
and the age and respective amount of each such Account Receivable shall be
provided by Seller to Purchaser at Closing (the "Accounts Receivable List") and
such Accounts Receivable shall be assigned by Seller to Purchaser at Closing as
part of the Purchased Assets.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF
SELLER, XXXXXX AND XXXXXXXX
As a material inducement to Purchaser to enter into and perform its
obligations under this Agreement, Seller, Xxxxxx and Xxxxxxxx hereby, jointly
and severally, represent and warrant to Purchaser as follows:
SECTION 2.1. Organization and Qualification, Etc. Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Michigan, and has the corporate power to own, lease or
operate all of its properties and assets and to carry on the Business as and
where it is now being conducted. Copies of Seller's Articles of Incorporation
and By-Laws, previously delivered to Purchaser and certified by the Secretary of
Seller, are true, correct and complete copies of such documents and will not be
amended prior to the Closing Date without the prior written consent of
Purchaser.
SECTION 2.2. Authority Relative to Agreement. The Seller has the
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by the Seller and the consummation of the transactions
contemplated on its part have been
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authorized by its Board of Directors and stockholders. No other corporate
proceedings on the part of the Seller are necessary to authorize the
execution and delivery of this Agreement by it or the consummation by it of the
transactions contemplated on its part hereby. This Agreement has been duly
executed and delivered by each of Seller, Xxxxxx and Xxxxxxxx and is a valid
and binding agreement of Seller, Xxxxxx and Xxxxxxxx, enforceable in
accordance with its terms, except as the enforceability may be affected by
bankruptcy, insolvency, reorganization or other similar laws presently or
hereafter in effect affecting the enforcement of creditors' rights generally.
SECTION 2.3. No Breach; Consents. The negotiation, execution, delivery
and performance of this Agreement by Seller, and the consummation of the
transactions contemplated hereby, (a) do not and will not conflict with or
result in any breach of any of the provisions of, constitute a default under,
result in a violation of, result in the creation of any lien, security interest,
charge, encumbrance or other restriction upon the Purchased Assets under, or
except as otherwise disclosed to Purchaser in the schedules and documents
attached hereto, or as otherwise excepted in this Agreement, do not and will not
require any authorization, consent, approval, exemption or other action by or
notice to any third party, under the provisions of the Articles of Incorporation
or By-Laws of Seller or any license, permit, contract, franchise, indenture,
mortgage, lease, loan agreement or other agreement (oral or written) or
instrument to which Seller is a party or under which its properties are bound,
and (b) except as otherwise disclosed to Purchaser as aforesaid, to the best
knowledge of Seller, do not require any authorization, consent, approval,
exemption or other action by or notice to any court or governmental body under
any law, statute, rule, regulation or decree to which Seller is subject.
SECTION 2.4. No Material Adverse Change. Since September 30, 1995,
there has been no material adverse change in the financial condition,
properties, assets, business or prospects of Seller, including the Purchased
Assets, except as may have been disclosed by Seller to Purchaser in writing
prior to Closing.
SECTION 2.5. Title to Purchased Assets.
2.5.1. Seller owns, or will at Closing own, good and
marketable title, free and clear of all liens and encumbrances (except for the
Assumed Obligations) to all of the Purchased Assets, and on the Closing Date and
upon conveyance, assignment and delivery to Purchaser as provided herein,
Purchaser shall have (subject to compliance with applicable registration, filing
and recording requirements) good and marketable title, or valid, binding and
enforceable rights as contracting party or licensee, as the case may be, to all
the Purchased Assets, except software licenses or, without implied limitation,
other agreements or licenses which, by their express terms, are not
transferable.
2.5.2. To the best of Seller's knowledge, Seller is not in
violation of any applicable zoning ordinance or other law, regulation or
requirement relating to the
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operation of owned or leased properties and Seller has not received any notice
of any such violations within the three years prior to the date hereof.
2.5.3. Seller leases, licenses or owns all of the material
properties and assets used in the Business.
SECTION 2.6. Tax Matters. All tax returns and related information
required to be filed by or on behalf of Seller prior to the date hereof have
been prepared and filed in accordance with applicable law, and all taxes,
interest, penalties, assessments or deficiencies that have become due pursuant
to such returns or any assessments or otherwise have been paid in full. All such
returns are true and correct in all material respects. To the best of Seller's
knowledge, there is no unresolved claim concerning Seller's federal, state and
local tax liabilities.
SECTION 2.7. Contracts and Commitments.
2.7.1. Attached hereto as Schedule 2.7 is a separate
schedule containing an accurate and complete list of:
(i) any contract, agreement, purchase order or other
commitment for the purchase, sale or provision to or by Seller of
goods, property or services having an individual value in excess of
$5,000 or an aggregate value in excess of $50,000;
(ii) any pension, profit sharing, stock option, employee stock
purchase or other plan providing for deferred compensation or other
employee benefit plan, or any contract with any labor union;
(iii) any agreement or indenture relating to the borrowing of
money or to the mortgaging, pledging or otherwise placing a lien on any
material asset or material group of assets of Seller;
(iv) any lease or agreement under which it is lessee of or
holds or operates any property, real or personal, owned by any other
party, except for any lease of personal property under which the
aggregate annual rental payments do not exceed $1,000;
(v) any lease or agreement under which it is lessor of or
permits any third party to hold or operate any property, real or
personal, owned or controlled by it having an individual value in
excess of $1,000;
(vi) all agreements providing for the services of an
independent contractor to which Seller is a party or by which it is
bound;
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(vii) as of a date no earlier than September 30, 1995, all of
Seller's Accounts Receivables, together with detailed information as to
each such listed receivable which has been outstanding more than thirty
(30) days;
(viii) any and all other or additional contracts, commitments,
agreements, arrangements, writings, guarantees, leases and licenses to
which Seller is a party or by which Seller or any of its property is
bound having an individual value in excess of $5,000 or an aggregate
value in excess of $50,000.
Each of the contracts, agreements, leases, licenses and commitments
required to be listed on SCHEDULE 2.7 (the "Contracts") is valid and binding,
enforceable in accordance with its respective terms, in full force and effect
and, except as otherwise specified in SCHEDULE 2.7, validly assignable to
Purchaser without the consent, approval or act of, or the making of any filing
with, any other person so that, after the assignment thereof to Purchaser
pursuant hereto, Purchaser will be entitled to the full benefits thereof. True
and complete copies of all of the Contracts (together with any and all
amendments thereto) have been delivered to Purchaser and identified with a
reference to this Section of this Agreement. To the best of its knowledge,
Seller has performed all obligations required to be performed by it and is not
in default under or is in breach of or in receipt of any claim of default or
breach under any of the Contracts and no event has occurred which with the
passage of time or the giving of notice or both would result in a default,
breach or event of noncompliance under any such Contract; and Seller has no
knowledge of any breach or anticipated breach by the other parties to any such
Contract; and, to the best of its knowledge, Seller is not a party to any
Contract for the purchase of goods or services at a rate currently above market
prices.
2.7.2. (i) Seller has performed in all material respects all
obligations required to be performed by it and is not in default under or in
breach of nor in receipt of any claim of default or breach under any agreement
referred to in Section 2.7.1, (ii) to the best knowledge of Seller, no event has
occurred which with the passage of time or the giving of notice or both would
result in a default, breach or event of noncompliance under any such agreement,
and (iii) Seller does not have any knowledge of any breach or anticipated breach
by any other party to such agreements.
2.7.3. Purchaser has been heretofore supplied with a true
and correct copy of each of the written contracts which are referred to in
Section 2.7.1, together with all amendments, waivers or other changes thereto.
SECTION 2.8. Litigation, Etc. Except as shown in SCHEDULE 1.6, there
are no actions, suits, proceedings, orders, investigations or claims pending, or
to the best of Seller's knowledge, threatened, against Seller, or to which
Seller is a party, at law or in
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equity, before or by any court, tribunal, governmental department,
commission, board, bureau, agency or instrumentality, or any arbitration
proceedings pending under collective bargaining agreements or otherwise. To the
best of Seller's knowledge, except for pending legislation regarding
medicare and medicaid reimbursement that might affect the Business generally,
there is no proposed law, rule, regulation, ordinance, order, judgment,
decree or award that would be applicable to Seller that would reasonably
be expected to have a material adverse effect on the condition (financial
or otherwise), business, assets, liabilities, capitalization, financial
position, results of operations or prospects of Seller.
SECTION 2.9. Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement (oral or
written) binding upon Seller or any stockholder of Seller except the business
brokerage agreement between Telesis and Seller, as to which Seller shall
indemnify and save Purchaser harmless.
SECTION 2.10. Insurance. SCHEDULE 2.10 contains an abstract or summary
of each outstanding insurance policy maintained by Seller. Seller has given to
Purchaser a copy of each such insurance policy maintained with respect to
Seller's properties, assets and the Business, and each such policy is in full
force and effect. Purchaser, at its election at Closing and subject to the
consent of the applicable insurance underwriter, which consent, if required,
Seller agrees to use its commercially reasonable efforts to obtain on behalf of
Purchaser, shall be entitled to assume any and all outstanding insurance upon
payment to Seller of a prorated amount of the premium for such insurance for the
remaining term thereof.
SECTION 2.11. Compliance with Laws. To the best of Seller's knowledge,
Seller has complied with all laws, rules, regulations, ordinances, orders,
judgments, and decrees applicable to its business or properties, and to its best
knowledge is not in violation of any law or any regulation or requirement which
might have a material adverse effect upon its financial condition, operating
results or business prospects, and Seller has not received notice of any such
violation.
SECTION 2.12. Employees. To the best of Seller's knowledge, Seller has
complied with all laws relating to the employment of labor, including provisions
thereof relating to wages, hours, equal opportunity, collective bargaining and
the payment of social security and other taxes.
SECTION 2.13. Licenses and Permits. All material permits, licenses and
franchises held by Seller, or by its officers, employees or agents, with respect
to the Business are listed on SCHEDULE 2.13. Except as set forth on SCHEDULE
2.13, to the best of Seller's knowledge, such licenses, permits and franchises
are freely transferable by Seller.
SECTION 2.14. Business Records. Seller's personnel files, accounting
records, financial statements, operating statements and customer correspondence
files shall be made available to Purchaser promptly upon the execution of this
Agreement and are
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substantially complete and correct in all material respects, and reflect
Seller's business operations for a period of not less than three (3) years.
SECTION 2.15. Environmental Matters. To the best of Seller's knowledge,
there is no condition, circumstance, or set of facts (including without
limitation the presence, either past or present, of any underground storage
tanks) that constitutes a significant hazard to health, safety, property, or the
environment relating to the Business or any real property owned or leased by
Seller for which the Business, Seller or the owner or operator of such real
property would be responsible.
SECTION 2.16. Financial Statements. Seller's financial statements and
notes thereto as at and for the fiscal year ended December 31, 1994, and for the
ten months ended October 31, 1995, consisting of balance sheets and statements
of income and cash flow, are to be audited by the certified public accounting
firm of Ernst & Young LLP, independent certified public accountants, on or
before December 31, 1995. All such financial statements, copies of which will,
upon completion, be attached hereto as EXHIBIT 2.16 (the "Statements"), will
fairly present the financial condition and results of the operations of Seller
as at the date indicated and for the period indicated, will have been prepared
in accordance with generally accepted accounting principles consistently
applied, and will be in accordance with the books and records of Seller. Time is
of the essence in completing the audit and both Seller and Purchaser agree to
cooperate fully to expedite the audit process. Seller shall provide Purchaser
with monthly financial statements for the periods following September 30, 1995,
as they become available. Purchaser shall pay the auditors for the preparation
of the Statements provided that Purchaser shall have the right to select the
auditors and further provided that Seller pays its accountants to prepare the
books and records for audit.
SECTION 2.17. Material Misstatements or Omissions. Seller (for purposes
of this Section 2.17 and for purposes of this Article 2 whenever the knowledge
of Seller is used, the knowledge of "Seller" shall mean the actual knowledge
after reasonable diligence of Xxxxxx and Xxxxxxxx) has not knowingly made any
material misstatements of fact or omitted to state any material fact necessary
or desirable to make complete, accurate, and not misleading every
representation, warranty, schedule, and agreement set forth, described or
referred to herein.
SECTION 2.18. Effective Date of Warranties, Representations and
Covenants. Each warranty, representation, and covenant set forth in this Article
2 shall be deemed to be made on and as of and speak on and as of the date hereof
and as of the Closing Date (except as otherwise specifically provided herein).
Prior to the Closing Date, Seller will notify Purchaser of any change since the
date hereof in any fact, condition or circumstance of which it becomes aware and
which would require a modification of the foregoing representations and
warranties (including any schedule thereto) to make such representation or
warranty (or schedule thereto) complete, accurate and not misleading in all
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respects. The representations and warranties contained in this Article 2 shall
not be affected or deemed waived by reason of the fact that Purchaser and/or its
representatives knew or should have known that any such representation or
warranty is or might be inaccurate in any respect.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
As a material inducement to Seller to enter into and perform its
obligations under this Agreement, Purchaser represents and warrants to Seller as
follows:
SECTION 3.1. Organization, Etc. Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware.
SECTION 3.2. Authority Relative to Agreement. Purchaser has the
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated on its part hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by the Board of Directors of Purchaser. No
other corporate proceedings on its part or the part of the stockholders of
Purchaser are necessary to authorize the execution and delivery of this
Agreement by it or the consummation by it of the transactions contemplated on
its part hereby. This Agreement has been duly executed and delivered by
Purchaser and is the valid and binding agreement of Purchaser except as the
enforceability may be affected by bankruptcy, insolvency, reorganization or
other similar laws presently or hereafter in effect affecting the enforcement of
creditors' rights generally.
SECTION 3.3. No Breach; Consents. The execution, delivery and
performance of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby (a) do not and will not conflict with or result
in any breach of any of the provisions of, constitute a default under, result in
a violation of, result in the creation of any lien, security interest, charge or
encumbrance upon the assets of either of Purchaser under, or require any
authorization, consent, approval, exemption or other action by or notice to any
third party under the provisions of the Charter or By-Laws of Purchaser or any
license, indenture, mortgage, lease, loan agreement or other agreement (oral or
written) or instrument to which Purchaser is a party, and (b) do not require any
authorization, consent, approval, exemption or other action by or notice to any
court or governmental body under any law, statute, rule, regulation or decree to
which Purchaser is subject.
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SECTION 3.4. Litigation. There is no claim, action, suit or proceeding
pending or, to the best of Purchaser's knowledge, threatened against Purchaser
or any of its properties which seeks to prohibit, restrict or delay consummation
of the transactions contemplated hereby or to limit in any manner the right of
Purchaser to control Seller or any material aspect of the Business of Seller
after the Closing Date, and there is no judgment, decree, injunction, ruling or
order of any court, governmental department, commission, agency or
instrumentality or arbitrator outstanding against Purchaser having, or which
Purchaser believes may in the future have, any such effect.
SECTION 3.5. Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by or
on behalf of Purchaser.
ARTICLE 4
CLOSING CONDITIONS
SECTION 4.1. Closing Conditions Relating to Purchaser. The obligation
of Purchaser to consummate the purchase of the Purchased Assets will be subject
to the satisfaction of the following conditions, any of which may be waived by
Purchaser in its sole and absolute discretion:
4.1.0 Contingencies.
4.1.0.1. Purchaser intends to register
certain of its securities under the Securities Act of 1933, as amended (the
"Securities Act") as part of an initial public offering of its securities (the
"IPO"). Accordingly, Purchaser agrees to use its reasonable best efforts to do
as follows:
(a) Prepare and file with such amendments and
supplements to the registration statement and the prospectus used in
connection therewith as may be necessary to keep said registration statement
effective and to comply with the provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Securities Act, with respect to
the sale of securities covered by said registration statement for the period
necessary to complete the proposed public offering;
(b) Enter into an underwriting agreement with
customary provisions reasonably required by the underwriter, if any, of the
offering; and
(c) Register its securities covered by said
registration statement under the securities or "blue sky" laws of appropriate
jurisdictions.
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It shall be a condition precedent to
Purchaser's obligation to close hereunder that the IPO shall have been
completed on terms and conditions reasonably satisfactory to Purchaser;
provided, however, that this condition precedent may be waived by Purchaser
in its sole and absolute discretion in which event it may close and pay the
Purchase Price all in cash.
4.1.1. Deliveries. At or prior to the Closing, Seller
shall deliver, or cause to be delivered to Purchaser, the following items,
fully executed by all appropriate parties and in form and substance acceptable
to Purchaser:
4.1.1.1. Xxxx of Sale. A Xxxx of Sale in the form
of EXHIBIT 1.2 attached hereto together with any and all other evidences
of conveyance reasonably requested by Purchaser to obtain clear title to the
Purchased Assets.
4.1.1.2. Assignments of Leases. Assignments of Leases
in the form of EXHIBIT 4.1.1.2.
4.1.1.3. Covenants Not to Compete. Covenants Not
to Compete in the form of EXHIBIT 4.1.1.3 attached hereto executed by each of
the stockholders of Seller.
4.1.1.4. Corporate Resolutions. Seller shall deliver
to Purchaser certified copies of the resolutions of its Board of Directors
and certified copies of the resolutions of its stockholder(s) authorizing
the transactions contemplated herein.
4.1.1.5. Consents. Seller shall deliver to
Purchaser copies of all necessary third party and governmental consents, in
a form satisfactory to Purchaser, that Seller is required to obtain in order to
consummate the transactions contemplated by this Agreement.
4.1.1.6. Opinion of Counsel for Seller. Purchaser
shall receive an opinion dated the Closing Date of Xxxxxxx and XxxXxxx of
Traverse City, Michigan, counsel for the Seller, in the form of EXHIBIT
4.1.1.6 attached hereto.
4.1.1.7. Articles of Transfer. Articles of
Transfer in the form of EXHIBIT 4.1.1.7 attached hereto.
4.1.2. Due Diligence Results. Nothing shall have come to
the attention of Purchaser, in the course of its due diligence investigation
pursuant to Section 5.1 or otherwise, which demonstrates that any of the
representations or warranties of Seller is inaccurate or incomplete in any
material manner.
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4.1.3. No Injunction. The consummation of the
transactions contemplated hereby shall not have been enjoined by any court of
competent jurisdiction and no proceeding seeking such an injunction shall be
pending.
SECTION 4.2. Closing Conditions Relating to Seller. The obligation
of Seller to consummate the sale of the Purchased Assets will be subject to
the satisfaction of the following conditions:
4.2.1. Deliveries. At or prior to the Closing, Purchaser
shall deliver, or cause to be delivered to Seller, the following items:
4.2.1.1. The Purchase Price;
4.2.1.2. Assignments of Leases in the form of EXHIBIT
4.2.1.2.; and
4.2.1.3. An Assignment and Assumption Agreement
in the form of EXHIBIT 4.2.1.3 attached hereto.
4.2.2. No Injunction. The consummation of the transactions
contemplated hereby shall not be enjoined by any court of competent
jurisdiction and no proceeding seeking such an injunction shall be pending.
ARTICLE 5
PRE-CLOSING AGREEMENTS
SECTION 5.1. Due Diligence. Seller shall grant to Purchaser, and its
employees, counsel, accountants and other representatives, full and complete
access to Seller, its facilities, management, employees and records and its
outside accountants and counsel for purposes of a due diligence investigation in
connection with the transactions contemplated hereby. Purchaser agrees to
exercise its reasonable best efforts in conducting such due diligence in a
manner that will not significantly interfere with or disrupt the normal
operations of Seller or arouse suspicions of Seller's employees, customers or
suppliers that either the capital stock or the assets of Seller are for sale.
Seller will provide Purchaser and its representatives full access to all
relevant financial information, personnel, service and contractual information.
The cost of any such due diligence shall be borne by Purchaser.
SECTION 5.2. Operation of Business. Seller shall continue to operate
the Business in the ordinary course in such manner that each and every warranty
and representation of Seller made herein as of the date hereof will be true,
complete and accurate in all respects as of the date of the Closing hereunder,
without substantial change, and will maintain or cause to be maintained all
existing insurance coverage on the Purchased Assets of Seller
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until the Closing. Until the Closing, all risk of loss, damage, or
destruction to the Purchased Assets shall be upon Seller, and in the event of
any substantial and material loss, damage, or destruction to the Purchased
Assets which is not replaced prior to Closing and which is likely to have a
materially adverse effect on the prospects of the Business, taken as a whole,
after Closing, Purchaser shall be entitled to terminate this Agreement within
thirty (30) days of learning of the same. Prior to Closing, Seller shall not
increase any current compensation levels of employees or pay any bonuses or
other direct or indirect compensation without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld or delayed and
provided that if no objection is raised by Purchaser within five (5) business
days after receiving written notice from Seller regarding any such
intention(s), Seller may proceed with the intentions stated in its written
notice. Seller agrees to provide to Purchaser monthly financial statements
for the periods following September 30, 1995, as they become available.
SECTION 5.3. Best Efforts. The parties hereto agree to use their best
efforts to cause all conditions to Closing to be satisfied and to cause the
transactions contemplated hereby to be consummated not later than May 30, 1996.
SECTION 5.4. Confidentiality. Purchaser and Seller agree that they, and
their respective officers, directors and other representatives, will hold in
strict confidence the negotiations relating to the transactions contemplated by
this Agreement, and all information exchanged pursuant thereto. If, for any
reason, Closing does not occur, all information exchanged by Purchaser and
Seller shall promptly be returned to the other party. The parties hereto
acknowledge and understand that Purchaser shall undertake the IPO described in
Section 4.1.0 hereof and shall be entitled to comply with all applicable
regulatory and disclosure requirements incident to such registration of
securities. In addition, Seller will refrain from, and will cause its officers,
directors, representatives, agents and employees to refrain from, directly or
indirectly, encouraging, soliciting, initiating or participating in discussions
or negotiations with or providing any non-public information to any person other
than Purchaser concerning the sale or purchase of the Business (except in the
ordinary course of its business), any merger or consolidation involving Seller
or any other transaction in which Seller's Business would be acquired by a
person other than Purchaser.
SECTION 5.5. Public Announcements. Neither Purchaser nor Seller shall
issue any press release or otherwise make any public statement with respect to
this Agreement or the transactions contemplated hereby unless such press release
or public statement is satisfactory to the other party to this Agreement, and
Purchaser and Seller shall consult with each other as to the form and substance
of any public disclosure related thereto; provided, however, that nothing
contained herein shall prohibit any party from making any disclosure which is
required by law but only after the other party has been given notice of and a
reasonable opportunity to contest any such disclosure allegedly required by law.
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ARTICLE 6
POST-CLOSING AGREEMENTS
SECTION 6.1. Indemnification and Limitation of Seller's, Xxxxxx'x and
Xxxxxxxx' Liability.
6.1.1. Indemnification. Within the limits of liability and the
terms and conditions set forth in Sections 6.1.2 and 6.1.6 below, the Seller
(and Xxxxxx and Xxxxxxxx, severally one-half as to each) (hereinafter the
"Indemnitors") hereby agree to indemnify, defend, guarantee and hold the
Purchaser, its successors and assigns and its stockholders, directors, officers,
affiliates, representatives and employees and the estates, personal
representatives and heirs of such persons, harmless from and against any and all
loss, liability, demands, claims, actions or causes of action, damages,
deficiency or expenses (including interest, penalties, costs of litigation and
reasonable attorneys' fees) (collectively, the "Losses") arising out of or due
to any incorrect representation or warranty of the Indemnitors contained in
Article 2 of this Agreement (subject to, where applicable, materiality standards
set forth in particular representations and warranties set forth in Article 2 of
this Agreement). The amount of any such loss shall be determined after giving
effect to any tax savings which might be realized by the Purchaser as a result
thereof, and shall be net of any insurance proceeds paid to or for the benefit
of the Purchaser.
6.1.2. Survival of Representations and Warranties; Limitation
on Liability and Time for Bringing Claims Hereunder. The Indemnitors have not
made any representation or warranty not set forth in Article 2 of this Agreement
(including any exhibits or schedules delivered by Seller to Purchaser as
required by the terms of such Article 2). All representations and warranties
shall survive the Closing; provided, however, the Indemnitors' liability
hereunder for the falsity of any such representation or warranty, or for breach
or default in the performance of any agreement or covenant entered into or made
hereunder (where such agreement or covenant is to be performed on or before the
Closing Date), shall be limited to liabilities of which the Indemnitor shall
receive notice in writing from the Purchaser, or its successors or assigns,
within two (2) years from the Closing Date. The Purchaser, its successors and
assigns, shall, as soon as practicable after obtaining knowledge thereof, notify
the Indemnitors of any such liability, asserted liability, breach of warranty,
agreement or covenant, untruth or inaccuracy of representation, or any claim
thereof, and in any event the Purchaser shall take no action or inaction which
would prejudice the defense thereof. If the amount claimed relates to a claim of
a third party and does not exceed the limits, if any, of the Indemnitors'
liability as hereinafter set forth, the Indemnitors or their legal
representatives shall have, at their election, the right to compromise or defend
any such matter through counsel of their own choosing, at the expense of the
Indemnitors, and the Purchaser, at its election, shall have
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the right to fully participate in any decision to compromise or defend any
such matter through counsel of its choosing at the expense of the Purchaser.
If the amount claimed relates to a claim of a third party, and when added to
all other liquidated or unliquidated indemnified claims, exceeds the limits, if
any, of the Indemnitors' liability as hereinafter set forth, the Purchaser or
its legal representatives shall have, at its election, the right to
compromise or defend any such matter through counsel of its own choosing, and
the Indemnitors', at their election, shall have the right to fully
participate in any decision to compromise or defend any such matter through
counsel of their choosing, at the expense of the Indemnitors. Such notice and
opportunity to compromise or defend, if applicable, shall be a condition
precedent to any liability of the Indemnitor. Each party agrees to cooperate
with the other and their counsel in the compromising of or the defending
against any such liabilities. With respect to tax matters, the selection of
the forum shall be by mutual agreement.
6.1.3. A party required under this Section 6.1 to furnish
indemnity (the "Indemnifying Party") shall satisfy its obligation of
indemnification under this Section 6.1 within forty-five (45) days after written
notice thereof from any party entitled to such indemnity hereunder (the
"Indemnified Party") to the Indemnifying Party; provided, however, that a party
shall not be deemed in breach hereof for so long as it contests in good faith
its liability for indemnification hereunder.
6.1.4. So long as the Indemnifying Party is defending in good
faith any such claim or demand, (i) the Indemnified Party shall not settle such
claim or demand without the prior written consent of the Indemnifying Party, and
(ii) any settlement of such claim or demand made without such consent of the
Indemnifying Party shall not be subject to indemnity under this Section 6.1. If
the Indemnifying Party fails to acknowledge in writing its obligation to defend
against or settle such claim or proceeding within twenty (20) days after
receiving notice thereof from the Indemnified Party (or such shorter time
specified in the notice as the circumstances of the matter may dictate), the
Indemnified Party shall be free to dispose of the matter at the expense of the
Indemnifying Party, in any way in which the Indemnified Party deems to be in its
best interest. Purchaser, in its reasonable discretion to protect its financial
interest may set off the amount of any legitimate claim for which it may be
entitled to indemnification hereunder against any payment to be made to Seller
hereunder.
6.1.5. The Indemnified Party shall make available to the
Indemnifying Party or its representatives all records and other materials
required for use in contesting any claim or demand asserted by a third party
against any Indemnified Party. Whether or not the Indemnifying Party so elects
to defend any such claim or demand, the Indemnified Party shall not have any
obligation to do so and the Indemnified Party shall not waive any rights it may
have against the Indemnifying Party under this Section 6.1 with respect to any
such claim or demand by electing or failing to elect to defend any such claim,
provided that the Indemnified Party against which a claim or demand is asserted
in
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the first instance shall file in a timely manner any answer or pleading with
respect to a suit or proceeding in such action as is necessary to avoid default
or other adverse results.
6.1.6. The obligations of Section 6.1.1 above shall be
subject to and limited by the following:
6.1.6.1. Purchaser shall not be entitled to
indemnification pursuant to this Agreement until the total for all liquidated
amounts of Losses for which Purchaser is entitled to indemnification hereunder
exceeds $75,000 (the "Threshold Amount"), and, in the event the Losses for
which Purchaser is entitled to indemnification hereunder exceeds the
Threshold Amount, Purchaser shall be entitled to recover all of such Losses
beginning with the first dollar and not merely the amount in excess of the
Threshold Amount.
6.1.6.2. Notwithstanding any provision herein to the
contrary, Purchaser shall not be entitled to indemnification for any amounts
in excess of an amount equal to the Purchase Price.
SECTION 6.2. Further Assurances. Seller shall, at any time and from
time to time on and after the Closing Date, upon request by Purchaser and
without further consideration, take such actions or cause others to do so, and
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, all transfers, conveyances, powers of attorney and assurances, as may
be required or desirable for the better conveying, transferring, assigning,
delivering, assuring and confirming to Purchaser, or its respective successors
and assigns, or for aiding and assisting in collecting or reducing to
possession, the Purchased Assets. To provide further assurances to Purchaser of
its performance hereunder, Seller agrees that it shall not, during the one year
period after the Closing Date, voluntarily dissolve or terminate its corporate
existence, or seek protection under any bankruptcy, receivership or other law
for the relief of debtors.
SECTION 6.3. Books and Records. At or immediately following the
Closing, Seller shall deliver to Purchaser all records constituting part of the
Purchased Assets; and all of Seller's correspondence, files, books and records,
necessary for Purchaser's conduct and operation of the Business and the
Purchased Assets; and shall instruct any other party in possession of such
materials to release them to Purchaser (except to the extent that Seller is
prohibited from or restricted in providing such information by other agreements
or applicable law). Seller shall retain the original copies of its tax returns,
and other records which it is required by law to maintain. Purchaser shall
safely store at its facilities in Gladwin, Michigan, or at such other reasonable
location of Purchaser upon prior notification to Seller, all records delivered
to it from Seller, and shall grant Seller reasonable access thereto for
legitimate business purposes upon Seller's request as may be made from time to
time for at least five (5) years after Closing; provided, however, that in the
event Purchaser intends to move such records out of the State of Michigan, prior
to
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such move Seller shall be permitted to request, and Purchaser shall be
required to provide, copies of such of the records as may reasonably be required
by Seller, subject to customary confidentiality covenants by Seller with respect
thereto.
SECTION 6.4. Employees. Purchaser shall, as part of the Assumed
Obligations, assume and have responsibility for all salaries, accrued bonuses,
commissions, vacation pay, and all other employee welfare plans of Seller, and
all payroll taxes thereon which accrued or earned prior to the time of Closing,
in all events only if and only to the extent the same have been included as part
of the computation of the Target Book Value. Seller shall remain responsible for
employee severance and termination benefits, if any, and all other employment
benefits, claims of wrongful termination, or the like, relating to Seller's
employees. In the event that Seller shall elect to terminate the employment of
its employees contemporaneously with the Closing, Seller shall be responsible
for giving such notification as may be required by the Worker Adjustment and
Retraining Notification Act of 1988, if applicable, and shall indemnify and hold
Purchaser harmless from and against all liabilities arising out of the
notification or other requirements thereof.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. Survival. The representations and warranties of Seller
shall survive Closing.
SECTION 7.2. Termination. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and abandoned at
any time prior to Closing.
7.2.1. By the mutual consent of Purchaser and Seller.
7.2.2. By Purchaser if all of the conditions to Closing
described in Section 4.1 have not been satisfied by May 30, 1996 or within ten
(10) days after the receipt by Purchaser of the Statements referred to in
Section 2.16 hereof.
7.2.3. By Purchaser or Seller if the transactions shall not
have been consummated by May 30, 1996, or such later date, including any
extended Closing Date, as may be agreed upon by the parties, due to the fault,
failure or neglect of the other party to proceed with the Closing.
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7.2.4. By Purchaser if Seller has materially breached any
representation or warranty herein or failed to perform any material obligation
or condition hereof and such breach or failure shall not have been cured in
manner, form and substance reasonably satisfactory to Purchaser; and
7.2.5. By Seller if Purchaser has materially breached any
representation or warranty herein or failed to perform any material obligation
or condition hereof and such breach or failure has not been cured in manner,
form and substance reasonably satisfactory to Seller.
Any termination pursuant to this Section 7.2 shall be without liability on the
part of any party, except as provided in Section 7.3 below.
SECTION 7.3. Expenses. Each party will pay all of its expenses in
connection with the negotiation of this Agreement, the performance of its
obligations hereunder, and the consummation of the transactions contemplated by
this Agreement. At Closing, Seller shall pay all sales and/or transfer tax which
may be required to be paid in connection with the transactions contemplated
herein including the transfer from Seller to Purchaser of the Purchased Assets
except for the transfer of vehicles in which situation Purchaser shall pay the
first $10,000 of Michigan vehicle transfer tax on all of the vehicles
transferred, in the aggregate, and Seller shall pay any amount in excess of such
amount. Seller agrees that the Purchased Assets include unique property that
cannot be readily obtained on the open market and that Purchaser will be
irreparably injured if this Agreement is not specifically enforced. In the event
Purchaser elects to terminate this Agreement pursuant to Section 7.2.3 or
Section 7.2.4 instead of seeking specific performance, Purchaser shall be
entitled as its sole other remedy to recover Purchaser's actual damages but in
any event not to exceed $200,000. If Seller terminates this Agreement solely as
a result of Section 7.2.3 or Section 7.2.5 hereof, Seller shall be entitled to
retain the Deposits as the sole remedy of Seller hereunder.
SECTION 7.4. Amendments, Waivers and Remedies. The parties hereto, by
mutual agreement in writing, may amend, modify and supplement this Agreement.
The failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach. Pursuit by any party hereto of any remedy shall not preclude
pursuit by it of any other remedy which may be provided by law or equity nor
shall the pursuit of any remedy by a party hereto constitute a forfeiture or
waiver of any amount due such party or of any damage accruing by reason of the
violation of any of the terms, provisions and covenants in this Agreement.
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SECTION 7.5. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (i) upon delivery if delivered by hand; (ii) four (4) days subsequent to
mailing if mailed by express, certified or registered mail, with postage
prepaid, in the continental United States; (iii) two (2) days subsequent to pick
up by such courier if sent by a nationally or internationally recognized
overnight courier service that regularly maintains records of items picked up
and delivered; or (iv) when transmitted if sent by telecopier, as follows:
If to Purchaser:
Life Critical Care Corporation
c/o The Morgenthau Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx X. Xxxxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxx, Esquire
Xxxxxxxxx, Xxxxxx & Xxxxxxx L.L.P.
000 Xxxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
If to Seller:
Mr. Xxxxxx Xxxxxxxx
00000 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
with a copy to:
Xxxx X. XxxXxxx, Esq.
Xxxxxxx and XxxXxxx
000 Xxxx Xxxxxx, Xxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Any party hereto may specify in writing a different address for such purpose to
the other parties at least five (5) days prior to the effective date of such
address change.
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SECTION 7.6. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Agreement, and the
rights, interests and obligations hereunder, may not be assigned by either party
without the prior written consent of the other party hereto.
SECTION 7.7. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provision of this Agreement unless the
consummation of the transaction contemplated hereby is adversely affected
thereby.
SECTION 7.8. Complete Agreement. This document and the documents
referred to herein contain the complete agreement between the parties and
supersede any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter
hereof in any way.
SECTION 7.9. No Third-Party Beneficiaries. This Agreement shall
be for the benefit only of the parties hereto, and their respective
successors and assigns.
SECTION 7.10. Waiver of Bulk Sales Act. In consideration of, and in
reliance upon, the representations and warranties made by Seller in Article 2,
Purchaser hereby waives compliance with the provisions of any applicable bulk
transfer laws.
SECTION 7.11. Singular and Plural; Gender. The singular shall
include the plural and vice-versa, and the use of one gender shall be deemed
to include all other genders whenever appropriate.
SECTION 7.12. Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement will be governed by the laws of the State
of Maryland without reference to any conflict of laws rules.
SECTION 7.13. Counterparts. This Agreement may be executed in two or
more counterparts each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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SECTION 7.14. Schedules. The Schedules hereto are an integral part of
this Agreement. Information described in any Schedule of this Agreement shall be
deemed disclosed in all Schedules of this Agreement and the term "Agreement"
shall include all Schedules, exhibits and other deliveries attached or made
pursuant hereto. Except as otherwise specifically provided for herein, any
Schedules which have not been prepared and attached to this Agreement on the
date of execution hereof shall be prepared and delivered by Seller to Purchaser
within ten (10) days from the date of execution of this Agreement.
SECTION 7.15. Headings. The headings and captions set forth herein
are for convenience of reference only and shall not affect the construction or
interpretation hereof.
SECTION 7.16. Further Documents. Each party shall, whenever and as
often as requested to do so by the other, but without expense to the
non-requesting party, execute, acknowledge, and deliver all such further
conveyances, assignments, confirmations, satisfactions, releases, instruments of
further assurance, approvals, consents and any and all other further instruments
and documents as may be necessary, expedient, or proper in the reasonable
opinion of the requesting party or its counsel in order to complete the
transactions contemplated herein.
SECTION 7.17. Arbitration. Any and all disputes, controversies or
claims that lead up to the execution of this Agreement or that arise out of or
relate to this Agreement or the breach of it, including, without limitation, any
dispute regarding the disposition of any deposit in the event this Agreement is
terminated and including any claims regarding the validity, scope and
enforceability of this arbitration clause, shall, if not promptly settled by the
parties, be solely and finally resolved by arbitration. The arbitration shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association (the "AAA") in effect at the time and shall be conducted
before a single arbitrator. The parties to the arbitration shall attempt to
agree, by mutual consent, to the appointment of the arbitrator. In the absence
of agreement among the parties, any party to the arbitration may apply to AAA
for a list of arbitrators from which list the arbitrator shall be selected in
accordance with the commercial arbitration rules of AAA.
Any such action or proceeding brought by Purchaser arising out of or
relating to this Agreement shall be brought in Traverse City, Michigan, and in
no other location. Any such action or proceeding brought by Seller arising out
of or relating to this Agreement shall be brought in Baltimore City, Maryland,
and no other location. All cross complaints shall be filed with the same
arbitration panel and in the same location in which the original complaint was
filed. The parties hereby waive the right to object to such location on the
basis of venue or forum nonconveniens. Judgment upon any award rendered by the
arbitrator may be entered in any court of competent jurisdiction in Maryland
and/or Michigan and each party hereto consents to the jurisdiction of such
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courts and waives all claims of improper venue. The arbitrator shall determine
all claims in accordance with the internal law of the State of Maryland. The
internal procedural and substantive laws of Maryland and the United States
Federal Arbitration Act shall govern all questions of arbitral procedure,
arbitral review, scope of arbitral authority, and arbitral enforcement. The
parties further agree that the arbitration proceeding shall constitute an
absolute bar to the institution of any court proceeding, and that the decision
and award of the arbitrator shall be final and binding.
The cost of the arbitration proceeding shall be borne by the
non-prevailing party, except that each party shall be responsible for its own
attorney fees, if any.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
under seal, on the day and year first above written, intending to be legally
bound hereby.
WITNESS: ABC MEDICAL SUPPLY, INC.
_____________________________ By: ______________________________(SEAL)
Xxxxxx Xxxxxxxx, President
- Seller -
WITNESS: LIFE CRITICAL CARE CORPORATION
_____________________________ By: ______________________________(SEAL)
, Vice President
- Purchaser -
WITNESS:
______________________________ __________________________________(SEAL)
XXXXXXX XXXXXX, Individually
______________________________ __________________________________(SEAL)
XXXXXX XXXXXXXX, Individually
-23-
EXHIBIT 1.2
XXXX OF SALE AND ASSIGNMENT OF ASSETS
THIS XXXX OF SALE AND ASSIGNMENT OF ASSETS is executed and
delivered effective this day of , 199__ by ABC
MEDICAL SUPPLY, INC., a Michigan corporation ("Seller"), to LIFE CRITICAL CARE
CORPORATION, a Delaware corporation ("Purchaser").
WHEREAS, Purchaser and Seller have entered into an Asset Purchase
Agreement, dated as of March 1, 1996 (the "Agreement"), providing for the
purchase by Purchaser of substantially all of the assets of Seller excluding
assets of Wound K-Air Management;
NOW, THEREFORE, pursuant to the Agreement, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Seller hereby grants, bargains, sells, delivers, transfers, sets over, assigns
and conveys to Purchaser and its successors and assigns, free and clear of any
and all liens, claims or encumbrances of any kind except for the Assumed
Obligations (as defined in the Agreement), all of the Purchased Assets (as
defined in the Agreement) including, without limitation, those assets and
properties listed or described on SCHEDULE A attached hereto and made a part
hereof, 'as is' and 'where is' and without any warranty or representation except
as set forth in the Agreement.
The transfer evidenced by this Xxxx of Sale and Assignment of Assets is
made subject to and upon all of the terms, covenants, conditions,
representations and warranties set forth in the Agreement, and all of which
terms, covenants, conditions, representations and warranties are incorporated
herein by reference, and shall survive the delivery of this Xxxx of Sale and
Assignment of Assets.
All of the terms and provisions of this Xxxx of Sale and Assignment of
Assets shall be binding upon Seller and its respective successors and assigns,
and shall inure to the benefit of the Purchaser and its successors and assigns.
IN WITNESS WHEREOF, Seller and Purchaser have caused the due execution
of this Xxxx of Sale and Assignment of Assets, under seal, as of the day and
year first above written.
ABC MEDICAL SUPPLY, INC.
By:________________________(SEAL)
, President
- Seller -
LIFE CRITICAL CARE CORPORATION
By:________________________(SEAL)
, Vice President
- Purchaser -
-2-
SCHEDULE A
TO
XXXX OF SALE AND ASSIGNMENT OF ASSETS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
SCHEDULE 1.3
EXCLUDED ASSETS
1. Life Insurance Policy(ies) of Seller
2. Cash values of any Life Insurance Policy(ies) of Seller
3. Federal and Michigan corporate income tax deposits of Seller
4. Assets of Wound K-Air Management
5. Cash of Seller
6. Marketable Securities of Seller
7. Certificates of Deposit of Seller and other Cash Equivalents
8. Any profit sharing plan of Seller
9. Prorations of prepaid and expensed items to the extent not included as
part of the computation of Target Book Value
10. Corporate minute book of Seller
11. Refunds from insurance policies of Seller, if any, canceled at Closing
SCHEDULE 1.6
LIABILITIES ASSUMED
1.
2.
3. [Short-term debt of Seller to Xxxxxxxx and Xxxxxx in the amount of
$__________ as evidenced by a promissory note dated _______________
(the "Note"), which debt has arisen from a loan made to Seller to assist
in keeping Seller's trade payables in reasonable balance with Seller's
receivables, with the proceeds of such loan used by Seller solely to pay
due and payable trade payables in the ordinary course of business;
provided, however, that notification shall be provided to Purchaser of
any and all such payments. At Closing, the Note shall be amended and
restated into a note in an original principal amount equal to the
principal balance of the Note as of the Closing Date, shall bear
interest at the prime rate of interest in effect as of the Closing Date,
and shall be payable in full no later than 180 days after the Closing
Date, with the amended and restated note to be assumed by Purchaser at
Closing and with the Purchaser permitted to prepay such note at any
time, in whole or in part, prior to its maturity.]
SCHEDULE 1.6.1
LIABILITIES NOT ASSUMED
1. Indebtedness of Seller for any long term debt for borrowed money
(except those long term debt obligations, if any, which were first
incurred subsequent to November 30, 1995 in connection with acquisition
of an asset specifically requested by Purchaser).
2. Seller's obligations under its brokerage contract with Telesis.
3. Any claims against Seller by Seller's employees for wrongful employment
termination, discrimination, or violation of employment, labor or ERISA
laws or regulations except to the extent and within the amounts shown
in and reserved against in the Seller's financial records by the
parties to prepare the Target Book Value.
4.
SCHEDULE 1.7
ALLOCATION OF PURCHASE PRICE*
Inventory $ 120,000.00
Accounts Receivable $ 625,000.00
Security Deposits $ 2,500.00
Furniture, Fixtures, and
Equipment $ 325,000.00
Covenant Not To Compete $ 1.00
Goodwill $3,427,499.00
TOTAL: $4,500,000.00
* This is a draft Allocation of Purchase Price which must be
confirmed or revised by mutual agreement of Purchaser and
Seller prior to Closing.
SCHEDULE 2.7
CONTRACTS AND COMMITMENTS
SCHEDULE 2.10
INSURANCE
1.
2.
3.
4.
5.
SCHEDULE 2.13
LICENSES AND PERMITS
1.
2.
3.
4.
5.
EXHIBIT 4.1.1.2
ASSIGNMENTS OF LEASES
[Attached is a draft form of Assignment of Leases supplied by
Seller to Purchaser. Its execution is dependent upon
Purchaser's review and reasonable approval of each of the
lease agreements to be assigned thereunder and Purchaser's
review and reasonable approval of the form of Assignment
itself.]
EXHIBIT 4.1.1.3
COVENANT NOT TO COMPETE
COVENANT NOT TO COMPETE made and entered into this ____ day of ______,
199__, by and between _____________________________ ("Covenantor") and LIFE
CRITICAL CARE CORPORATION, a Delaware corporation, and its successors and
assigns ("Purchaser").
WITNESSETH:
WHEREAS, ABC Medical Supply, Inc. (hereafter called "Seller") is
selling certain operating assets related to its home medical equipment business
(the "Business") to Purchaser in a transaction contemplated in an Asset Purchase
Agreement dated _____________, 1996 (hereafter called the "Agreement") entered
into by Seller and Purchaser; and
WHEREAS, the Covenantor has been a stockholder of Seller involved in
the operation of the Business and is familiar with the operation of the Business
generally; and
WHEREAS, the Covenantor agreed to enter into this Covenant Not to
Compete as an inducement to Purchaser to enter into the Agreement as a result of
which Agreement the Covenantor will materially benefit.
NOW, THEREFORE, the parties hereto do covenant and agree as follows:
1. COVENANT NOT TO COMPETE PAYMENT. Simultaneously with the
delivery of this Covenant Not to Compete, Purchaser has paid to Seller the
sum of One Dollar ($1.00) in cash, or certified check.
2. RESTRICTIVE COVENANT. In consideration for the entry into the
Agreement by the Purchaser, the Covenantor covenants that he will not, directly
or indirectly for a period of five (5) years from and after the date hereof, own
in whole or in part, manage, operate, control, or perform services for any home
health equipment business located within the States of Michigan, Illinois,
Indiana or Ohio, except that Covenantor shall remain free to own and conduct the
business of Wound K-Air Management.
3. CONFIDENTIAL INFORMATION. For a period of five (5) years from and
after the date hereof, the Covenantor shall hold all Confidential Information
(i.e., all trade secrets and proprietary and confidential information regarding
the Business of whatever nature, in whatever medium, developed, owned or
acquired by the Seller or the Covenantor, including customers and prospective
customers and suppliers but excluding information which at the time of
disclosure is in the public domain through no fault of, or violation of law or
breach of agreement by the Covenantor or which the Covenantor can demonstrate he
has lawfully obtained from a third party under circumstances permitting its
lawful disclosure and use which the Covenantor reasonably believes has no
obligation of confidentiality with respect thereto) in confidence and not
disclose, duplicate, communicate or transmit the Confidential Information to any
person or use or exploit any Confidential Information for any purpose, except as
may be necessary or desirable to the permitted operation of Wound K-Air
Management, and in a manner reasonably calculated to avoid any material adverse
effect on the Business as conducted by Purchaser.
4. REASONABLENESS. The Covenantor hereby expressly agrees that any
competition by him with the Business in violation of the terms of this Covenant
Not to Compete would, among other things, materially impair the Purchaser's
future prospects and that the limitations set forth in Paragraph 2 above are
reasonable, both as to time and geographic area. If, notwithstanding the
foregoing, the scope of any restriction contained in Paragraph 2 is too broad to
permit enforcement thereof to its full extent, such restriction shall be
enforced to the maximum extent permitted by law, and Covenantor hereby agrees
that such scope may be judicially modified accordingly in any proceeding brought
to enforce such restriction.
5. INJUNCTIVE RELIEF. The Covenantor hereby recognizes that in the
event of his breach of any of the covenants hereunder Purchaser's remedies at
law for money damages would be inadequate, and, therefore, the Covenantor hereby
stipulates that Purchaser shall be entitled to injunctive relief in the event of
any breach of the Covenantor's covenants hereunder.
6. INTERPRETATION. This Covenant Not to Compete and the provisions
hereof shall in all respects be interpreted under and regulated by the laws
of the State of Michigan except for the choice of law rules utilized in that
jurisdiction.
7. AMENDMENT. This Covenant Not to Compete contains all the
understandings of the parties and shall not be altered or amended, except in a
writing signed by each of the parties hereto.
-2-
8. ATTORNEYS' FEES. In the event of litigation between the parties,
the prevailing party shall be entitled to reasonable attorneys' fees and costs
of litigation.
9. BINDING EFFECT. This Covenant Not to Compete shall be binding
upon the parties and their respective successors and assigns.
10. COUNTERPARTS. This Covenant Not to Compete may be executed in
two or more counterparts, each of which, when taken together, shall constitute
one and the same original.
IN WITNESS WHEREOF, the parties have caused this Covenant Not to
Compete to be executed under seal on the day and year first above written.
COVENANTOR:
_________________________________(SEAL)
[ONE SET TO BE EXECUTED BY EACH
STOCKHOLDER OF ABC MEDICAL
SUPPLY, INC.]
PURCHASER:
LIFE CRITICAL CARE CORPORATION
By:______________________________(SEAL)
-3-
EXHIBIT 4.1.1.6
OPINION OF COUNSEL FOR SELLER
[Letterhead of Xxxxxxx and XxxXxxx]
______________, 199__
Life Critical Care Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxx
Ladies and Gentlemen:
This opinion is delivered pursuant to Section 4.1.1.6 of the
Asset Purchase Agreement, dated , 1996 (the "Agreement"),
between ABC Medical Supply, Inc. (the "Company"), Xxxxxxx Xxxxxx and Xxxxxx
Xxxxxxxx and Life Critical Care Corporation (the "Purchaser"). I have acted
as counsel to the Seller in connection with the Agreement and the
transactions contemplated thereby. Where a term that is defined in the Agreement
is used in this Opinion, the term has the same meaning set forth in the
Agreement, unless differently defined herein.
(1) In rendering the opinions set forth below, I have examined:
(A) The fully executed Agreement; and
(B) The Articles of Incorporation, By-Laws and minutes of the
corporate proceedings of the Company.
(2) In rendering the opinions set forth below, I have assumed:
(A) Each of the parties to the Agreement other than my clients
have the power and authority to: (i) enter into the Agreement and all other
agreements or documents required to be executed by it pursuant to the Agreement;
and (ii) perform all of its obligations under the Agreement and all other
agreements or documents required to be executed by it pursuant to the Agreement;
(B) All required corporate actions and authorizations
other than on behalf of my clients have been completed; and
(C) The authenticity of all documents submitted as originals,
the genuineness of all signatures other than signatures on behalf of my clients
and the conformity to the originally executed documents of all documents
submitted to us as drafts or photocopies.
In rendering my opinions, whenever my opinion herein regarding the
existence or absence of facts is indicated to be based on my knowledge or
awareness, my opinion is intended to signify that during the course of my
representation of the Company no information has come to my attention which
would give me actual knowledge of the existence or absence of such facts. I have
not undertaken any independent investigation to determine the existence or
absence of such facts and no inference of further knowledge should be drawn from
my representation of the Company. As to various questions of fact material to
this Opinion, I have relied upon the truth and completeness of the
representations and warranties made by the Company as the "Seller" in the
Agreement and upon certifications executed by the Officers and Directors of the
Company. In addition, I have obtained from public officials and from officers of
the Company such other certificates and assurances, and I have examined such
corporate records, other documents and questions of law, as I have considered
necessary or appropriate for purposes of this Opinion.
Based upon the foregoing, and subject to the limitations and
qualifications set forth herein, it is my opinion that, as of the date of this
letter:
(A) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the state of Michigan, and has
the corporate power to own all of its properties and assets and to carry on its
business as it is now being conducted.
(B) The Company has validly taken all necessary corporate action
to authorize it to execute and deliver the Agreement and to consummate the
transactions contemplated thereby; and the Agreement has been duly executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms.
(C) The execution and delivery of the Agreement by the Company
and the consummation by the Company of the transactions contemplated on its part
thereby do not and will not violate any provision of the Articles of
Incorporation or By-Laws of the Company.
-2-
(D) To my knowledge, all consents, authorizations, orders or
approvals of, and filings and registrations with, any governmental commission,
board or other regulatory body required for or in connection with the execution
and delivery of the Agreement by the Company and the consummation by it of the
transactions contemplated on its part thereby have been obtained or made.
(E) To my knowledge, except as disclosed on any Schedule to the
Agreement, there is no claim, action, suit or legal, administrative or other
proceeding or governmental investigation, pending or threatened against the
Company or any of its properties which might result in any material adverse
change in the business or financial condition of the Company.
(F) To the best of my knowledge, neither the execution and
delivery of the Agreement, nor the consummation of the transactions contemplated
thereby, conflicts with or does or will violate or result (with the giving of
notice and/or the passage of time) in a breach of any of the terms, conditions
or provisions of or constitute a default under, any lease, mortgage, contract or
other agreement binding on the Company or affecting its properties. To the best
of my knowledge, no consent or approval of any public authority is required as a
condition to the validity or enforceability of the Agreement or any transaction
contemplated thereby.
The foregoing Opinion is subject to the following
qualifications:
(A) The Opinion is subject to the operation and effect of
applicable bankruptcy, insolvency, moratorium, reorganization, receivership or
other similar laws, statutes or rules now or hereafter in effect affecting the
rights of creditors generally and the rights of taxing authorities.
(B) The enforceability of the Agreement may require enforcement
by a court of equity, and such enforcement is subject to such principles of
equity as courts having jurisdiction may impose.
(C) In rendering my opinion regarding the good standing of the
Company, I have relied exclusively upon a Certificate of Good Standing, dated
, 1996, issued by the Michigan Corporation and Securities
Bureau.
(D) My Opinion is based solely upon the laws of the State of
Michigan, and I am opining herein as to the subject transaction as though the
laws of the United States of America and the State of Michigan were the only
applicable laws. I assume no responsibility as to the applicability thereto or
affect thereon of the laws of any other state or jurisdiction. As to matters
governed or affected by laws of states other than the State of Michigan, I have
assumed that insofar as the substantive laws of any other state may be
-3-
applicable to any opinions herein, such laws are identical to the substance of
laws of the State of Michigan applied by me herein.
This opinion is being furnished to you solely for your benefit and the
benefit of your counsel and may not be relied upon by, nor copies of it
delivered to, any other person or parties without my prior written consent.
Very truly yours,
XXXXXXX AND XXXXXXX
By: _________________________
Xxxx X. XxxXxxx, Partner
-4-
EXHIBIT 4.1.1.7
ARTICLES OF TRANSFER
BETWEEN
ABC MEDICAL SUPPLY, INC.
AND
LIFE CRITICAL CARE CORPORATION
THIS IS TO CERTIFY THAT:
FIRST: ABC Medical Supply, Inc., a Michigan corporation (the
"Transferor"), agrees to transfer all or substantially all of its property and
assets to Life Critical Care Corporation, a Delaware corporation (the
"Transferee") pursuant to the terms of an Asset Purchase Agreement between the
Transferor and the Transferee of even date herewith.
SECOND: The Transferor is incorporated under the laws of the
State of Michigan, with a principal office located at
________________________________________.
THIRD: The Transferee is incorporated under the general
laws of the State of Delaware. The Transferee's address and principal place of
business is 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
FOURTH: The Transferor owns no interest in land, the title
to which could be affected by the recording of an instrument among the land
records.
FIFTH: The terms and conditions of the transaction set forth in
these Articles of Transfer were advised, authorized and approved by the
Transferor in the manner and by the vote required by its Articles of
Incorporation and Michigan law, in the following manner: The Board of Directors
of the Transferor by unanimous written consent adopted a resolution declaring
that the proposed transaction described herein was advisable, and directed that
the proposed transaction be submitted to the stockholders of the Transferor for
consideration and approval. The Shareholders of the Transferor by unanimous
written consent adopted a resolution declaring that the proposed transaction
described herein was approved.
SIXTH: The terms and conditions of the transaction set forth in
these Articles of Transfer were advised, authorized and approved by the
Transferee in the manner and by the vote required by its Charter and the laws of
the place of its incorporation, in the following manner: The Board of Directors
of the Transferee by unanimous written consent adopted a resolution declaring
that the proposed transaction was approved.
SEVENTH: The nature and amount of the consideration to be paid
by the Transferee to the Transferor for the assets to be transferred by the
Transferor pursuant to the Asset Purchase Agreement is ____________ Thousand
Dollars ($___________).
IN WITNESS WHEREOF, on this __ day of , 199__,
Transferor has caused these Articles of Transfer to be executed on its behalf
by its President and attested by its Secretary, and Transferee has caused
these Articles of Transfer to be executed on its behalf by its President
and attested by its Secretary, and each individual signing hereby acknowledges,
under penalties for perjury, that these Articles of Transfer are the act
of the party on whose behalf such individual is executing the Articles of
Transfer and that, to the best of his or her knowledge, information and belief,
the facts and matters set forth herein are true in all material respects.
ATTEST: ABC MEDICAL SUPPLY, INC.
__________________________ By:____________________________(SEAL)
, Secretary , President
ATTEST: LIFE CRITICAL CARE CORPORATION
__________________________ By:____________________________(SEAL)
, Secretary , Vice President
-2-
EXHIBIT 4.2.1.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made this _____ day
of _______________, 199__, by and between LIFE CRITICAL CARE CORPORATION, a
Delaware corporation ("Purchaser"), and ABC MEDICAL SUPPLY, INC., a Michigan
corporation ("Seller").
WHEREAS, pursuant to that certain Asset Purchase Agreement,
dated _____________, 1996, between the parties hereto (the "Purchase
Agreement"), Seller has agreed to assign and transfer to Purchaser certain
assets, properties and business of Seller;
NOW, THEREFORE, in consideration of the transfer to Purchaser of
the aforesaid assets, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignment. Seller hereby assigns and transfers to
Purchaser the following: All right, title and interest of Seller in, to and
under all contracts, leases, indentures, agreements, commitments and all
other legally binding arrangements, whether oral or written, to which Seller is
a party or by which Seller is bound ("Contracts") that are listed on Schedule A
hereto.
2. Assumption. Subject to the further terms of this Agreement,
effective on the date hereof, Purchaser, for itself and its successors and
assigns, hereby covenants and agrees to assume, and hereby does assume, and
agrees to discharge, perform, and observe, and to indemnify, defend, and hold
Seller harmless from and against the obligations of Seller, as and to the extent
arising from and after the date hereof, or pertaining to any period subsequent
to the date hereof, as are listed or described on Schedule A, attached hereto
and made a part hereof.
3. Further Assurances. The parties agree that they will take
whatever action or actions are found to be reasonably necessary from time to
time to effectuate the provisions and intent of this Agreement, and, to that
end, the parties agree that they will execute any further documents or
instruments which may be necessary to give full force and effect to this
Agreement or to any of its provisions.
4. Binding Effect. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
5. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland.
6. Miscellaneous. This Agreement is made and entered
into pursuant to the terms, conditions, and provisions of the Purchase
Agreement, the terms of which are hereby made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused the due
execution of this Assignment and Assumption Agreement, under seal, as of the day
and year first above written.
WITNESS: ABC MEDICAL SUPPLY, INC.
______________________________ By: ___________________________(SEAL)
, President
- SELLER-
WITNESS: LIFE CRITICAL CARE CORPORATION
______________________________ By: ___________________________(SEAL)
, Secretary , Vice President
- PURCHASER-
-2-
SCHEDULE A
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
-3-
