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EXHIBIT 10.29
ASSET PURCHASE AGREEMENT
THIS AGREEMENT by and among DOCTOR'S PRACTICE MANAGEMENT, INC., a Texas
Corporation (the "Purchaser") and KIRKWOOD MEDICAL ASSOCIATES, P.A., a Texas
professional association, XXXXXX X. XXXXXXXX, D.O., XXX XXXXXXXX, D.O., and
XXXX XXXXXXXX, D.O. (the "Seller")
WITNESSETH:
WHEREAS, the parties hereto desire to memorialize the purchase of the
accounts receivable and billing of the Seller by the Purchaser in exchange for
certain cash consideration and release of indebtedness of the Seller by the
Purchaser, all on the terms and conditions herein set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. TRANSFER OF ASSETS: CONSIDERATION, AND OTHER MATTERS
1.1 SALE OF TANGIBLE AND INTANGIBLE ASSETS. The Seller,
at the Closing referred to in Section 2 hereof, will grant, sell,
transfer, convey and deliver to the Purchaser all of the Sellers
accounts receivable and billing through October 31, 1997, listed on the
attached Schedule A, excepting, however, (i) attorney accounts; (ii)
automobile insurance accounts; (iii) motor vehicle accident accounts;
(iv) HMO accounts; (v) and capitation accounts; in the total amount of
$120,538.00. The accounts receivable and billing of the Seller to be
transferred hereunder are hereinafter sometimes called the "Assets."
1.2 CONSIDERATION. Based upon the terms and subject to the
conditions of this Agreement, the total consideration to be paid by the
Purchaser for the Assets referred to in Section 1.1 shall be as
follows:
i) $48,000.00 in cash;
ii) $56,197.00 in outstanding advances which have
been made by Purchaser to Seller;
iii) Rent for the month of November, 1997, in the
amount of $13,400.00.
1.3 ALLOCATION OF PURCHASE PRICE. The Seller and the
Purchaser both expressly acknowledge and agree that the consideration
to be paid and received for the Assets is fair and reasonable and
represents equivalent value given for the transfer and sale of the
Assets from the Seller to the Purchaser.
1.4 RECORDS. It is understood that the Seller has
delivered to the Purchaser all books, records, files and other data
relating to the Assets. Seller agrees to take all such additional steps
as may be required to put the Purchaser in full possession and control
of the Assets.
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2. THE CLOSING.
2.1 THE CLOSING. The purchase and sale of the Assets
shall take place simultaneously with the execution of this Agreement
as contemplated in Section 1 of this Agreement (herein called the
"Closing") and shall take place at the offices of the Purchaser on
November 6, 1997, unless mutually extended by the parties hereto. The
date of the Closing is referred to in this Agreement as the "Closing
Date."
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Purchaser that:
3.1 ORGANIZATION AND EXISTENCE. The Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Texas and has all requisite legal and
corporate power to carry on its business as now conducted and to enter
into and perform this Agreement.
3.2 TAX MATTERS. To the best of Seller's knowledge, all
foreign, federal, state, county, local and other taxes, including
without limitation, income taxes, occupation taxes, corporate franchise
taxes, employment and withholding taxes, and sales and ad valorem
taxes, due and payable by the Seller on or before the date of this
Agreement have been paid and the Seller has filed all tax returns and
reports required to be filled by it, with all such taxing authorities.
Seller has made reasonable and adequate provision for the payment of
all accrued and unpaid foreign, federal, state, county, local and other
taxes of the Seller for all periods ended on or prior to the date
hereof, whether or not disputed. No assessment of deficiencies has
been made against the Seller and no extensions of time are in effect
for the assessment of deficiencies.
3.3 ASSETS. Seller has previously delivered to Purchaser
and Purchaser has reviewed and confirmed the list and description of
the Assets as set forth on Schedule A.
3.4 LIENS. The Assets listed in Schedule A are not
encumbered, pledged, assigned, or the subject of any UCC lien or filing
statement.
3.5 SELLER'S AUTHORITY RELATIVE TO THIS AGREEMENT. The
execution, delivery and performance of this Agreement by the Seller has
been duly authorized and approved by the officers of the Seller and no
further corporate action is necessary on the part of the Seller to
make this Agreement valid and binding upon the Seller in accordance
with its terms. Neither the execution, delivery nor performance of
this Agreement by the Seller will result in a violation or breach of
any term or provision under the Articles of Association or Bylaws of
the Seller or, constitute a default or breach of, or accelerate the
performance required under, any indenture, mortgage, deed of trust or
other contract or agreement to which the Seller is a party or by which
it or any of its respective assets are bound, or, violate any order,
writ, injunction or decree of any court, administrative agency or
governmental body.
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4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to and agrees with the Seller that:
4.1 ORGANIZATION AND EXISTENCE. The Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Texas and has all requisite legal and
corporate power to enter into and perform this Agreement.
4.2 AUTHORITY RELATIVE TO THIS AGREEMENT. The execution,
delivery and performance of this Agreement by the Purchaser have been
duly authorized by the Board of Directors of the Purchaser, and no
further corporate action is necessary on the part of the Purchaser to
make this Agreement valid and binding upon the Purchaser in accordance
of its terms. Neither the execution, delivery nor performance of this
Agreement by the Purchaser will result in a violation or breach of any
term or provision under the Articles of Incorporation or Bylaws of the
Purchaser or constitute a default or beach of, or accelerate the
performance required under any indenture, mortgage, deed of trust or
other contract or agreement to which the Purchaser is a party or by
which it or its properties are bound, or violate any order, writ,
injunction or decree of any court, administrative agency or
governmental body.
5. INFORMATION.
5.1 CONFIDENTIAL INFORMATION. The Seller acknowledges
that in the course of its previous involvement with the business
conducted by the Seller, it has had and will continue to have access to
certain know-how, formulae, processes, data, proprietary information,
supplier and patient records and information and other confidential
knowledge of the business and operations of the Seller and Purchaser.
Seller understands that all such information is confidential and has
been or will be conceived or teamed by them in confidence, and it
agrees not to reveal any such information to any third person for any
reason or under any circumstances. The restrictions in this Section
shall not apply and shall not prohibit the use or disclosure of such
confidential information (i) to the extent required by law or court
order, or other administrative order in any litigation, arbitration, or
similar proceeding; (ii) to the extent such information becomes
publicly available other than through a breach of this section; or
(iii) to the extent such information would become necessary to support
any claim arising between the parties; or (iv) with the written
agreement of the Purchaser. The Seller agrees that any remedy at law
for actual or threatened breach of the provisions of this section
would be inadequate and that the Purchaser shall be entitled to
specific performance thereof or injunctive relief by temporary or
permanent injunction or such other appropriate judicial remedy, writ or
order as may be entered by a court of competent jurisdiction. Any such
remedy shall be in addition to any damages which the Purchaser may be
legally entitled to recover as a result of any breach by the Seller of
the provisions of this section, and the Seller hereby waives any
requirement for the securing or posting of any bond in connection with
obtaining any such injunctive or other equitable relief.
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6. COVENANTS OF THE PURCHASER. The Purchaser covenants with the
Seller that:
6.1 CONFIDENTIALITY OF INFORMATION FURNISHED BY THE
SELLER. The Purchaser has treated all information provided to it
pursuant to Section 5 as confidential.
6.2 ACCESS TO INFORMATION. All files, accounts, and
records of the Seller delivered to the Purchaser at or after the
Closing pursuant to this Agreement shall be made available to the
Seller by the Purchaser at any reasonable time during regular business
hours, or for a period of not less than two years after the Closing
Date, and the Seller may, at their own expense, make such excerpts
therefrom or copies thereof as they may request, provided, however,
that in the event Seller is audited or required or requested to produce
any such records after such two year period, Purchaser shall upon
reasonable notice make any such existing records available at Seller's
expense. Purchaser shall maintain the confidentiality of the clinical
and financial content of all patient records.
7. MISCELLANEOUS.
7.1 SALES, TRANSFER AND AD VALOREM TAXES. The Seller
shall pay all sales and transfer taxes which may be payable as a direct
result of the sale of the Assets to Purchaser pursuant to this
Agreement. Ad valorem taxes on the personal property included in the
Assets shall be prorated through the Closing, and settlement shall
be made at the Closing.
7.2 SPECIFIC PERFORMANCE. Each party acknowledges that a
remedy at law for any breach or attempted breach of the provisions of
this Agreement will be inadequate, and agrees that each party shall be
entitled to specific performance and injunctive or other equitable
relief in case of any such breach or attempted breach.
7.3 NOTICES. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be deemed to
have been given if personally delivered, telegraphed or telecopied with
receipt confirmed, or mailed, first class, registered or certified
mail, postage prepaid to the following:
If to the Seller: Kirkwood Medical Associates, P.A.
0000 X Xxxxx
Xxxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Telefax: (000) 000-0000
If to the Purchaser: Doctors Practice Management, Inc,
0000 X Xxxxx
Xxxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Telefax: (000) 000-0000
or to such other address as shall be given in writing by any party to
the others.
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7.4 SUCCESSORS BOUND. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, personal legal representatives, and assigns.
7.5 SECTION AND PARAGRAPH HEADINGS. The section and
paragraph headings in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement. The word "this Agreement," "this instrument," "herein,"
"hereto," "hereunder," and words of similar import refer to this
Agreement as a whole and not to a particular article, section,
paragraph, or other subdivision of this Agreement. Whenever the
context requires, the gender of all words used in this Agreement shall
include the masculine, feminine, and neuter, and the number of all
words shall include the singular and the plural.
7.6 AMENDMENT, WAIVER. This Agreement may be amended only
by an instrument in writing executed by the parties hereto. The waiver
of any covenant, condition, or breach of any provision of this
Agreement must be in writing and such waiver shall not operate or be
construed as a waiver of any subsequent or continuing condition.
7.7 ENTIRE AGREEMENT. This Agreement is the entire
agreement among the parties hereto with respect to the subject matter
hereof and thereof; and there are no promises, covenants, undertakings,
representations, or warranties with respect to the subject matter
hereof or thereof, written or oral, except those expressly set forth
or referred to herein.
7.8 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which shall constitute the same instrument.
7.9 GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of Texas
7.10 PUBLIC DISCLOSURE. The parties hereto agree that any
disclosure or press release about the transactions contemplated by this
Agreement may only be made in the manner and at the time mutually
determined by the Purchaser and the Seller.
7.11 TIME. Time is of the essence hereof. If the time for
performance of any obligations set forth in this Agreement falls on
Saturday, Sunday, or legal holiday, compliance with such obligation on
the next business day following such Saturday, Sunday or legal holiday
shall be deemed acceptable. For purposes of this Agreement, a
"business day" is any day other than a Saturday, Sunday, or legal
holiday in Texas.
7.12 ATTORNEY'S FEES. In the event of any action at law or
in equity between the parties hereto to enforce any provision or right
hereunder or in any way related hereto or arising herefrom, the
unsuccessful party in such litigation covenants and agrees to pay to
the successful party all costs and expenses, including reasonable
attorney's fees, incurred therein by such successful party. If such
successful party shall recover judgment in any such action or
proceeding, such costs and expenses shall be included as part of such
judgment.
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7.13 LANGUAGE. The language of this Agreement shall be
construed as a whole and in accordance with the fair meaning of the
language used. The language of this Agreement shall not be strictly
construed for or against either of the parties hereto based upon who
drafted or was principally responsible for drafting the Agreement or
any specific term or condition hereof. This Agreement shall be deemed
to have been drafted by each party hereto, and no party may urge
otherwise.
7.14 KNOWLEDGE. Any representation, warranty or covenant
herein which is limited to a party's "knowledge" is made with the
understanding that such party has examined whatever sources of
information that are reasonably accessible to such party in order to
verify the truth and accuracy of such representation, warranty or
covenant.
7.15 OTHER DOCUMENTS. The parties agree to execute all
other documents or instruments necessary to effect the transfers of
property set forth herein and otherwise to implement the provisions of
this Agreement.
7.16 INDEMNITY. Seller agrees to indemnify and hold the
Purchaser harmless from any claims or offsets resulting from the
accounts receivable or the services upon which they are based, which
are the subject of this transfer agreement. Such indemnification shall
include and apply to reasonable attorneys fees, investigation costs,
and other costs actually incurred by Purchaser in defending against any
such claims or offsets.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties on November 13, 1997.
SELLER:
KIRKWOOD MEDICAL ASSOCIATES, P.A.
By: /s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, D.O.,
PRESIDENT
By: /s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, D.O.
By: /s/ Xxx Xxxxxxxx
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XXX XXXXXXXX, D.O.
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By: /s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX, D.O.
PURCHASER:
DOCTORS PRACTICE MANAGEMENT, INC.
By: /s/ Xxxx Xxxxx
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XXXX XXXXX, VICE PRESIDENT
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