Exhibit 10.2
AGREEMENT FOR SALE AND PURCHASE OF ASSETS
AND COVENANT NOT TO COMPETE
THIS AGREEMENT is made as of the 1st day of September, 2007, by and between
BEACON RESPIRATORY SERVICES OF COLORADO, INC., a Delaware corporation (the
"Seller"), an address of which is c/o Arcadia Resources, Inc., 00000 Xxxxxxx
Xxxx Xxxx., Xxxxxxxxxx, XX 00000, and ALLCARE, INC., a Colorado corporation (the
"Buyer"), an address of which is c/o Aerocare Holdings, Inc., 0000 Xxxxxxxx
Xxxx., Xxxxxxx, Xxxxxxx 00000.
WITNESSETH:
WHEREAS, the Seller operates a durable medical equipment and respiratory
therapy business in the State of Colorado (all of the business lines of the
Seller are collectively herein referred to as the "Business"); and
WHEREAS, the Buyer desires to purchase from the Seller substantially all of
the assets of the Business (together as herein described and described in
Section 1 sometimes referred to as the "Assets"), including but not limited to
all personal property, inventory and fixed assets, motor vehicles, contracts,
franchise agreements, machinery and equipment (including leased equipment under
any operating leases specifically assumed herein by the Buyer), office
equipment, computer equipment and software, and furniture, furnishings and
fixtures, plus all of the Seller's rights in: (a) all of the intangible assets
of the Business listed on the Schedule of Intangible Assets and Telephone
Numbers attached hereto as EXHIBIT 1-C1; (b) the telephone numbers listed on the
Schedule of Intangible Assets and Telephone Numbers attached hereto as EXHIBIT
1-C1; (c) the Patients' List of the Business with information current at least
through July 31, 2007 (the "Patients' List of the Business") attached hereto as
EXHIBIT 1-C2; (d) all of the Seller's prepaid assets and non-bank deposits; (e)
the "Included Revenues" of the Business as defined below; and (f) all other
assets of any kind utilized by Seller in the Business, whether in existence as
of the Closing Date or acquired or on hand at any time thereafter, including but
not limited to all other assets owned by Seller, and any other assets disclosed
in Seller's Financial Statements. Expressly excluded from the Assets
(collectively, the "Excluded Assets") are accounts receivable of the Business
representing billing for sales up to but not after August 31, 2007, billing for
rental patients up to but not after August 16, 2007 and billing for new rental
setups up to but not after August 16, 2007, the cash and bank deposits of the
Business, and any other assets which the Buyer and Seller deem to be "Excluded
Assets" by the inclusion of such assets on the Schedule of Excluded Assets
attached hereto as EXHIBIT 1-C3. Buyer also desires to purchase from the Seller,
and the Seller desires to sell to Buyer, that certain covenant not to compete as
described elsewhere in this Agreement (the "Covenant Not to Compete").
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, it is hereby agreed as follows:
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1. Sale of Assets and Covenant Not to Compete. The Seller shall as of the
Closing Date referred to below, sell, assign and transfer to the Buyer all of
the Seller's Assets, including but not limited to:
a. Inventory and Fixed Assets. All of the Seller's rights, title and
interest in the inventory and fixed assets of the Business, including but not
limited to those set forth on the Schedule of Inventory and Fixed Assets
attached hereto as EXHIBIT 1-A;
b. Motor Vehicles. All of the Seller's rights, title and interest in
the motor vehicles of the Business, including but not limited to those set forth
on the Schedule of Motor Vehicles attached hereto as EXHIBIT 1-B;
c. Other Assets. All of the Seller's rights, title and interest in all
contracts, franchise agreements, machinery and equipment (including leased
equipment under any operating leases specifically assumed herein by the Buyer),
office equipment, computer equipment and software, and furniture, furnishings
and fixtures of the Business, plus all of the Seller's rights in: (a) all of the
intangible assets of the Business listed on the Schedule of Intangible Assets
and Telephone Numbers attached hereto as EXHIBIT 1-C1; (b) the telephone numbers
listed on the Schedule of Intangible Assets and Telephone Numbers attached
hereto as EXHIBIT 1-C1; (c) the Patients' List of the Business attached hereto
as EXHIBIT 1-C2; (d) all of the Seller's prepaid assets and non-bank deposits;
(e) any and all revenues of the Business resulting from: (1) sales of the
Business after August 31, 2007, (2) xxxxxxxx pertaining to rental patients after
August 16, 2007, and (3) xxxxxxxx pertaining to new rental setups after August
16, 2007 (collectively, the "Included Revenues"), and (f) all other assets of
any kind utilized by Seller in the Business, whether in existence as of the
Closing Date or acquired or on hand at any time thereafter, including but not
limited to all other assets owned by Seller, and any other assets disclosed in
Seller's Financial Statements. The Excluded Assets listed on the Schedule of
Excluded Assets attached hereto as Exhibit 1-C3 are not being sold by this
Agreement. In the event any person or entity asserts a claim that any Assets
purchased by Buyer hereunder are not owned by Seller, Seller shall be solely
responsible for satisfying such claim by use of the proceeds of the Purchase
Price for that purpose; and
d. Covenant Not to Compete. Grant to Buyer, the Covenant Not to
Compete.
2. Purchase Price Provisions.
a. Purchase Price. The purchase price for the Assets and the Covenant
Not to Compete (the "Purchase Price") shall be One Million Two Hundred Thousand
Dollars ($1,200,000), less Forty-Eight Thousand Dollars ($48,000) ),
representing the amount owed by the Seller to Xxxxxx Xxxxxxxx & Associates, Inc.
on the Closing Date (the "SRA Commission Obligation"), which amount shall be
paid by Buyer to Xxxxxx Xxxxxxxx & Associates, Inc. by wired funds delivered to
Xxxxxx Xxxxxxxx & Associates, Inc. on the Closing Date (or on the next banking
day following the Closing Date if all documents contemplated to be executed at
Closing were fully executed after 12:01 p.m., E.D.T. on the Closing Date). The
SRA Commission Obligation to be paid on the Closing Date does not include any
commission payable by Seller to Xxxxxx Xxxxxxxx & Associates, Inc. after the
Closing Date. The net Purchase Price shall be payable pursuant to Section 2.b
hereof. Seller represents and warrants that no payoff is required to be made at
Closing with respect to Seller's obligations for assumed leases and other
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obligations for the reason that the amount of such obligations as of the Closing
Date is Zero Dollars ($-0-) as more specifically described on the Schedule of
Assumed Leases and Other Obligations attached hereto as EXHIBIT 2-A1.
The Purchase Price shall be allocated among the Assets and the Covenant Not to
Compete on a post-Closing basis with the agreed upon allocation set forth on an
Allocation Schedule to be attached hereto as EXHIBIT 2-A2. The Buyer and Seller
shall jointly prepare and agree to an allocation of the Purchase Price no later
than by September 30, 2007.
b. Method of Payment. The net Purchase Price will be paid by Buyer to
Seller on the Closing Date (or on the next banking day following the Closing
Date if all documents contemplated to be executed at Closing were fully executed
after 12:01 p.m., E.D.T., on the Closing Date) by wired funds to Seller's
designated account number as set forth on the Schedule of Wire Instructions
attached hereto as EXHIBIT 2-B.
c. Indemnity Against Creditors Claims; Limited Assumption of
Liabilities. Seller warrants and represents to Buyer that this Agreement is not
subject to any bulk sales requirements, and Seller shall indemnify Buyer against
all costs and expenses in the event Buyer is required to pay any claim, debt or
demand of or against Seller relating thereto. The Seller represents that, as of
the Closing Date, there are no liens, encumbrances or security interests on any
of the Assets. Notwithstanding anything contained in this Agreement to the
contrary, the Buyer expressly states that it is assuming no existing liabilities
or obligations of any kind in connection with its purchase of the Assets except
for the obligations of Seller after August 31, 2007 under that certain Business
Lease dated February 21, 2005 (pertaining to the building space having a street
address of 000 Xxxx 00xx Xxxxxx, Xxxx X, Xxxxxx, Xxxxxxxx 80216), between the
Seller and Xxxxx North Enterprises, LLC (the "Denver Landlord"), a copy of which
is attached hereto as part of EXHIBIT 2-C, with such assumption contingent upon
the execution by the Seller of that certain related Assignment of Lease dated as
of September 1, 2007, and the execution by the Denver Landlord of that certain
related Landlord's Consent.
3. Effective Date; Closing Date. The effective date for the transactions
contemplated under this Agreement will be 12:01 a.m. on September 1, 2007 (the
"Effective Date"). The date upon which this Agreement and the other documents
contemplated hereby are to be executed by the parties hereto or thereto is
hereinafter referred to as the "Closing" or "Closing Date." Closing shall take
place at such time and place or in such a manner as may be agreed upon by the
parties. Buyer shall be entitled to the Included Revenues and to all other
revenues generated by the Assets on and after the Effective Date.
4. Instruments of Conveyance and Transfer. At the Closing:
a. The Seller will deliver to the Buyer on the Closing Date, such
bills of sale, assignments and other good and sufficient instruments of
conveyance and transfer in form sufficient to sell, assign and transfer the
Assets, such documents to contain full warranties of title, and which documents
shall be effective to vest in the Buyer good, absolute, and marketable title to
the Assets of the Business being transferred to the Buyer by Seller, free and
clear of all liens, charges, encumbrances and restrictions of any kind.
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b. Simultaneously with such delivery, the Seller will take all steps
as may be requisite to put the Buyer in actual possession, operation and control
of the Assets to be transferred hereunder.
5. Sales and Transfer Taxes Fees. All applicable sales, transfer, use,
filing and other taxes and fees that may be due or payable as a result of the
conveyance, assignment, transfer or delivery of the Assets of the Business to be
conveyed and transferred as provided herein, whether levied on the Seller or the
Buyer, shall be borne by the Buyer, and the Buyer indemnifies the Seller in the
event the Seller incurs expenses pertaining to such taxes and fees.
6. Certain Seller Covenants Through the Closing Date; Certifications of
Seller at Closing.
a. Certain Seller Covenants Through the Closing Date. From July 31,
2007 until the Closing Date, the Seller: (i) used Seller's best efforts to
conduct the Business in a reasonable and prudent manner in accordance with past
practices; (ii) did not engage in any transactions out of the ordinary course of
business; (iii) used Seller's best efforts to preserve the existing business
organization of the Seller and the Seller's relations with its employees,
customers, franchisors, suppliers and others with whom it has a business
relationship; (iv) used Seller's best efforts to preserve and protect the
Seller's Assets; (v) did not sell, encumber or dispose of any of Seller's
assets, except such as are retired or replaced in the ordinary course of
business; (vi) conducted Seller's business in compliance with all applicable
laws and regulations; (vii) did not make any distributions to any of the
shareholders or unit holders of the Seller, or make either interest or principal
payments on shareholder, unit holder or related party notes or loans, or make
any other withdraws other than in the ordinary course of business, unless
disclosed to and approved in writing by the Buyer; (viii) did not pay any
bonuses or make any salary or wage increases to employees of the Seller, unless
disclosed to and approved by the Buyer; and (ix) took no actions which might be
adverse to the interests of the Seller, the Buyer, or the Business.
b. Certifications of Seller At Closing. The Seller hereby certifies
that, during the period from July 31, 2007 through the Closing Date:
i. There has been no material deterioration or other material
adverse effect to the Assets being acquired or operating
results of Seller and there has been no material adverse
change in the financial affairs of Seller which has not been
disclosed to the Buyer in writing prior to the Closing Date
and that none is anticipated subsequent to the Closing Date.
ii. Seller has all permits, licenses, consents, certificates and
approvals required by all federal, state and local
governmental agencies to operate its businesses and to use
its assets for the intended purposes of such assets.
iii. Except as disclosed in the exhibits hereto, there are no
management, service, supply, maintenance or other contracts
or
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agreements which are applicable to or affect the assets of
the Seller or the operation of the Business.
7. Representations and Warranties by Seller. The Seller represents and
warrants to Buyer that each of the following representations and warranties is
true and correct as of the Effective Date and again as of the Closing Date, and
are made with the full understanding that such representations and warranties
constitute a material inducement to Buyer to enter into the transactions
contemplated hereby:
a. Organization of Seller; Qualification; Power and Authority. The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite corporate power and
authority to carry on its business as presently conducted, and is registered or
qualified to do business in all jurisdictions where the nature of its business
requires such registration or qualification, except where failure to be so
qualified could not have a material adverse affect on the Business, the Assets
or its results of operations, prospects or conditions (financial or otherwise).
The Seller is not in default under any provisions of its Articles of
Incorporation, as amended, or its By-laws, as amended. The Seller has no
subsidiaries and has no direct or indirect equity interest in any other firm,
corporation, company or business enterprise. Xxxxxx X. Xxxxxxxxxx is the
President and a Director of the Seller. Xxxx X. Xxxxxxxxx is the
Secretary/Treasurer and a Director of the Seller. Arcadia Products, Inc., a
Delaware corporation, is the sole stockholder of the Seller and is the holder of
all of the equity ownership interest in the Seller. Arcadia Resources, Inc., a
Nevada corporation, is the ultimate parent corporation of Arcadia Products, Inc.
b. Corporate Acts and Proceedings; Valid and Binding Obligations. The
sale and transfer of the Assets by the Seller, as provided for in this
Agreement, have been approved and consented to by the Board of Directors of the
Seller, and all actions required by any applicable law by the stockholders of
the Seller, if any, with regard to such sale or transfer of the Assets by
Seller, have been appropriately authorized and accomplished. This Agreement and
all other agreements contemplated hereby have been duly and validly executed and
delivered by Seller and, assuming this Agreement and the agreements contemplated
hereby constitute the valid and binding obligation of Buyer, will constitute
valid and binding obligations of Seller enforceable against Seller in accordance
with each agreement's terms, except to the extent that such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
c. Related Party Obligations; Certain Distributions.
i. Except as set forth in the Schedule of Related Party
Obligations and Certain Distributions attached hereto as EXHIBIT 7-C, there are
no outstanding or unpaid loans or other obligations to or from stockholders,
members, unit holders, directors, officers, managers or any other affiliate or
related entity, except for compensation paid by the Seller to employees in the
ordinary course of business.
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ii. Except as set forth in the Schedule of Related Party
Obligations and Certain Distributions attached hereto as EXHIBIT 7-C, the Seller
has not made any payments, dividends or other distributions to any stockholders,
members, unit holders, directors, officers, managers or any other affiliate or
related entity between July 31, 2007 and the Closing Date.
d. Financial Statements. Seller has furnished Buyer with balance
sheets of the Seller (collectively, the "Balance Sheets") dated December 31,
2006, January 31, 2007, February 28, 2007, March 31, 2007, April 30, 2007, May
31, 2007, June 30, 2007 and July 31, 2007 (the July 31, 2007 date is sometimes
herein referred to as the "Last Balance Sheet Date"), and the related statements
of income for the Seller (collectively, the "Income Statements") for the periods
ended December 31, 2006, January 31, 2007, February 28, 2007, March 31, 2007,
April 30, 2007, May 31, 2007, June 30, 2007 and July 31, 2007, copies of which
are attached hereto as EXHIBIT 7-D (the Balance Sheets and Income Statements are
collectively referred to herein as the "Financial Statements"). The Financial
Statements: (i) are in accordance with the books and records of the Seller; (ii)
fairly represent the financial condition of the Seller at such date and the
results of its operations for the periods specified; (iii) were prepared on a
basis consistent with prior accounting periods; (iv) with respect to all
contracts and commitments of the Seller, reflect adequate reserves for all
reasonably anticipated losses and costs in excess of anticipated income; and (v)
with respect to the Balance Sheets, disclose all of the debts, liabilities and
obligations of any nature (whether absolute, accrued, contingent, or otherwise)
of the Seller at the Last Balance Sheet Date and include the appropriate
reserves for all taxes and other accrued liabilities, except that certain
contingent liabilities, if not disclosed on the Balance Sheets, shall be
considered to be disclosed pursuant to this subsection, if disclosed on an
Exhibit to this Agreement. The Seller covenants and agrees to deliver to Buyer,
post-Closing, the balance sheet of the Seller and the related statement of
income for the month ended August 31, 2007, promptly following completion of
such financial statements by Seller but in no event later than September 30,
2007.
e. Existing Obligations. All of the debts, liabilities and obligations
of the Seller are listed on the Schedule of Liabilities attached hereto as
EXHIBIT 7-E and such schedule accurately reflects all of the Seller's "Existing
Obligations" (as hereinafter defined) as of the Closing Date. The term "Existing
Obligations" shall mean and refer to all of the Seller's debts, liabilities and
obligations of any nature (whether absolute, accrued, contingent, or otherwise)
on the Closing Date, including but not limited to any and all accounts payable,
trade payables, lease obligations, indebtedness for borrowed money, accrued
interest, contractual obligations, etc. The Seller warrants and represents that
the aggregate amount of the Existing Obligations is not in excess of Zero
Dollars ($-0-) as of the Closing Date. The Seller acknowledges that the purchase
price for the Assets is based on the accuracy of Seller's representations and
warranties contained in this Agreement, including but not limited to the
Seller's representations and warranties contained in this subsection. Seller
shall continue to be liable for all Existing Obligations and shall pay in full,
no later than the Closing Date, any and all Existing Liabilities including any
Existing Obligations which encumber any of the Assets. Promptly upon payment of
any Existing Obligations which encumber any of the Assets, Seller shall obtain
and cause to be filed of public record, all releases and terminations necessary
to extinguish all liens of record encumbering the Assets.
f. Undisclosed Liabilities. The Seller has no debt, liability or
obligation of any kind (and, to the knowledge of Seller, there are no facts in
existence as of the Closing Date
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that could reasonably be expected to result in any present or future action,
suit, proceeding, hearing, investigation, charge, complaint, claim or demand
against the Seller that would give rise to any debt, liability or obligation),
whether accrued, absolute, contingent or otherwise, including, without
limitation any liability or obligation on account of taxes or any governmental
charge or penalty, interest or fine, except liabilities incurred after July 31,
2007 in the ordinary course of business that did not, individually or in the
aggregate, have a material adverse effect on the Business, assets, results of
operations, prospects or condition (financial or otherwise) of the Seller as of
the Closing Date.
g. Present Status. Except as disclosed on the Schedule of Exempted
Transactions attached hereto as EXHIBIT 7-G, since July 31, 2007, the Seller has
not made any expenditures nor incurred any obligations or liabilities, except in
the ordinary course of business; discharged or satisfied any liens or
encumbrances, except in the ordinary course of business; declared or made any
payment or distribution to any of the stockholders of Seller or purchased or
redeemed any of its common capital stock or ownership units or agreed to do so;
mortgaged, pledged or subjected to lien or encumbrance any of its assets; sold
or transferred any assets, except in the ordinary course of business; suffered
any damage or loss (whether or not covered by insurance), materially affecting
its properties; waived any rights of substantial value; nor entered into any
transaction other than in the ordinary course of business.
h. Tax Returns and Audits. The Seller has duly filed all Federal,
State and local tax returns required to be filed by, or with respect to, the
Seller, and has paid the taxes for all periods covered by such returns. The
Seller has not been delinquent in the payment of any tax, assessment or
governmental charge. The Seller has not had, and, to the knowledge of the
Seller, there are no facts in existence as of the Closing Date that could
reasonably be expected to result in, any tax deficiencies proposed or assessed
against it and has not executed any waiver of the statute of limitations on the
assessment or collection of any tax. The Seller's Federal and State tax returns
have never been audited by the Internal Revenue Service or the Department of
Revenue of the State of Colorado. Copies of the Seller's Federal Income tax
return for the periods ending March 31, 2005 and March 31, 2006, are attached
hereto as EXHIBIT 7-H. The Seller is not a party to any tax sharing agreements
with any other affiliates. The Seller covenants and agrees to deliver to Buyer,
post-Closing, the Seller's Federal Income tax return for the twelve (12) month
tax period ending March 31, 2007, promptly after the same is filed with the
Internal Revenue Service.
i. Litigation. Except as disclosed on the Schedule of Litigation and
Other Legal Proceedings attached hereto as EXHIBIT 7-I, there are no legal
actions, suits, arbitrations, or other legal, administrative, or other
governmental proceedings pending or, to the knowledge of Seller, threatened
against the Seller, which, if adversely determined, could reasonably be expected
to, individually or in the aggregate, materially impair the right of the Seller
to carry on the Business substantially as now being conducted or would result in
a material adverse effect on the business, assets, results of operations,
prospects or conditions (financial or otherwise) of the Seller, and Seller is
not aware of any facts or circumstances which to the knowledge of Seller may
(with or without notice or lapse of time) reasonably give rise to, serve as a
basis for or result in any such action, suit, claim, arbitration, or other
proceedings against or involving the Seller.
j. Compliance With Articles, Bylaws and Other Instruments and Laws;
Noncontravention. The Seller is not in violation of any provisions of, nor will
the performance
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of this Agreement by the Seller violate, its Articles of Incorporation, as
amended, its Bylaws, as amended, or any indebtedness, mortgage, contract, lease
or other agreement or commitment. The business and operation of the Seller have
been and are being conducted in accordance with all applicable laws, rules and
regulations of all authorities, except those which do not (either individually
or in the aggregate) materially and adversely affect the Seller or its
properties, assets, businesses or prospects. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) to the knowledge of the Seller, violate any
constitution, statute, regulation or rule, (ii) violate any injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject or (ii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Seller is a party or by which it
is bound or to which any of the Assets are subject (or result in the imposition
of any lien or encumbrance upon any of the Assets). The Seller does not need to
give any notice to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency in order for the parties to
consummate the transactions contemplated by this Agreement. The Seller is in
full compliance, in all material respects, with all applicable environmental
laws governing the Seller and the Business.
k. Title to Property and Assets. The Seller has good, absolute and
record title to, or a valid leasehold interest in, the Assets being sold by the
applicable Seller (including but not limited to all property and assets of the
Seller used by the Seller in the Business, located on its premises, shown on the
Last Balance Sheet or acquired through the Closing Date), free and clear of all
liens, charges, claims and encumbrances. The Assets of the Seller on the Closing
Date shall not be required to include cash, bank deposits, certain accounts
receivable and other items more particularly described on the Schedule of
Excluded Assets attached hereto as EXHIBIT 1-C3 hereof.
l. Asset Condition and Quality. The Assets are free of defects and,
with respect to any Assets which are mechanical in nature, are in good working
order, condition and repair, except for ordinary wear and tear. All of the
Assets on the Closing Date shall conform in all material respects with all
applicable ordinances, regulations, zoning and other laws.
m. Contracts. The Schedule of Contracts attached hereto as EXHIBIT 7-M
sets forth a true and complete list of all contracts, agreements and commitments
(whether written or oral) to which the Seller is, directly or indirectly, a
party (in its own name or as a successor in interest), or by which the Seller or
any of its properties or assets is otherwise bound, including any service
agreements, customer agreements, supplier agreements, agreements to lend or
borrow money, stockholder agreements, employment agreements (collectively, the
"Contracts"). Neither the Seller nor, to the knowledge of Seller, any other
party to any of the Contracts (i) is in default under (nor does there exist any
condition that, with notice or lapse of time or both, would cause such a default
under) any of the Contracts, or (ii) has waived any right it may have under any
of the Contracts, the waiver of which would have a material adverse effect on
the business, assets, results of operations, prospects or condition (financial
or otherwise) of the Seller. All of the Contracts (i) constitute the legal,
valid, binding and enforceable obligations of the Seller, and, to the knowledge
of Seller, of the other parties thereto, enforceable against the Seller and, to
the knowledge of Seller, such other parties in accordance with their respective
terms, (ii) do not require
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any third party consents in anticipation of the execution this Agreement and the
consummation of the transactions contemplated hereby and (iii) will not be
terminated or otherwise modified, solely as a result of the consummation of the
transactions contemplated hereby.
n. Leases and Insurance Policies.
i. The Schedule of Leases and Insurance Policies attached hereto
as EXHIBIT 7-N and by this reference made as part hereof, sets forth all
leases and insurance policies executed by or issued for the benefit of the
Seller. The Seller has delivered to the Buyer:
A. The originals of all leases, with amendments, to which
the Seller is a party; and
B. The originals of all fire and other casualty and
liability policies (including product liability) of the Seller in
effect at the date of this Agreement (the "Insurance Policies"). All
Insurance Policies are in full force and effect as of the Closing Date
and are in amounts and against such losses and risks as are described
in such Insurance Policies. Seller shall assist Buyer in transferring
the coverage of the Insurance Policies to Buyer for Buyer's benefit
(and at Buyer's expense with respect to premiums due after the Closing
Date) until such time as Buyer can replace the Insurance Policies with
coverage obtained by Buyer. All inventories, buildings and fixed
assets owned or leased by Seller are and will be adequately insured
against fire and other casualty through the Closing Date.
ii. The Seller represents and warrants that the Seller is not in
default in the performance of any of its respective obligations under any
leases, that no lease is encumbered by any prior transfer, assignment, or
any other encumbrance by Seller, and that the Seller has the full and
lawful authority to transfer its interest in and obligations under the
leases to the Buyer.
o. Intellectual Property. The Seller owns, possesses and has good
title to all trademarks, service marks, service names, patents and licenses
necessary in the conduct of the Business, and all trademarks, service marks,
service names, patents and licenses of the Business are included in the Assets
being transferred to Buyer pursuant to this Agreement.
p. Records. The Seller shall deliver on the next business day after
the Closing, such books and records as are necessary for the Buyer to operate
the Assets and to carry on the Business.
q. Inventory and Fixed Assets; Motor Vehicles. The information
contained on the Schedule of Inventory and Fixed Assets, attached hereto as
EXHIBIT 1-A, and on the Schedule of Motor Vehicles, attached hereto as EXHIBIT
1-B, is accurate and complete.
r. Patient's List. The Patients' List of the Business attached hereto
as EXHIBIT 1-C2 accurately and completely lists all of the patients of the
Seller. Seller shall deliver on the next business day after Closing (or on the
day of Closing if reasonably practicable): (i) all
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patient documents, correspondence and charts; (ii) all information necessary to
properly invoice all services to, to collect any amounts owed from and to
provide services to, such patients; and (iii) all certificates of medical
necessity pertaining to such patients. All patients of the Seller who have
received pharmacy products or services from any entity related in any way to
Arcadia Resources, Inc., including but not limited to SSAC, LLC d/b/a Arcadia
RX, a Florida limited liability company ("Arcadia RX") with pharmacy business
operations in the State of Kentucky, are included and listed on the Patients'
List of the Business, and Seller and each such entity providing pharmacy
products and services has delivered to Buyer not later than the Closing Date,
all information necessary to properly invoice all pharmacy products and services
to, to collect any amounts owed from and to provide pharmacy products and
services to, such patients, including but not limited to original prescriptions
(to the extent permitted by applicable law), valid transfers of the remaining
refills of all active prescriptions for such patients, and copies of the
original physician orders and statements of medical necessity pertaining to such
patients; however, Seller recommends that Buyer obtain new valid physician
orders for those prescriptions filled prior to the Closing Date, and in the
event Buyer takes action to obtain such new valid physician orders, the Seller
and Arcadia RX (in its Non-Competition and Non-Solicitation Agreement) agree to
reasonably assist Buyer in the effort. Seller agrees not to process any
prescriptions for any such patients on and after the Closing Date.
s. Personnel; Payrates; Employment and Non-Compete Agreements; and
Employee Benefits
i. The information contained on the Schedule of Personnel,
Payrates and Employment and Non-Compete Agreements, attached hereto as
EXHIBIT 7-S1, is accurate and complete, and sets forth a list of all
employees of the Seller, the current salary level of each, whether each
such listed employee has in place any employment agreement and whether each
such listed employee has in place any non-compete and/or non-solicitation
agreements. There is not pending or, to the knowledge of Seller,
threatened, nor are there any facts in existence as of the Closing Date
that could reasonably be expected to result in, any legal actions, suits,
arbitrations or other legal, administrative or other governmental
proceedings by any employee against the Seller, which, if adversely
determined, could reasonably be expected to, individually or in the
aggregate, materially impair the right of the Seller to carry on the
Business substantially as now being conducted or would result in a material
adverse effect on the business, assets, results of operations, prospects or
conditions (financial or otherwise) of the Seller.
ii. The information contained on the Schedule of Certain
Retirement and Other Benefits, attached hereto as EXHIBIT 7-S2, is accurate
and complete, and sets forth a description of any plans providing pensions,
profit-sharing, insurance benefits or any other similar type of fringe
benefits to which the Seller is a party or committed either orally, in
writing or by law, or to which provide any benefit to the Seller or the
Seller's employees, including all employee benefit plans ("Employee Benefit
Plans"), as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), established by the Seller or to
which the Seller contributes or is or has been required to contribute. The
Seller has never maintained any plan or arrangement for providing medical
or non-pension benefits to terminated or retired employees or their
dependents. The Employee Benefit Plans and the related trusts comply and
have complied in all material respects with the provisions of ERISA
and all other applicable laws, rules and regulations,
10
and all necessary governmental approvals for the Employee Benefit Plans
have been obtained, including, without limitation, qualification of the
Employee Benefit Plans under the Internal Revenue Code of 1986, as amended.
The Employee Benefit Plans have been administered to date in compliance
with the requirements of ERISA. True and complete copies of all reports or
other documents filed with the Internal Revenue Service or the Department
of Labor with respect to the Employee Benefit Plans have been delivered by
the Seller to Buyer. Since December 31, 1974, no fiduciary of the Employee
Benefit Plans has engaged in any "prohibited transaction" (as defined in
ERISA), no "reportable event" (as defined in Section 4043(b) of ERISA) has
occurred with respect to the Employee Benefit Plans and there is no
unfunded vested liability with respect to the Employee Benefits Plans. The
Seller (and any entity within the same group of trades or businesses under
common control, within the meaning of ERISA Section 4001(b)(1), as the
Seller) does not have and has not had a material liability under Title IV
of ERISA, which has not been paid in full.
t. Real Estate. The building occupied by the Business in Denver,
Colorado (the "Leased Premises"), and the use thereof for the Seller's Business,
comply in all material respects with all applicable Federal, state and local
laws, ordinances and regulations, including, without limitation, building and
zoning laws and OSHA regulations, and neither the Seller nor any stockholder,
director, officer or employee of Seller has received any notice from any
governmental authority or any insurance rating bureau that the Leased Premises
or the use thereof for the Seller's business do not so conform. All rent and
other charges owed by the Seller with respect to the Leased Premises for all
periods prior to the Closing Date have been paid in full.
u. Environmental Matters. To the knowledge of Seller, the real
property on which the Leased Premises are located (including surface water,
groundwater, and any existing improvements) do not contain any asbestos,
material amounts of waste or debris, or contamination in excess of permissible
levels under applicable law, including, without limitation: (i) any 'hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976, as
amended from time to time, and regulations promulgated thereunder; (ii) any
"hazardous substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, and
regulations promulgated thereunder; and (iii) any substance the presence of
which is prohibited or regulated by any federal, state or local law, ruling,
rule or regulation similar or dissimilar to those set forth in this Section 7.u,
other than such products as are used in the Business in the ordinary course
thereof.
v. Brokers. Seller and Buyer agree that all negotiations relative to
this Agreement and the transactions contemplated hereby have been carried on
directly between Buyer and Seller without the intervention or assistance of any
party (other than to provide accounting or legal counsel), except for Xxxxxx
Xxxxxxxx & Associates, Inc. No party to this Agreement, nor any third party, has
any right or claim to any commission, brokerage fee or other compensation
relative to this Agreement or the transactions contemplated hereby, except for
the SRA Commission Obligation due Xxxxxx Xxxxxxxx & Associates, Inc. Seller
authorizes Buyer to deliver to Xxxxxx Xxxxxxxx & Associates, Inc., via a wire
transfer pursuant to wire transaction instructions delivered to Buyer by Xxxxxx
Xxxxxxxx & Associates, Inc., the amount of the SRA Commission Obligation, which
payment is to be deducted from the Purchase Price payable pursuant to Section
2.a hereof.
11
w. Absence of Certain Changes or Events. Since July 31, 2007, there
has not been any change in or any event or condition (financial or otherwise)
affecting the properties, assets, liabilities, operations or prospects of the
Seller other than changes in the ordinary course of its business, none of which
has (either when taken by itself or when taken in conjunction with all other
such changes) been materially adverse.
x. Adverse Business Developments. Neither the Seller nor any
stockholder, director, officer or employee of Seller has received, either orally
or in writing, any notice of pending or threatened adverse action with respect
to any Medicare, Medicaid, private insurance or third party payer reimbursement
method, practice or allowance as to any business activity engaged by Seller, nor
has the Seller or any stockholder, director, officer or employee of Seller
received nor been threatened with any claim for refund in excess of $500 by a
Medicare or Medicaid carrier, except as disclosed in the Schedule of Adverse
Business Developments attached hereto as EXHIBIT 7-X.
y. Accounts Receivable. Seller has followed in all respects and
aspects at all times through the Effective Date, and commits to follow in all
respects and aspects at all times on and after the Effective Date, all Medicare
guidelines and procedures relating to the Seller's accounts receivable, and
Seller agrees to use consistent guidelines, collection approaches and collection
procedures, which are no more aggressive than Seller has used in the past,
relating to the collection of such accounts receivable. Notwithstanding anything
contained in this Agreement to the contrary, any Medicare refunds or recoupments
on accounts receivable generated or created prior to the Effective Date shall be
the responsibility of Seller and its ultimate parent corporation, Arcadia
Resources, Inc., and their successors and assigns.
z. Disclosure. No representation or warranty by Seller in this
Agreement or in any Exhibit hereto contains or will contain as to the applicable
representation and warranty any untrue statement of a material fact, or omits or
will omit to state any material fact required to make the statements herein or
therein contained, in light of the circumstances in which it was made, not
misleading.
8. Representations and Warranties by the Buyer. The Buyer represents and
warrants to the Seller that each of the following representations and warranties
is true and correct as of the Effective Date and again as of the Closing Date:
a. Organization of the Buyer. Buyer is a duly organized, validly
existing corporation in good standing under the laws of the State of Colorado
and has full power and authority to consummate the transactions contemplated by
this Agreement. Buyer has all requisite corporate right, power and authority to
enter into this Agreement and consummate the transactions contemplated hereby.
b. Authorization; Consents; Valid and Binding Obligation. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by the Buyer have been duly and validly
authorized and approved by all necessary corporate action on behalf of the
Buyer. No approvals, authorizations or consents are necessary to permit the
Buyer to enter into this Agreement and consummate the transactions contemplated
hereby. This Agreement constitutes the valid and legally binding obligation of
the Buyer enforceable against the Buyer in accordance with its terms, except to
the extent that enforcement may be
12
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity.
c. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) to the knowledge of the Buyer, violate any constitution, statute, regulation
or rule, (B) violate any injunction, judgment, order, decree, ruling, charge, or
other restriction of any government, governmental agency, or court to which the
Buyer is subject or, any provision of the Buyer's charter or bylaws, or (C)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Buyer is a party or by which it is
bound or to which any of its assets is subject.
d. Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly between Buyer and
Seller without the intervention or assistance of any party), except for Xxxxxx
Xxxxxxxx & Associates, Inc. No party to this Agreement, nor any third party, has
any right or claim to any commission, brokerage fee or other compensation
relative to this Agreement or the transactions contemplated hereby, except for
commissions due Xxxxxx Xxxxxxxx & Associates, Inc., which commissions shall be
paid for by Seller and not by Buyer.
e. Disclosure. No representation or warranty by the Buyer in this
Agreement contains or will contain as to the applicable representation and
warranty any untrue statement of a material fact or omits or will omit to state
any material fact required to make the statements herein contained, in light of
the circumstances in which it was made, not misleading.
9. Conditions Precedent to Closing by Buyer. The obligation of the Buyer to
consummate this Agreement on the Closing Date is subject to and conditioned upon
the satisfaction, at or prior to the Closing Date, of each of the following
conditions:
a. Compliance with Agreement. All of the terms and conditions of this
Agreement to be complied with and performed by the Seller on or before the
Closing Date, shall have been complied with and performed; and
b. Representations and Warranties. The representations and warranties
of the Seller in Section 7 shall be deemed to have been made again on the
Closing Date and then be true and correct, subject to any changes contemplated
by this Agreement. There shall have been no materially adverse change in the
financial condition of the Seller; and
c. Non-Competition and Non-Solicitation Agreements. Arcadia Products,
Inc., a Delaware corporation, Arcadia Resources, Inc., a Nevada corporation,
Beacon Respiratory Services of Georgia, Inc., a Delaware corporation, Beacon
Respiratory Services of Alabama, Inc., a Delaware corporation, and SSAC, LLC
d/b/a Arcadia RX, a Florida limited liability company with pharmacy business
operations in the State of Kentucky shall each have entered into a
non-competition and non-solicitation agreement substantially in the applicable
forms attached hereto as EXHIBIT 9-C, and Seller shall have delivered executed
originals of such agreements to Buyer on or before the Closing Date. Also, in
the event any employee of the
13
Seller shall have entered into any non-compete, non-solicitation and/or
non-disclosure agreements with Seller, Seller shall assign to Buyer, and hereby
does assign to Buyer, all of Seller's rights under such agreements; and
d. Lease Assignment. Seller shall have entered into the Assignment of
Lease described in Section 2(c) hereof, and the Denver Landlord shall have
executed a Landlord's Consent in form and substance acceptable to Buyer; and
e. Guaranty Agreements. Arcadia Products, Inc. and Arcadia Resources,
Inc. shall each have executed a Guaranty Agreement substantially in the
applicable forms attached hereto as EXHIBIT 9-E, and Seller shall have delivered
executed originals of such agreements to Buyer on or before the Closing Date;
and
f. Third Party Consents and Approvals. The Seller shall have obtained
all third party consents and approvals required to transfer the Assets.
10. Survival of Representations and Warranties. The representations and
warranties of Seller and Buyer contained and made pursuant to this Agreement
shall survive the execution of this Agreement for a period of eighteen (18)
months from the Closing Date, except that the Seller's representations,
warranties and covenants set forth in Section 7.y hereof shall survive for an
indefinite period.
11. Covenants Not to Compete of the Seller. The Seller agrees that it will
not:
a. Confidentiality. Directly or indirectly disclose to any person or
entity for any reason or purpose, any confidential or proprietary information
pertaining to the Seller, including, without limitation, patient lists, pricing
information, procedure manuals, employee records, patient records, sales and
marketing techniques, computer programs, the identity of specialized
consultants, and management strategies. This confidential or proprietary
information was developed by the Seller at considerable expense and is being
purchased by Buyer pursuant to this Agreement. It is, therefore, a unique and
valuable asset of Buyer, and the remaining confidentiality of such information
is of extreme importance to Buyer.
b. Non-Competition. For a period of sixty (60) months from the
Effective Date, directly or indirectly own, manage, operate, join, control or
participate in the ownership, management, operation or control of, or be
connected with, any durable medical equipment business, respiratory therapy
business or any other business operated by the Seller prior to the Effective
Date, within the State of Colorado (collectively, the "Restricted Area")
c. Non-Solicitation. For a period of twenty-four (24) months from the
Effective Date, directly or indirectly solicit, seek or accept business from, or
interfere with or endeavor to entice away from Buyer or any of Buyer's
affiliated entities, whether on Seller's behalf or on behalf of any other person
or entity: (i) any former employee of the Seller located in the State of
Colorado who was hired by Buyer or any of Buyer's affiliated entities, or (ii)
any patient listed on the Patients' List of the Business or other patient
located in the State of Colorado who are subsequently acquired through the
operation of the Business by Buyer or any of Buyer's affiliated entities. By way
of illustration and not limitation, any direct or indirect contact by Seller or
on Seller's behalf or on behalf of any other person or entity of any patient
14
listed on the Patients' List of the Business through any method of communication
(including e-mail solicitations) shall be a violation of this subsection.
d. Non-Disparagement. Criticize or make any disparaging remarks about
the Buyer, or any of its directors, officers, shareholders, advisors or other
employees. Neither will the Buyer criticize or make any disparaging remarks
about the Seller, or any of its directors, officers, shareholders, advisors or
other employees.
The Seller acknowledges that a breach of Sections 11.a through 11.c hereof will
give rise to irreparable and continuing injury to Buyer, and further agrees that
the remedy at law for any breach by the Seller of the foregoing will be
inadequate and that Buyer shall be entitled to injunctive relief and
reimbursement from the Seller for all costs and expenses, including reasonable
attorneys' fees and court costs, incurred by Buyer in connection with the
enforcement of this Covenant Not to Compete. If any provisions of this section
shall be held invalid, the Seller agrees that such provisions shall be severed
and the balance thereof shall remain valid and enforceable. In the event that a
court of competent jurisdiction determines that the scope of business restricted
or the time or geographic limitations imposed are too broad to be capable of
enforcement, the Seller agrees that such court may ignore such provisions and
instead enforce the provisions as to such scope, time and geographical area as
the court deems proper. This Covenant Not to Compete shall be governed by the
laws of the State of Florida and any action involving this Covenant Not to
Compete shall be brought in the court of appropriate jurisdiction in Orange
County, Florida.
12. Indemnification; Remedies.
a. Indemnification by Seller. The Seller shall and hereby agrees to
indemnify, defend and hold harmless at all times, the Buyer and its respective
directors, officers, employees, agents and assigns, as to and against any
Damages (as hereinafter defined) resulting from: (i) any inaccurate
representation made by Seller in or under this Agreement; (ii) breach of any
representations or warranties made by Seller in or under this Agreement; (iii)
breach or default in the performance by Seller of any of the covenants to be
performed by Seller hereunder; and (iv) any claim, debt, liability or obligation
of the Seller of any kind (whether known or unknown, accrued, absolute,
contingent or otherwise) which becomes known, is uncovered or arises on or after
the Closing Date but which pertains to any actions, omissions, debts,
liabilities or obligations related to or arising from the operation of the
Business before the Closing Date.
b. Indemnification by the Buyer. The Buyer shall and hereby agrees to
indemnify, defend and hold harmless at all times Seller and its respective
directors, officers, employees, agents and assigns, as to and against any
Damages resulting from: (i) any inaccurate representation made by the Buyer in
or under this Agreement; (ii) breach of any warranties made by the Buyer in or
under this Agreement; (iii) breach or default in the performance by the Buyer of
any of the covenants to be performed by the Buyer hereunder;; and (iv) the
non-payment of any liabilities which arise from the operation of the Business
after the Closing Date.
c. Damages. The term "Damages" as used herein, shall include any
demands, claims, actions, deficiencies, losses, delinquencies, defaults,
assessments, fees, costs,
15
taxes, expenses, debts, liabilities, obligations, penalties and damages,
including counsel fees incurred in investigating or in attempting to avoid the
same or oppose the imposition thereof.
d. Remedies. In the event any party (the "Indemnified Party") provides
written notice to the other party (the "Indemnifying Party") of the Indemnified
Party's desire to assert a claim of indemnification under this Section 12, the
parties hereto shall, during the ten (10) day period immediately following the
receipt of such written notice by the Indemnifying Party, seek to resolve such
claim of indemnification. In the event the parties cannot resolve such claim of
indemnification within such ten (10) day period, the dispute over the validity
of such claim (the "Dispute") shall be settled by arbitration, with the
non-prevailing party bearing all of the prevailing party's costs of arbitration.
In the event an arbitration is required pursuant to this subparagraph, the
parties hereto will each select an arbitrator within the next ten (10) day
period; those two arbitrators will then select a third arbitrator; and the three
arbitrators so chosen will resolve the Dispute, and such resolution shall bind
the parties hereto. If either party hereto delays in appointing an arbitrator
when required, and twenty (20) days or more has elapsed, the arbitrator
appointed by the other party shall arbitrate the dispute.
13. Use of Corporate Name. The Seller hereby transfers all of the Seller's
right, title and interest in and to the corporate name "Beacon Respiratory
Services of Colorado, Inc." and, upon the written request of Buyer, the Seller
shall execute and deliver to Buyer, within fifteen (15) days after such written
request, any and all documents reasonably necessary to change its corporate name
to another corporate name which will not be confused with its existing corporate
name; provided, however, during a one (1) year period commencing on the Closing
Date, the Buyer consents to Seller continuing to use the corporate name "Beacon
Respiratory Services of Colorado, Inc." for the sole purpose of collecting its
accounts receivable, however, if Buyer discovers that Seller is using such
corporate name for any purpose other than collecting its accounts receivable,
Buyer may revoke such consent immediately upon delivery of written notice to
Seller. Notwithstanding anything herein to the contrary, Buyer shall have the
right to use any fictitious names permitted by the State of Colorado, including
but not limited to fictitious names which contain one or more of the following
words in it: "Beacon", "Respiratory" or "Services", and regardless of whether
the fictitious names used by Buyer are substantially similar to such corporate
name, and Seller waives all rights to object to any such fictitious names used
by Buyer.
14. Prepaid Items; Deposits; Etc. All prepaid insurance premiums, rent and
utility deposits and similar items paid by or owing to the Seller by any person,
shall be considered to be part of the Assets being purchased by Buyer and shall,
upon the consummation of the transactions contemplated by this Agreement, be
considered the property of Buyer.
15. Expenses. Except as otherwise stated herein, each of the parties shall
bear all expenses incurred by it in connection with this Agreement and in
consummation of the transactions contemplated hereby or in preparation thereof.
16. Amendment and Waiver. This Agreement may be amended or modified at any
time and in all respects, or any provisions may be waived, by an instrument in
writing executed by Buyer and Seller, or either of them in the case of a waiver.
16
17. Assignment; No Third-Party Beneficiaries. Neither this Agreement nor
any right created hereby shall be assignable by the Seller or the Buyer without
the prior written consent of the other, except for an assignment by the Buyer
incident to a merger, consolidation or reorganization. Nothing in this
Agreement, expressed or implied, is intended to confer upon any person, other
than the parties hereto and their successors, any rights or remedies under or by
reason of this Agreement.
18. Notices. All notices, payments, demands and requests from one party to
the another, made pursuant to this Agreement or the transactions contemplated
hereunder, shall be in written form and shall be deemed duly given if personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or by Federal Express or other recognized next-day business
couriers, or by fax and followed by hard copy, at the following addresses:
As to Seller: Beacon Respiratory Services of Colorado, Inc.
c/o Arcadia Resources, Inc.
00000 Xxxxxxx Xxxx Xxxx.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Fax No.: 000-000-0000
With copy to: Xxxx X. Xxxxxx, Esq.
Xxxx Plant Xxxxx
500 IDS Center
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax No.: 000-000-0000
As to the Buyer: Allcare, Inc.
c/o Aerocare Holdings, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Fax No.: 000-000-0000
17
With a copy to: Xxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx X. Xxxxxx, Xx., P.L.
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxx 00000-0000
Fax No.: 000-000-0000
Notice shall be effective (i) if by registered or certified mail, or
overnight next-day business couriers, three (3) days after deposit in the U.S.
mail or with such courier, (ii) if by fax, upon confirmation of successful
transmission of such notice, and (iii) if by personal delivery, upon such
delivery. In the event that any of the named parties desire to receive notice at
another address, it shall be their responsibility to notify all of the other
parties, in writing, of the new address.
19. Choice of Law and Venue. It is the intention of the parties that the
laws of the State of Florida shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties, without giving effect to any choice or conflict of law provision or
rule. Any action involving or relating to this Agreement shall be brought in any
Federal or state court sitting in Orange County, Florida.
20. Headings. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same agreement. Facsimile signatures
may be deemed binding for this Agreement, or any modification or amendment
thereto, or any documents contemplated hereby, provided that originals of same
are delivered within a reasonable time.
22. Gender. All personal pronouns used in this Agreement shall include the
other genders whether used in the masculine or feminine or neuter gender, and
the singular shall include the plural whenever and as often as may be
appropriate.
23. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of, and be enforceable by Seller
and Buyer and their respective successors and assigns.
24. Integrated Agreement; Exhibits. This Agreement constitutes the entire
agreement between the parties hereto, supercedes any prior understandings,
agreements or representations of the parties, and there are no agreements,
understandings, restrictions, warranties, or representations between the
parties, written or oral, other than those set forth herein or herein provided
for. All of the Exhibits referenced in this Agreement are incorporated into this
Agreement by such reference thereto and made a part hereof.
25. Further Assurances. From time to time hereafter and without further
consideration, each of the parties hereto shall execute and deliver such
additional or further instruments of conveyance, assignment and transfer and
take such other actions as any of the other parties may reasonably request in
order to more effectively consummate the transactions
18
contemplated hereunder or as shall be reasonably necessary or appropriate in
connection with the carrying out of the parties' respective obligations
hereunder for the purposes of this Agreement.
26. Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant.
27. Limitation of Seller's Liability. The parties hereto acknowledge and
agree that notwithstanding anything contained within this Agreement to the
contrary, in no event shall the aggregate liability of the Seller for any and
all losses, Damages (as defined in this Agreement or otherwise), claims or other
amounts that Buyer may incur or suffer, which arises, results from, or relates
to this Agreement or any schedule, exhibit, document, agreement or instrument
furnished or to be furnished by the Seller in connection with this Agreement or
any of the transactions contemplated by this Agreement, whether based in
contract, tort or otherwise, exceed, in the aggregate, One Million Two Hundred
Thousand Dollars ($1,200,000); provided that the preceding shall not apply to
any such losses, Damages, claims or other amounts arising or resulting from
fraud or intentional misrepresentation of the Seller.
[SIGNATURE PAGE FOLLOWS]
19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first stated above.
SELLER
Signed, sealed and delivered BEACON RESPIRATORY SERVICES OF
in the presence of: COLORADO, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
-------------------------------------
BUYER
ALLCARE, INC.,
a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxx, President
-------------------------------------
20
INDEX TO EXHIBITS
BEACON RESPIRATORY SERVICES OF COLORADO, INC.
EXHIBIT DESCRIPTION
------- -----------
1-A Schedule of Inventory and Fixed Assets
1-B Schedule of Motor Vehicles
1-C1 Schedule of Intangible Assets and Telephone Numbers
1-C2 Patients' List of the Business
1-C3 Schedule of Excluded Assets
2-A1 Schedule of Assumed Leases and Other Obligations
2-A2 Allocation Schedule [TO BE PREPARED AND DELIVERED POST- CLOSING]
2-B Schedule of Wire Instructions
2-C Business Lease, including all amendments thereto (Denver Site)
7-C Schedule of Related Party Obligations and Certain Distributions
7-D Financial Statements
7-E Schedule of Liabilities
7-G Schedule of Exempted Transactions
7-H Tax Returns
7-I Schedule of Litigation and Other Legal Proceedings
7-M Schedule of Contracts
7-N Schedule of Leases and Insurance Policies
7-S1 Schedule of Personnel, Payrates and Employment and Non-Compete
Agreements
7-S2 Schedule of Certain Retirement and Other Benefits
21
EXHIBIT DESCRIPTION
------- -----------
7-X Schedule of Adverse Business Developments
9-C Forms of Non-Competition and Non-Solicitation Agreements of Arcadia
Products, Inc., Acadia Resources, Inc., Beacon Respiratory Services of
Georgia, Inc., Beacon Respiratory Services of Alabama, Inc., and SSAC,
LLC d/b/a Arcadia RX
9-E Forms of Guaranty Agreements of Arcadia Products, Inc. and Arcadia
Resources, Inc.
22
