ASSET PURCHASE AGREEMENT
Stat Anesthesia PC
THIS ASSET PURCHASE AGREEMENT ("Agreement") has been made as of this
15th day of April, 2005 by and between Stat Anesthesia P.C. (hereafter
"Seller"), an Illinois corporation in good standing, by and through Xxxxx
Xxxxxxxxx ("Xxxxxxxxx"), its President, and Omni Medical Holdings, Inc.
(hereafter "Buyer"), a Utah corporation in good standing, by and through its
President, Xxxxxx X. Xxxxx.
Whereas, the purpose of this Agreement is to set forth the conditions
under which the Seller agrees to sell and the Buyer agrees to purchase the
Seller's tangible assets, personal and mixed, and regardless of where located,
including those located at the business address of, 00000 Xxxxxxxx Xxxxxx,
Xxxxx 0-X, Xxxxxxx, XX 00000, for the price and upon the terms set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
of the parties, and in consideration of the representations, warranties,
covenants and agreements contained herein, it is hereby agreed as follows:
ASSETS BEING SOLD AND PURCHASED:
Subject to the provisions of this Agreement, Buyer hereby agrees to
purchase, and Seller hereby agrees to sell, transfer and assign to Buyer, all
of Seller's right, title and interest in and to the tangible assets of
Seller's business described hereinbelow as a going concern (the "Purchased
Assets"), including, without limitation, those tangible assets related to and
used in the operation of the business.
The personal property, tangible and intangible, specifically listed on
Exhibit A and further generally described as follows:
a) All furniture, equipment, machinery, all computers and
computer software, office supplies, phone systems, leasehold
improvements, fixtures customer lists, customer credit
information, sales records, catalogs, telephone numbers and
yellow page listings;
b) Signage wherever now located;
c) The exclusive use of the business name "Stat Anesthesia,
P.C." after Buyer's nominee has purchased the "Corporation's
Stock" (defined in the Stock Purchase Agreement-Stat
Anesthesia PC between Buyer and Pollachek of even date as
well as any trademarked or registered slogans;
d) Any other contracts between the Seller and vendors or
service providers that are in existence and which Buyer
desires to obtain for the benefit of the ongoing business,
including a customer list of prior and current customers.
e) Accounts receivable, but excluding all payments relating to
such accounts receivable received by Seller on or before
April 14, 2005 and excluding the CIGNA Corporation accounts
receivable as provided below, and including accounts
receivable for work performed but not yet invoiced.
LANSING OFFICE:
Buyer agrees to assume and continue the lease of Seller's office
facility at 00000 Xxxxxxxx Xxxxxx, Xxxxx 0-X, Xxxxxxx, XX 00000 for a period
of twenty eight (28) months from the date of the Closing.
EXCLUDED ASSETS; CIGNA ACCOUNTS RECEIVABLE:
The Purchased Assets shall exclude any cash and checks on hand at the
time of closing, including both undeposited checks and checks deposited but
not yet cleared, and any motor vehicles and trailers in the name of Pollachek
or the Seller. No accounts receivable billed to CIGNA Corporation or any of
its affiliates are assigned to Buyer under this Agreement nor is Seller's
interest assigned in any class action, law suit or other proceeding against
CIGNA Corporation that predates the Closing. If for any reason Pollachek no
longer owns all of the issued and outstanding shares of Seller at the time of
payment by or on behalf of CIGNA Corporation or any of its affiliates to
Seller, Buyer shall deliver the amount of such payment to Pollachek.
PURCHASE PRICE:
Consideration for Purchased Assets. In consideration for the Purchased
Assets and Seller's covenants herein, Buyer agrees to pay Seller at closing by
issuing Four Million (4,000,000) shares of the common stock of Seller (the
"Common Stock"), and thereafter the Revenue Bonus as provided below. Such
shares shall be represented by Seller's stock certificate issued in the name
of Pollachek.
Revenue Bonus. In addition to the Four Million (4,000,000) shares of
Common Stock above, the Buyer shall pay to Seller a revenue bonus, if any is
earned, based on the following conditions:
1) Revenue bonus payments will be made based on annual calculations
of the combined revenue of Seller, Buyer, Plum Creek Outpatient,
Inc. ("Plum Creek"), and their respective Affiliates relating to
anesthesia services and supplies in Illinois, Indiana, Michigan
and Wisconsin and in US Virgin Islands (the "Business") during the
two revenue bonus periods specified in paragraph 3) below.
2) Revenue is defined as any and all revenues from whatsoever source
derived from conducting the Business that are invoiced by anyone
or more of Seller, Buyer, Plum Creek, and their respective
Affiliates not including invoices from one of the foregoing
entities to another of the foregoing entities, less the actual or
anticipated adjustments consistent with the actual experience of
the Business for either patient, physician or insurance company
discounts or charges offs, or insurance company reimbursements.
Revenue recognition will at all times conform to "GAAP", or the
meaning customarily given in accordance with GAAP, which means at
any particular time generally accepted accounting principles as in
effect at such time. All financial computations shall be
computed in accordance with GAAP as consistently applied and using
the same method of valuation as used in the preparation of Buyer's
financial statements.
3) There are two revenue bonus periods, each one twelve months in
length, beginning April 15, 2005 and ending April 14, 2007.
4) Revenue bonuses will be paid no later than 45 days after the end
of each revenue bonus period. Interest shall accrue on any cash
component of a revenue bonus at the rate of 1% per month or part
thereof from the date the payment was due until paid in full.
5) Revenue bonus calculations will be made according to the following
schedule: Should revenue total less than $1,500,000, no bonus of
any kind will be paid for that period. For each $500,000
increment of revenue above $1,499,999, there will be a bonus
payment of $100,000, payable in cash. In addition to the cash
bonus payment, for every $500,000 increment of revenue above
$2,499,999, there will be a $100,000 payment, payable in Common
Stock of Buyer ("Bonus Shares"). This applies to each of the
twelve month revenue bonus periods individually for twenty four
months. After twenty four months, no revenue bonuses of any type
will be earned.
6) By way of example, if the twelve month revenue after closing falls
between $2,000,000 and $2,499,999 for both revenue bonus periods,
cash bonus payments would total $200,000 for each period, for a
total of $400,000 over the two year period and no payments in
stock. Should revenue fall between $3,000,000 and $3,499,999,
there would be both a cash and stock payment. Cash payments would
amount to $400,000 each period, for a total of $800,000 over two
years and Bonus Share payments would amount to $200,000 each
period, for a total of $400,000 in Bonus Shares over the two year
period.
7) The number of Bonus Shares shall be determined by dividing the
closing price of the Buyer's common shares traded on the NASDAQ
exchange the last trading day before the end of the relevant
revenue bonus period into the amount of the revenue bonus payable
in Bonus Shares.
8) Buyer shall issue all Bonus Shares in the name of Seller's
nominee, Pollachek, and, if Pollachek no longer owns the issued
and outstanding shares of Seller when a cash payment of a revenue
bonus is due, Buyer shall pay the amount of the cash payment due
to Pollachek.
9) Seller, at its own expense, shall have the right, upon reasonable
prior notice during regular business hours but no more than once
in any year, to appoint independent auditors reasonably acceptable
to Buyer and have them during normal business hours, inspect the
books and accounts of Buyer, Plum Creek and their respective
Affiliates, if any, related to the payment and calculation of
bonus payments due under this Agreement. Buyer shall cooperate
and cause Plum Creek and their respective Affiliates, if any, to
cooperate with such auditors. The auditors performing the audit
shall disclose to Seller only information relating to the accuracy
of records kept and the payments made, and shall be under a duty
to keep confidential any other information obtained from such
records. If any such audit establishes that Buyer has underpaid
or overpaid the amounts due, the amount of the discrepancy shall
be promptly paid by or refunded to the appropriate party, as
applicable. If the under payment is five percent (5%) or more
during either twelve month period, Buyer shall reimburse Seller
for its out-of-pocket expense of such audit and pay interest at
the rate for late payments under paragraph 4 above on any such
under payment from the date due until paid.
10) For the purposes of this Agreement the term "Affiliate" means any
entity that directly or indirectly through one or more
intermediates controls, is controlled by or is under common
control with a party. "Control," "controlled by" and "under
common control with" shall mean, the possession of the power to
direct or cause the direction of management and policies of the
entity, whether through the ownership of voting rights, by
contract or otherwise. An Affiliate shall include without
limitation (i) any corporation or other business entity of which
fifty percent (50%) or more of the securities or other ownership
interests representing the equity, the voting stock or general
partnership interest are owned, controlled or held, directly or
indirectly, by a party: or (ii) any corporation or business entity
which, directly or indirectly, owns, controls or holds fifty
percent (50%) or more of the securities or other ownership
interests representing the equity, the voting stock or, if
applicable, the general partnership interest of a party.
EXCLUDED LIABILITIES:
Except as expressly set forth herein, Buyer does not assume and shall
not be liable for any of the debts, obligations or liabilities of Seller or
Seller's business of any nature whatsoever for any period prior to the
Closing. In particular, but without limiting the foregoing, Buyer shall not
assume, and shall not be deemed by anything contained in this Agreement or any
other related agreement, to have assumed, and shall not be liable for any
debts, obligations or liabilities of Seller or Seller's business, whether
known or unknown, contingent, absolute or otherwise, including without
limitation debts, liabilities and obligations:
1) Under any contract or agreement to which Seller is bound excepting
the agreements listed in the attached Exhibit "B", provided,
however, Seller shall have responsibility for any such liabilities
and obligations arising prior to the closing date ,
2) For any foreign, federal, state or local income, franchise,
excise, value added, sales, use, payroll, worker's compensation,
property or other tax or taxes of any type, nature or description,
where such tax liability is customarily paid by the seller and is
based on Seller's actions or operations prior to the closing date
or as a result of this transaction, and for any liability for
local or state taxes, use or transfer tax, where such tax
liability is customarily paid by the seller and is based on
Seller's actions or operations prior to the closing date or as a
result of this transaction or taxes that may be imposed upon the
purchase and sale of the assets pursuant to the Agreement
customarily paid by the seller,
5) For any damages or injuries to persons or property or for any tort
or strict liability arising from events, actions, or inactions or
the operation of Seller's business prior to the closing date,
6) For any liability arising at any time from or relating to injuries
arising from events occurring prior to the closing date, even if a
claim for any such injury is first asserted after the closing
date,
7) For any liability or obligation (contingent or otherwise) of
Seller arising out of any litigation arising in any way on account
of the period prior to the closing date, whether or not now
threatened or pending,
8) Incurred by Seller or Seller's business for borrowed money,
9) For any other liability or obligation of Seller arising prior to
the closing date that is not expressly assumed by Buyer whether or
not such liability or obligation has been disclosed to or is known
to Buyer.
but excluding the current liabilities listed below the responsibility
for which is assumed by Buyer:
i) Current credit card debt incurred in the normal course of
business;
ii) Payables owed to employees and independent service providers such
as the Seller's office personnel and professional personnel
(Physicians, Registered Nurses, Certified Registered Nurse
Anesthetists and any other licensed personnel).
Seller further warrants to Buyer that any known accrued liabilities of
the Seller other than those excluded under i) and ii) above will be paid at or
within 30 days after closing. On or before the date of closing, Seller will
execute and provide to Buyer a statement of all known liabilities of Seller's
business.
ALLOCATION OF PURCHASE PRICE:
The purchase price shall be allocated as follows:
1) Equipment, Furniture and
other depreciable assets: 400,000 shares of Common Stock
2) Accounts receivable 3,600,000 shares of Common Stock
Treasury Regulation 1.1060-1T Reporting Requirement. The parties hereby
agree that they shall each use the allocation made by them pursuant to this
Section as an agreed allocation of the consideration paid for the Purchased
Assets in accordance with the provisions of Treasury Regulation Section
1.1060-1T, et seq. The parties each covenant and agree to use such allocation
to complete and file Internal Revenue Service Form 8594, Asset Acquisition
Statement Under Section 1060, if applicable.
CLOSING DATE:
Closing. The closing date for the transactions contemplated by this
Agreement shall be April 15, 2005 or such later date that the parties may
agree (the "Closing"). However the Closing shall be deemed to have taken
place on April 15, 2005 at one minute past midnight that day.
Obligations of Seller at Closing. At the Closing, Seller shall:
1) Execute and deliver to Buyer a Xxxx of Sale and other documents
necessary for transfer of title to all assets being purchased.
2) Execute and deliver to Buyer such other documents as may be
necessary to vest Seller's right, title and interest in and to any
location leased by Seller at the time of closing where it has done
business, all at Buyer's option.
Obligations of Buyer at Closing. At the Closing, Buyer shall deliver a
stock certificate for Four Million (4,000,000) of Common Stock..
Post-Closing Acts, Deeds and Undertakings. Following the Closing, the
parties shall fully and faithfully undertake all such further acts, deeds and
undertakings as may be necessary or required to consummate the transactions
contemplated by this Agreement in accordance with the terms herein.
CONDITIONS PRECEDENT:
Contingencies.
In the event that any of the following events occur, the parties
agree that this Agreement shall be null and void, ab-initio, to-wit: in the
event that the Seller does not obtain and provide to Seller the written
consent to assignment of any lease of Seller's existing business locations
that Buyer desires to maintain, or, in the event that the closing under the
Stock Purchase Agreement-Plum Creek Outpatient, Inc. between Buyer and Xxxxx
Xxxxxxx of the same date as this Agreement does not take place at the same
time as the Closing, or, the Buyer does not execute and exchange with
Pollachek that certain Consulting Agreement ("Consulting Agreement") of even
date, or, Seller and Buyer do not execute and exchange that certain
Administrative Services Agreement ("Administrative Services Agreement") or
Buyer and Pollachek do not execute and exchange the Stock Purchase Agreement-
Stat Anesthesia PC, both agreements dated the same date as this Agreement,
where the form of such agreements are the forms attached hereto as Exhibits
"C" through "F".
REPRESENTATIONS AND WARRANTIES:
Representations and Warranties of Seller. Seller represents and
warrants to, and covenants with, Buyer that the following statements are true,
correct and complete as of the date of this Agreement, and that the same shall
be true, correct and complete on the Closing:
1) Seller is a duly organized and validly existing corporation formed
under the laws of the State of Illinois and is in good standing in
such jurisdiction.
2) Seller has the right, power, and authority to enter into this
Agreement.
3) The execution of this Agreement by Seller and the transactions
contemplated by this Agreement have been duly authorized by all
necessary action required for such authorization by the Seller
corporation.
3) Seller is not, nor at any time will be, a party to any contract or
other arrangement of any nature that will materially interfere
with its full, due, and complete performance of this Agreement..
4) Seller is not, nor at any time will it be, in knowing violation of
any existing law, statute or regulation, by entering into and
undertaking the performance of this Agreement.
5) To the best knowledge and belief of Seller, there is no litigation
or proceeding pending, nor is any litigation threatened or pending
involving Seller which could, if adversely determined, materially
and adversely affect the performance of its obligations under this
Agreement.
Representations and Warranties of Buyer. Buyer represents and warrants
to, and covenants with, Seller that the following statements are true, correct
and complete as of the date of this Agreement, and that the same shall be
true, correct and complete on the Closing:
1) Buyer has the right, power, and authority to enter into this
Agreement.
2) The execution of this Agreement by Buyer and the transactions
contemplated by this Agreement have been duly authorized by all
necessary action required for such authorization by the Buyer
corporation.
3) Buyer is not, nor at any time will it be, a party to any contract
or other arrangement of any nature that will materially interfere
with its full, due, and complete performance of this Agreement.
4) Buyer is not, nor at any time will it be, in knowing violation of
any existing law, statute or regulation, by entering into and
undertaking the performance of this Agreement.
5) To Buyer's best knowledge and belief, there is no litigation or
proceeding pending, nor is any litigation threatened or pending
involving Buyer which could, if adversely determined, materially
and adversely affect the performance of Buyer's obligations under
this Agreement.
6) Buyer will exert its best commercially practicable efforts to
maintain, operate and grow the Business.
7) The Common Stock when issued, sold and delivered in accordance
with the terms of this Agreement, will be duly and validly issued
(including, without limitation, issued in compliance with
applicable Illinois state and federal securities laws), fully
paid, non-assessable and free and clear of all liens, charges,
claims and encumbrances.
8) All consents, approvals, qualifications, licenses, orders or
authorizations of, or filings with the Illinois Secretary of State
and any federal governmental authority required in connection with
the valid execution, delivery or performance of this Agreement by
the Company or the offer, sale or issuance of the Common Stock, or
the consummation of any other transaction contemplated on the part
of Buyer hereby have been obtained or made, except for routine
post-closing filings with the United States Securities and
Exchange Commission and under state corporation and securities
laws, each of which will be timely filed within the applicable
period therefor.
Buyer further represents and warrants to Seller and to Pollachek that it
will in good faith fully perform its obligations under the
Administrative Services Agreement and will exercise its best efforts to
maintain the good reputation of Seller with Seller's professional
personnel, including but not limited to Pollachek, its staff , vendors
and clients.. This representation and warranty shall survive the
Closing.
REPRESENTATIONS AND WARRANTIES CONCERNING PURCHASED ASSETS:
Except as otherwise expressly provided herein, Seller makes no representations
or warranties, either expressed or implied, concerning the Purchased Assets.
The Buyer shall accept the Purchased Assets in an "as is" condition, with no
warranties expressed or implied, including the warranties of merchantability
and fitness for a particular purpose, except Seller shall warrant that it has
good and marketable title to said Assets, free of any liens, levies and
encumbrances and has a right to convey same. Seller hereby represents that
the Business' equipment shall be in good working order relative to the age of
the equipment on the date of the Closing.
TERMINATION:
1) Either party may terminate this Agreement in the event the Closing
has not taken place by May 30, 2005.
2) Seller may terminate after the expiration of stated notice period
to Buyer to cure a material breach of the following sections of
this Agreement (i) ten (10) days notice of a breach of PURCHASE
PRICE: Revenue Bonus, or (ii) thirty (30) days notice of a breach
of REPRESENTATIONS AND WARRANTIES: Representations and Warranties
of Buyer, or (iii) thirty (30) days notice of a breach of
INDEMNIFICATION: 2), and Buyer does not cure the breach within the
stated notice period.
3) In the event of termination under paragraph 2) above, the
Consulting Agreement shall terminate immediately and Pollachek
will no longer be bound by the provisions of Section 7 Non
Solicitation of Clients of that agreement and Pollachek or any
entity with which he is associated shall have the right to employ,
retain or otherwise enter into a relationship with the persons
listed in Section 7.A of the Consulting Agreement. In addition,
at Pollachek's option, Buyer shall cause the holder(s) of all
rights to the ownership of capital stock of Seller to transfer
such rights back to Pollachek within fifteen (15) days of him
notifying Buyer that he wants such rights back and without expense
to Pollachek or, if the transfer of Pollachek's shares pursuant to
the Stock Purchase Agreement between Pollachek and Buyer dated the
same date as this Agreement has not taken place, such agreement
shall be deemed null and void and without further effect, and the
Administrative Services Agreement shall terminate on the same date
as this Agreement.
INDEMNIFICATION:
1) Seller shall indemnify, defend and hold Buyer harmless from and
against, and reimburse Buyer with respect to, any and all losses,
damages, liabilities, claims, judgments, costs and expenses
(including attorneys' fees and costs) of any nature whatsoever
that Buyer shall suffer as a result of a material breach of any
representation, warranty, covenant or agreement contained herein.
2) Buyer shall indemnify, defend and hold Seller harmless from and
against, and reimburse Seller with respect to, any and all losses,
damages, liabilities, claims, judgments, costs and expenses
(including attorneys' fees and costs) of any nature whatsoever
that Seller shall suffer as a result of a material breach of any
representation, warranty, covenant or agreement contained herein.
DISPUTES:
Resolution of Disputes.
1) Arbitration. All disputes between or among parties relating to
this Agreement (a "Dispute"), which have not been otherwise
resolved (such unresolved Dispute hereafter referred to as an
"Arbitrable Matter"), shall be exclusively and finally resolved by
arbitration by a single arbitrator agreed upon by the parties to
the Arbitrable Matter (the "Arbitrator"). If the parties are
unable to agree upon a single arbitrator, each of the parties to
the Arbitrable Matter shall select an arbitrator, with a third
(3rd) arbitrator selected by the arbitrators chosen by the
parties. In this event, the third (3rd) arbitrator shall decide
the Arbitrable Matter by a his/her sole decision. All arbitration
proceedings shall occur in Chicago, Illinois.
2) Direct Negotiation and Mediation Prior to Undertaking Mandatory
Arbitration. Notwithstanding the provisions of the above section,
prior to arbitrating any Dispute, the parties agree that they
initially shall attempt to resolve the Dispute through direct
negotiation. If the Dispute is not resolved within fourteen (14)
days after written demand for direct negotiation, the parties
shall attempt to resolve the Dispute through mediation, with a
mediator jointly chosen by the parties, and the cost borne equally
by the parties. If the mediator is unable to facilitate a
settlement of the Dispute within a reasonable period of time, as
determined by the mediator, the mediator shall issue a written
statement to the parties to that effect and any unresolved Dispute
shall be resolved through binding arbitration in accordance with
the provisions of this Section.
3) Rules Governing Arbitration. Any arbitration (an "Arbitration")
shall be governed by the Commercial Arbitration Rules of the
American Arbitration Association ("AAA") then pertaining. The
existence and resolution of the Arbitration proceedings shall be
kept confidential by the parties and by the Arbitrator except as
required by law, regulation or a court of competent jurisdiction.
4) Notice of Arbitration. Any party to this Agreement may initiate
an Arbitration of any Arbitrable Matter. The initiating party
shall do so by providing written notice of the Arbitration to the
other party or parties to the Arbitrable Matter. The notice shall
bear a current date, shall state the name of the initiating party
and shall briefly state the matter to be arbitrated.
5) No Appeal, Etc. Except as otherwise permitted by the Commercial
Arbitration Rules of the AAA or Illinois statutes, no party shall
appeal to any court an order of an Arbitrator, and the decision of
the Arbitrator, and the order entered, shall be the final, binding
and conclusive resolution of the Arbitrable Matter. Any party to
the Arbitrable Matter may enter such order in any court of
competent jurisdiction.
6) Allocations of Costs, Fees, Etc. The Arbitrator may allocate
among the parties to the dispute the costs, fees and other
expenses relating to an Arbitration in any manner that the
Arbitrator shall determine to be appropriate in his/her absolute
discretion; provided, that if the Arbitrator determines that a
party has initiated an Arbitration without reasonable basis for
doing so, the Arbitrator shall assess against that party the costs
of the other parties relating to the Arbitration, including the
reasonable attorney's fees of these parties.
MISCELLANEOUS:
1) Agreement Binding. This Agreement shall be binding upon and inure
to the benefit of the parties named herein and their respective
successors and assigns.
2) Title and Captions. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed
part of the context nor effect the interpretation of this
Agreement.
3) Incorporation of Exhibits. The exhibits, Exhibits A through G,
identified in this Agreement are incorporated herein by reference
and made a part of this Agreement.
4) Advice Concerning Legal, Tax and Accounting Consequences of
Transaction. Each of the parties to this Agreement represents and
warrants that prior to entering into this Agreement, that they
have had the opportunity to seek the advice of professional
advisors concerning the legal, tax and accounting consequences of
the transactions contemplated by this Agreement. The parties
execute this Agreement with full knowledge and understanding of
all legal, tax and accounting consequences. Regardless of whether
or not the transaction contemplated herein is consummated, each of
the parties are responsible for the payment of any and all
expenses that they incur as a result hereof.
5) Final, Complete and Exclusive Agreement. This Agreement and the
Stock Purchase Agreement-Stat Anesthesia PC, the Stock Purchase
Agreement Plum Creek Outpatient, Inc., Consulting Agreement and
Administrative Services Agreement contain the final, complete and
exclusive agreement between the parties and supersedes any prior
understandings and agreements among them respecting the subject
matter of this Agreement.
6) Governing Law/Jurisdiction. This Agreement has been executed by
Seller in Illinois and shall be governed by and shall be construed
in accordance with the law of the State of Illinois. The parties
consent to the jurisdiction of the courts of the State of Illinois
and agree that any action arising out of or to enforce this
Agreement must be brought and maintained in Illinois.
7) Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given:
a) upon personal delivery to the party to be notified;
b) when sent by confirmed telex or facsimile if sent during
normal business hours of the recipient, if not, then on the
next business day;
c) five (5) days after having been sent by registered or
certified mail, return receipt, postage prepaid; or
d) two (2) days after deposit with a nationally recognized
overnight courier, specifying next day delivery, with
written verification of receipt.
All communications shall be sent to the parties hereto at the
respective addresses set forth below, or as notified by such party
from time to time at least ten (10) days prior to the
effectiveness of notice:
If to Seller: If to Buyer:
Stat Anesthesia, P.C. Omni Medical Holdings, Inc.
c/o Xxxxx Xxxxxxxxx Xxxxxx X. Xxxxx, CEO
00000 Xxxxxx Xxxx 0000 Xx. Xxxxxxxx Xxxx Xxxxx 0
Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
or at any other address as any party may, from time to time,
designate by notice given incompliance with this Section.
8) Waiver. No waiver by any party of any default, misrepresentation,
or breach of warranty hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty hereunder or affect in
any way rights arising by virtue of any prior or subsequent such
occurrence.
9) Severability. Any term or provision of this Agreement that is
invalid or unenforceable shall not affect the validity or
enforceability of the remaining terms and provisions of this
Agreement.
10) Terms. Common nouns and pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity
of the party may in the context require.
11) Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation and execution
of this Agreement and, therefore, waive the application of any
law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
12) Amendments. No amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed by both
parties.
13) Counterparts. This Agreement may be execute simultaneously in two
or more counterparts each of which shall be deemed an original,
and all of which, when taken together, constitute one and the same
document. The signature of any party to any counterpart shall be
deemed a signature to, and may be appended to, any other
counterpart.
IN WITNESS WHEREOF, the undersigned have executed this Asset Purchase
Agreement on the date first written above.
Stat Anesthesia P.C.
By:/s/Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxx
Omni Medical Holdings, Inc.
By:/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, CEO
ASSET PURCHASE AGREEMENT
Stat Anesthesia PC
Exhibit A
List of Personal Property
(see list attached)
ASSET PURCHASE AGREEMENT
Stat Anesthesia PC
Exhibit B
Excluded Liabilities
Lease Agreement between Xxxxx Xxxxxxxxx as Landlord and Stat Anesthesia, PC as
tenant to the offices premises at 00000 Xxxxxxxx Xxxxxx, Xxxxx 0-X, Xxxxxxx,
Xxxxxxxx
Lease for Equipment Storage dated March 1, 2003 between Xxxxxxx Xxx and Stat
Anesthesia to store equipment in St. Xxxxxx
Rental Agreement dated January 15, 2004 between Xxxxx Xxxxxxxxx and Stat
Anesthesia for the rental of Pollachek's condominium in St. Xxxxxx
Rental Agreement dated October 1, 2003 between Xxxxx Xxxxxxxxx and Stat
Anesthesia for the rental of Pollachek's condominium in Sturgis, Michigan
Lease Agreement between Xxxxx Xxxxxxxxx dated April 1, 2004 as Landlord and
Stat Anesthesia, PC as tenant to the offices premises at 00000 Xxxxxxxx
Xxxxxx, Xxxxxx 0-X xxx 0-X, Xxxxxxx, Xxxxxxxx
Current credit card debt incurred in the normal course of business;
Payables owed to employees and independent service providers such as the
Seller's office personnel and professional personnel (Physicians, Registered
Nurses, Certified Registered Nurse Anesthetists and any other licensed
personnel), including payments made by Stat Anesthesia dated April 15, 2005.
Payable on Dell computer equipment
ASSET PURCHASE AGREEMENT
Stat Anesthesia PC
Exhibit C
Form of Stock Purchase Agreement Plum Creek
STOCK PURCHASE AGREEMENT
Plum Creek Outpatient, Inc.
THIS AGREEMENT is made and entered into as of this 15th day of April, 2005, by
and between Xxxxx Xxxxxxx, an individual resident at 00000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000, hereinafter referred to as the "Seller" and Omni
Medical Holdings, Inc. a Utah corporation having a place of business at 0000
Xx. Xxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxx Xxxxxx 00000, hereinafter referred to as
the "Purchaser";
WITNESSETH:
WHEREAS, the Seller is the record owner and holder of the issued and
outstanding shares of the capital stock of Plum Creek Outpatient, Inc.,
hereinafter referred to as the "Corporation", an Illinois corporation, which
Corporation has issued capital stock of 1000 common shares of no par value,
and
WHEREAS, the Purchaser desires to purchase all of the issued and outstanding
capital stock of the Corporation (referred to as the "Corporation's Stock"),
and the Seller desires to sell or cause to be sold all of the Corporation's
Stock, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and in order to consummate the purchase and the
sale of the Corporation's Stock aforementioned, it is hereby agreed as
follows:
1. PURCHASE AND SALE: CLOSING.
a. Purchase and Sale of Corporation's Stock. Subject to the terms and
conditions hereinafter set forth, at the closing of the transaction
contemplated hereby, the Seller shall sell, convey and transfer, or cause to
be sold, conveyed or transferred, all of the Corporation's Stock and deliver
to the Purchaser certificates representing such stock, and the Purchaser shall
purchase from the Seller the Corporation's Stock in consideration of the
purchase price set forth in Section 2 below. The certificates representing
the Corporation's Stock shall be duly endorsed for transfer or accompanied by
appropriate stock transfer powers duly executed in blank, in either case with
signatures guaranteed in the customary fashion.
b. Procedure for Closing. The closing of the transactions contemplated by
this Agreement (the "Closing"), shall be held at the offices of Seller's
attorney, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx , on the 15th
day of April, 2005 or at such other place, date and time as the parties
hereto may otherwise agree (such date to be referred to in this Agreement as
the "Closing Date"). However the Closing shall be deemed to have taken place
on April 15, 2005 at one minute past midnight that day. The Purchase Price
will be paid at the Closing to be held in conjunction with the execution and
exchange of this Agreement by the parties.
c. Closing Documents of Seller. At the Closing, Seller shall execute and
deliver to Purchaser the following:
(i) Assignment of Shares. An Assignment of Shares in the form of
Exhibit "F" attached hereto, as well as all outstanding share certificates
representing the Corporation's Stock.
(ii) Additional Documents. Any other documents reasonably requested by
Seller to effect this transaction and any schedules or exhibits to this
Agreement which are the obligation of the Seller to provide; provided,
however, that the Seller and Purchaser may agree to allow additional time for
the provision of the documents, schedules or exhibits not reasonably available
to the Seller at the time of Closing.
d. Closing Documents of Purchaser. At the Closing, Purchaser shall deliver
to Seller the following:
(i) Purchase Price. The stock certificate for the Purchase Price,
payable in accordance with the provisions of Section 2 and Exhibit "A", and
all other sums provided hereunder.
(ii) Additional Documents. Any other documents reasonably requested by
the Seller to effect this transaction and any schedule or exhibits to this
Agreement which are the obligation of the Purchaser to provide; provided,
however, that the Seller and the Purchaser may agree to allow additional time
for the provision of any documents, schedules, or exhibits not reasonably
available to the Purchaser at the time of Closing.
2. AMOUNT AND PAYMENT OF PURCHASE PRICE. The total consideration and method
of payment thereof are fully set out in Exhibit "A" attached hereto and made a
part hereof.
3. ASSETS AND LIABILITIES EXCLUDED FROM SALE. At Closing the parties shall
cause the Corporation to distribute to the Seller all cash and checks on hand
prior to the close of business on April 15, 2005, including both undeposited
checks and checks deposited but not yet cleared on hand, and any motor
vehicles and trailers in the name of or used by the Corporation or Xxxxx
Xxxxxxxxx. Seller shall assume responsibility for any loans to the
Corporation both from Seller and from third parties, including but not limited
to banks and other financial institutions but excluding credit card debt and
payables owed to employees and independent service providers such as the
Seller's office personnel and professional personnel (Physicians, Registered
Nurses, Certified Registered Nurse Anesthetists and any other licensed
personnel).
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby warrants and
represents:
a. Organization and Standing. Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois
and has the corporate power and authority to carry on its business as it is
now being conducted. A true and correct copy of:
i. its Certificate of Incorporation and all amendments thereto to date
certified by the Secretary of State of the State of Illinois, and
ii. its Bylaws as now in effect,
will be delivered by Seller to the Purchaser prior to the Closing Date. The
Corporation's minute books will be made available to the Purchaser and its
representatives at any reasonable time or times prior to the Closing for
inspection and will be complete and correct as of the date of any such
inspection.
b. Capitalization. The authorized capital stock of the Corporation consists
of 10,000 shares of no par value common stock.
c. Restrictions on Stock.
i. Neither the Corporation nor Seller is a party to any agreement, written or
oral, creating rights in respect to the Corporation's Stock in any third
person or relating to the voting of the Corporation's Stock.
ii. Seller is the lawful owner of all the Corporation's Stock, free and clear
of all security interests, liens, encumbrances, equities and other charges.
iii. There are no existing warrants, options, stock purchase agreements,
redemption agreements, restrictions of any nature, calls or rights to
subscribe of any character relating to the capital stock of the Corporation,
nor are there any securities convertible into such stock.
d. Subsidiaries. The Corporation has no subsidiaries.
e. Authority Relative to this Agreement. Except as otherwise stated herein,
the Seller has full power and authority to execute this Agreement and carry
out the transactions contemplated by it and no further action is necessary by
the Seller to make this Agreement valid and binding upon Seller and
enforceable against it in accordance with the terms hereof, or to carry out
the actions contemplated hereby. The execution, delivery and performance of
this Agreement by the Seller will not :
i. constitute a breach or a violation of the Corporation's Certificate of
Incorporation, By-Laws, or of any law, agreement, indenture, deed of trust,
mortgage, loan agreement or other instrument to which it is a party, or by
which it is bound;
ii. constitute a violation of any order, judgment or decree to which it is a
party or by which its assets or properties are bound or affected; or
iii. result in the creation of any lien, charge or encumbrance upon its
assets or properties, except as stated herein.
f. Financial Statements. Seller is furnishing financial statements of the
Corporation as an inducement to Purchaser to purchase the Corporation's Stock
and accordingly, Seller warrants and represents the financial operating
history or condition of the Corporation as indicated by the financial
statements turned over to Purchaser. Moreover, Seller warrants and represents
that at closing the Corporation and the Corporation's Stock will not be
subject to any liability save and except those specifically enumerated in
Exhibit "B" attached hereto and made a part hereof.
To the extent that liabilities are discovered by Purchaser after Closing which
relate to events prior to Closing, Seller shall be responsible to forthwith
pay such liabilities, including income tax liabilities in cash within forty
five (45) days thereof. This indemnification as it relates to income tax
liabilities of the Corporation shall terminate on the tenth (10th) day after
the expiration of the applicable period of limitations on assessments and
collections applicable to such taxes under the Internal Revenue Code.
Moreover, the aforementioned indemnity shall not apply to any tax liability
which may occur by reason of actions taken by the Purchaser including, but not
limited to, the liquidation of the Corporation.
g. Tax Matters. The Corporation has timely prepared and filed all federal,
state and local tax returns and reports as are and have been required to be
filed and all taxes shown thereon to be due have been paid in full. It is
understood that the Seller is responsible for all corporate federal, state,
local and payroll taxes incurred, accrued or unpaid through April 15, 2005.
The payment of those taxes by the Seller are due on or before when the return
is filed by the Purchaser.
h. Litigation. The Corporation is not a party to any litigation, proceeding
or administrative investigation and to the best knowledge of the Seller none
is pending against the Corporation or its properties.
i. Properties. The Corporation has good and merchantable title to all of
its properties and assets which are those properties and assets set out in
Exhibit "C" attached hereto and made a part hereof. At closing, such
properties and assets will be subject to no mortgage, pledge, lien,
conditional sales agreement, security agreement, encumbrance or charge,
secured or unsecured, except for real estate taxes and tangible personal
property taxes which shall be prorated as of April 15, 2005, or those
specifically set out in Exhibit "B".
j. Compliance with Applicable Laws. None of the Corporation's actions have
violated any law in effect on the date of this Agreement or will violate any
such law on the date of closing. None of the actions of the Corporation shall
conflict with or result in any breach of any of the provisions of, or
constitute a default under, or result in the creation of any lien, security
interest, charge or encumbrance upon the capital stock of the Corporation, or
upon any of the assets of the Corporation, under the provisions of the
Certificate of Incorporation or Bylaws or any indenture, mortgage, lease,
loan agreement or other agreement to which the Corporation and/or the Seller
is a party or by which the capital stock or properties and assets of the
Corporation are bound to effect it.
The Corporation is in compliance with all applicable laws, including, but not
limited to, corporate laws, zoning regulations, city, and/or county and state
occupational laws and regulations, internal revenue laws, and any and all
other laws which effect the operation of the Corporation..
k. Documents for Review. The Corporation's documents enumerated in Exhibit
"D", attached hereto and made a part hereof, are true, authentic, and correct
copies of the originals, or, if appropriate, the originals themselves, and no
alterations or modifications thereof have been made.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser hereby
warrants, represents, and covenants to the Seller as follows:
a. Status of Purchaser. Purchaser is a corporation in good standing under
the laws of the State of Utah.
b. Authority and Enforceability. The Purchaser has all requisite corporate
power and authority to execute and deliver this Agreement and perform all its
obligations hereunder. The execution, delivery and performance of this
Agreement and the share purchase transaction by the Purchaser contemplated
hereby have been duly authorized by all necessary corporate action by the
Purchaser. This Agreement is a valid and binding obligation of the Purchaser
and is enforceable against it in accordance with its terms and conditions.
This Agreement does not violate any of the terms or provisions of the
Purchaser's Articles of Incorporation.
c. No Contravention. The execution and delivery of this Agreement by
Purchaser will not, and does not, violate any law, regulation, decree, writ,
order or injunction and such action will not contravene the provisions of or
constitute a default under any agreement to which the Purchaser is a party.
d. Disclosure. Neither this Agreement nor any of the exhibits, schedules, or
attachments to this Agreement contain any untrue statement of a material fact
or omit a material fact necessary to make each statement contained herein or
therein not misleading.
e. The shares of the common stock of Purchaser when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued (including, without limitation, issued in compliance with
applicable Illinois state and federal securities laws), fully paid, non-
assessable and free and clear of all liens, charges, claims and encumbrances.
f. All consents, approvals, qualifications, licenses, orders or
authorizations of, or filings with the Illinois Secretary of State and any
federal governmental authority required in connection with the valid
execution, delivery or performance of this Agreement by the Purchaser or the
offer, sale or issuance of the shares of Purchaser's Common Stock to Seller,
or the consummation of any other transaction contemplated on the part of
Purchaser hereby have been obtained or made, except for routine post-closing
filings with the United States Securities and Exchange Commission and under
state corporation and securities laws, each of which will be timely filed
within the applicable period therefor.
6. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER. Other than
Seller's retention of the services of Premier Business Group, Inc., Seller and
Purchaser hereby represent and warrant that there has been no act or omission
by Seller, Purchaser or the Corporation which would give rise to any valid
claim against any of the parties hereto for a brokerage commission, finder's
fee, or other like payment in connection with the transactions contemplated
hereby.
7. TRANSACTIONS PRIOR TO AND AT THE CLOSING. Seller hereby covenants the
following:
a. Conduct of Corporation's Business Until Closing. Except as Purchaser may
otherwise consent in writing prior to the Closing Date, Seller will not enter
into any transaction, take any action or fail to take any action which would
result in, or could reasonably be expected to result in or cause, any of the
representations and warranties of Seller contained in this Agreement, to be
not true on the Closing Date.
b. Resignations. Seller will deliver to Purchaser at the Closing the
resignation of each director and officer of the Corporation, each such
resignation to be effective on the Closing Date.
c. Advice of Changes. Between the date hereof and the Closing Date, Seller
will promptly advise Purchaser in writing of any fact which, if existing or
known at the date hereof, would have been required to be set forth herein or
disclosed pursuant to this Agreement, or which would represent a material fact
the disclosure of which would be relevant to the Purchaser.
d. Condition Precedent. Neither party shall be obligated to close under
this Agreement unless there is a simultaneous closing completed under the
terms of the Asset Purchase Agreement between the Purchaser and Stat
Anesthesia, PC of even date with this Agreement.
8. EXPENSES. Each of the parties hereto shall pay its own expense in
connection with this Agreement and the transactions contemplated hereby,
including the fees and expenses of its counsel and its certified public
accountants and other experts.
9. TERMINATION. If the Closing has not been completed by March 31, 2005 this
Agreement shall be terminated without action by either party and shall be
deemed null and void ab initio.
10. GENERAL. a. Survival of Representations and Warranties. Each of the
parties to this Agreement covenants and agrees that the representations,
warranties, covenants and statements and agreements contained in this
Agreement and the exhibits hereto, and in any documents delivered by Seller to
Purchaser in connection herewith, shall survive the Closing Date. Except as
set forth in this Agreement, the exhibits hereto or in the documents and
papers delivered by Seller to Purchaser in connection herewith, there are no
other agreements, representations, warranties or covenants by or among the
parties hereto with respect to the sale and purchase of the Corporation's
Stock..
b. Waivers. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party shall be deemed to constitute a
waiver by the party taking such action or compliance with any representation,
warranty, covenant or agreement contained herein, therein and in any documents
delivered in connection herewith or therewith. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
c. Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered or mailed, first class
mail, postage prepaid:
To Seller: 00000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000
To Purchaser: 0000 Xx. Xxxxxxxx Xxxx Xxxxx 0, Xxxxx Xxxx, Xxxxx Xxxxxx
00000
or to such other address as such party shall have specified by notice in
writing to the other party.
d. Entire Agreement. This Agreement (including the exhibits hereto, and the
Stock Purchase Agreement-Stat Anesthesia PC between Xxxxx Xxxxxxxxx and
Purchaser, the Consulting Agreement between Xxxxx Xxxxxxxxx and Purchaser and
the Administrative Services Agreement between Stat Anesthesia PC and Omni
Medical, Inc., all such agreements dated the same date as this Agreement and
all documents and papers delivered by Seller pursuant hereto and any written
amendments hereof executed by the parties hereto) constitutes the entire
Agreement and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the sale and purchase of
the Corporation's Stock.
e. Sections and Other Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
f. Governing Law. This Agreement, and all transactions contemplated hereby,
shall be governed by, construed and enforced in accordance with the laws of
the State of Illinois. The parties herein waive trial by jury and agree to
submit to the personal jurisdiction and venue of a court of subject matter
jurisdiction located in Xxxx County, State of Illinois. In the event that
litigation results from or arises out of this Agreement or the performance
thereof, the parties agree to reimburse the prevailing party's reasonable
attorney's fees, court costs, and all other expenses, whether or not taxable
by the court as costs, in addition to any other relief to which the
prevailing party may be entitled. In such event, no action shall be
entertained by said court or any court of competent jurisdiction if filed more
than one year subsequent to the date the cause(s) of action actually accrued
regardless of whether damages were otherwise as of said time calculable.
g. Conditions Precedent. The Conditions Precedent to the enforceability of
this Agreement are outlined in Exhibit "E", attached hereto and made a part
hereof. In the event that said Conditions Precedent are not fulfilled by the
appropriate dates thereof, this Agreement shall be deemed null and void.
h. Contractual Procedures. Unless specifically disallowed by law, should
litigation arise hereunder, service of process therefore may be obtained
through certified mail, return receipt requested; the parties hereto waiving
any and all rights they may have to object to the method by which service was
perfected.
IN WITNESS WHEREOF, this Stock Purchase Agreement has been executed by the
individual party hereto and signed by an officer thereunto duly authorized and
attested under the corporate seal by the Secretary of the corporate party
hereto, all on the date first above written.
Signed, sealed and delivered in the presence of:
Omni Medical Holdings, Inc.
By:/S/Xxxxxx X. Xxxxx
It's President
/S/
It's Secretary
/s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
EXHIBIT "A"
AMOUNT AND PAYMENT OF PURCHASE PRICE
a. Consideration. As total consideration for the purchase and sale of the
Corporation's Stock, pursuant to this Agreement, the Purchaser shall issue to
the Seller One Million (1,000,000) shares of its common stock of $0.001 par
value each, which shares when issued shall be deemed fully paid and non-
assessable., such total consideration to be referred to in this Agreement as
the "Purchase Price". A stock certificate for such shares to be delivered to
Seller in exchange for the Assignment of Shares.
EXHIBIT "B"
LIABILITIES OF CORPORATION
Current trade payables, credit card debt and personnel costs.
EXHIBIT "C"
PROPERTIES AND ASSETS OF CORPORATION
(To follow)
EXHIBIT "D" DOCUMENTS FOR REVIEW
i. Corporate Articles of Incorporation
ii. Corporate Bylaws
iii. Corporate Minutes and Resolutions
iv. Financial and Operating Statements
v. Income Tax Returns
vii. Leasehold Agreement(s) (If applicable)
EXHIBIT "E" CONDITIONS PRECEDENT
None
EXHIBIT "F" ASSIGNMENT OF SHARES
For Value Received, I hereby sell, assign and transfer unto Omni Medical
Holdings, Inc. 1,000 Shares of Plum Creek Outpatient, Inc., an Illinois
corporation ("Corporation") standing in my name on the books of the
Corporation, and do hereby irrevocably constitute and appoint Xxxxxx X.
Xxxxx, Attorney to transfer the said Shares on the books of the
Corporation with full power of substitution in the premises.
Dated:__April 15, 2005
In Presence of:
/s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
ASSET PURCHASE AGREEMENT
Stat Anesthesia PC
Exhibit D
Form of Consulting Agreement
CONSULTANT AGREEMENT
This Consultant Agreement ("Agreement") is made as of the 15th day of April,
2005 by and between Xxxxx Xxxxxxxxx (the "Consultant") and Omni Medical
Holdings, Inc., a Utah corporation (the "Company").
Recitals.
The Company has agreed under the Asset Purchase Agreement (the "Asset Purchase
Agreement") dated the same date as this Agreement, to which Company and
Consultant are parties, to purchase the assets of Stat Anesthesia, PC as a
going concern. Consultant in his capacity as President of Stat Anesthesia, PC
has in-depth knowledge of Stat Anesthesia, PC and its business and operations.
To ensure continuity and a smooth transition, Company wishes to retain
Consultant on a part time basis as an independent consultant, and Consultant
wishes to provide the Company with services described below in such capacity.
Therefore the parties agree as follows:
1. Retention Period. The Company agrees to retain the services of the
Consultant to advise and consult with Company concerning the business of Stat
Anesthesia, PC, particularly in the areas of client service, personnel, sales
and marketing and concerning the business of Plum Creek Outpatient, Inc.(the
"Services") for a period commencing April 15, 2005 and continuing for a 24-
month period ending on April 14, 2007, subject, however, to prior termination
as provided in this Agreement.
2. Best Efforts of Consultant.
A. Consultant agrees to at all times faithfully, industriously and to
the best of his ability, experience and talents, to perform all the
duties that may be required of and from him pursuant to the express and
implicit terms of this Agreement, to the reasonable satisfaction of the
Company.
B. Consultant shall devote up to 12 hours per week of his normal and
regular business time, attention, knowledge and skill to the business
and interests of the Company, and the Company shall be entitled to all
of the benefits, profits or other issue arising from or incident to all
work, services and advice of the Consultant performed for the Company,
excluding compensation due Consultant for professional services
performed for the Company in his capacity as a Certified Registered
Nurse Anesthetist.
3. Payment for Services.
1. In exchange for the Services, the Company shall pay Consultant
according to the following schedule:
A. The Consultant will receive payment for the Services whether or
not the Company requests such services of:
(i) $14,583.33 per month for the period of April 15, 2005
through April 14, 2006; and
(ii) $2,000 per month for the period of April 15, 2006 through
April 14, 2007;
payable at the end of each month, no later than the fifth business
day of the following month. The first payment shall be due and
payable no later than April 22, 2005 and the last payment by April
22, 2007.
B. The Company shall reimburse the Consultant for reasonable out of
pocket expenses incurred by Consultant in fulfilling his duties, in
accordance with the Company's expense policy notified to Consultant from
time to time, which shall be reviewed by the corporate officer assigned
to this task for payment approval. Company shall pay to Consultant
reimbursable expenses within thirty (30) days after Consultant's
documented request for reimbursement.
4. Termination. This Agreement may be terminated as follows:
A. The Company may terminate this Agreement if either: 1) in the event
of the Consultant's total, permanent disability, or 2) in the event of
the Consultant's death.
B. The Consultant may terminate this Agreement if 1) the Company
breaches any term or condition of this Agreement, 2) the closing under
the Asset Purchase Agreement does not take place as provided in that
agreement, or 3) the Asset Purchase Agreement is terminated.
5. Duties. Consultant shall be available to provide services under
this Agreement for all matters pertaining to all business operations of Stat
Anesthesia PC for a total of up to 12 hours per week, forty eight (48) weeks
per year during regular office hours Monday through Friday. Consultant will
assist Company, but at all times shall be subject to the senior management of
the Company.
6. Independent Contractor Relationship. The Consultant shall provide
services as an independent contractor and not as an employee of the Company or
any company affiliated with the Company. Consultant has no authority to bind
Company or any affiliate to any legal action, contract, agreement, or
purchase. Consultant is not entitled to any benefits of any type afforded to
employees or offered by the Company.
7. Non Solicitation of Clients. During the period of retention and
for a one year period after termination of the Consultant's services unless
the Agreement is terminated by the Consultant in which case the restrictions
of this section shall not apply, the Consultant will not directly or
indirectly:
A. Induce or attempt to persuade any former, current or future
employee, or independent contractor or other participant in the
Company's business, including the Company's clients, customers or
vendors, to terminate such employment or other relationship in order to
enter into any relationship with the Consultant, any business
organization in which the consultant is a participant whatsoever, or any
other business organization in competition with the Company's business;
or
B. Use contracts, proprietary information, trade secrets,
confidential information customer lists, mailing lists, goodwill, or
other intangible property used or useful; in connection with the
Company's business for the purposes of an office based anesthesia
business in the states of Illinois, Indiana, Michigan and Wisconsin, and
the US Virgin Islands.
Nothing above shall prevent Consultant from (i) providing nursing services
personally in his capacity as a Certified Registered Nurse Anesthetist, or
(ii) owning and/or operating a pain management business. The Company
acknowledges and agrees that Consultant's business, Interventional Pain
Management Ltd. is a pain management business falling within this exception.
8. Severability. The covenants set forth in Section 7 above shall be
construed as a series of separate covenants, one for each county in each of
the states of the United States to which such restriction applies. If, in any
judicial proceeding, a court of competent jurisdiction shall refuse to enforce
any of the separate covenants deemed included in this Agreement, or shall find
that the term or geographic scope of one or more of the covenants is
unreasonably broad, the parties shall use their best good faith efforts to
attempt to agree on a valid provision which shall be a reasonable substitute
for the invalid provision. The reasonableness of the substitute provision
shall be considered in light of the purpose of the covenants and the
reasonable protectable interests of the Company and the Consultant. The
substitute provision shall be incorporated into this Agreement. If the
parties are unable to agree on a substitute provision, then the invalid or
unreasonably broad provision shall be deemed deleted or modified to the
minimum extent necessary to permit enforcement.
9. Confidentiality. The Consultant acknowledges that he will develop
and be exposed to information that is or will be confidential and proprietary
to the Company. The information includes customer lists, marketing plans,
pricing data, product plans, software, stored data on all forms of media, and
other intangible information. Such information shall be deemed confidential
to the extent not generally known within the trade. The Consultant agrees to
make use of such information only in the performance of his duties under this
Agreement, to maintain such information in confidence and to disclose the
information only to persons with a need to know.
10. Remedies. The Consultant acknowledges that monetary damages would
be in adequate to compensate the Company for any breach by the Consultant of
the covenants set forth in Section 7 above. The Consultant agrees that, in
addition to other remedies which may be available, the Company shall be
entitled to obtain injunctive relief against the threatened breach of this
Agreement of the continuation of any breach, or both, without the necessity of
proving actual damages.
11. Waiver. The waiver by the Company of the breach of any provision
of this Agreement by the Consultant shall not operate or be construed as a
waiver of any subsequent breach by the Consultant.
12. Entire Agreement. This Agreement contains the entire agreement of
the parties concerning the provision of the Services by Consultant, and there
are no other promises or conditions in any other agreement whether oral or
written concerning the subject matter of this Agreement. This Agreement
supersedes any prior written or oral agreements between the parties.
13. Notices. Any notices permitted or required under this Agreement
shall be deemed given upon the date of personal delivery or forty-eight (48)
hours after deposit in the United States mail, postage fully prepaid, return
receipt requested, addressed to the Company at:
Omni Medical Holdings, Inc.
0000 Xx. Xxxxxxxx Xx. Xxxxx 0
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx,
and addressed to the Consultant at:
Xxxxx Xxxxxxxxx
00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
or at any other address as any party may, from time to time, designate by
notice given incompliance with this Section.
14. Law Governing. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
15 Titles and Captions. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
16. Agreement Binding; Assignment. This Agreement shall be binding
upon the administrators, successors and assigns of the parties hereto.
Consultant may by notice to the Company assign this Agreement to a corporation
or limited liability company of which he owns and controls the majority of
such corporation's shares or of such limited liability company's membership
interests.
17. Attorney Fees. In the event of an arbitration, suit or action
brought by any party under this Agreement to enforce any of its terms, or in
any appeal therefrom, it is agreed that the prevailing party shall be entitled
to reasonable attorneys fees to be fixed by the arbitrator, trial court,
and/or appellate court.
18. Computation of Time. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday,
Sunday, or a legal holiday, in which event the period shall begin to run on
the next day which is not a Saturday, Sunday, or legal holiday, in which event
the period shall run until the end of the next day thereafter which is not a
Saturday, Sunday, or legal holiday.
19. Arbitration. If at any time during the term of this Agreement any
dispute, difference, or disagreement shall arise upon or in respect of the
Agreement, and the meaning and construction hereof, every such dispute,
difference and disagreement shall be referred to a single arbiter agreed upon
by the parties, or if no single arbiter can be agreed upon, an arbiter or
arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial rules
of the American Arbitration Association and judgment upon the award rendered
by the arbiter may be entered in any court having jurisdiction thereof. The
parties hereby waive their right to trial on the merits and the right to
appeal, and agree to binding arbitration.
20. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement, or any
section thereof, was drafted by said party.
21. Parties in Interest. Nothing herein shall be construed to be to
the benefit of any third party, nor is it intended that any provision shall be
for the benefit of any third party.
22. Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
In Witness whereof, this Agreement is entered into effective as of the date
set forth above.
Omni Medical Holdings, Inc.
By:/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, CEO
/s/Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Consultant
ASSET PURCHASE AGREEMENT
Stat Anesthesia PC
Exhibit E
Form of Administrative Services Agreement
Administrative Services Agreement
This Administrative Services Agreement ("Agreement") is entered into
and effective as of 15th day of April, 2005 ("Effective Date"), by and between
Stat Anesthesia P.C., an Illinois corporation (hereinafter referred to as
"Stat Anesthesia"), and Omni Medical Holdings, Inc., a Utah corporation
(hereinafter referred to as "Omni Medical").
RECITALS
WHEREAS, Stat Anesthesia is a business which arranges office based
and outpatient anesthesia services for Dentists, Podiatrists, Physicians and
other licensed health entities that provide services to patients. Stat
Anesthesia's services are performed by independently contracted physicians and
certified registered nurse anesthetists ("CRNA") collectively referred to as
"Stat Anesthesia Personnel");
WHEREAS, Stat Anesthesia does not own or possess facilities for the
provision of its services nor does it own or possess medical equipment,
furnishings or supplies that are required for the delivery of its services;
WHEREAS, except for the Stat Anesthesia Personnel, Stat Anesthesia is
not desirous of employing other personnel who may be necessary to the
operation of a medical practice,
WHEREAS, Omni Medical is in the business of providing comprehensive
management services to medical practices, including the hiring of non-medical
personnel, the recruitment of medical personnel, and the provision of billing
and collection services;
WHEREAS, Omni Medical has special expertise and experience in the
operation, management and marketing of the non-medical aspects of medical
providers of the type operated or intended to be operated by Stat Anesthesia.
WHEREAS, the parties desire that Omni Medical provide the above-
described services to Stat Anesthesia, according to the terms and conditions
set forth below.
THEREFORE, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Definitions.
1.1 "Quality Assurance Program" (Program) is the ongoing
monitoring of the quality of services through qualitative and quantitative
analyses and the recommendation of quality improvements.
1.2 "Utilization Review" means the review of medical care
provided to patients for necessity and appropriateness conducted either
concurrently with the provision of the services or retrospectively after they
have been rendered, and which review may result in advice to a physician that
a reviewed service is not necessary or appropriate or not eligible for
reimbursement under a Payor Agreement.
1.3 "Patient" means a person who receives medical care
services from a client of Stat Anesthesia.
1.4 "Payor" means an employer, insurance carrier, health
service plan, trust, nonprofit hospital service plan, governmental unit or any
other entity which is obligated to provide or reimburse health care providers
for providing health care services to a Patient.
1.5 "Payor Agreement" means an agreement between a Payor and
Stat Anesthesia (or its authorized representative) under which Stat Anesthesia
is paid for health care services provided to Patients.
2. Term of Agreement. Commencing on the Effective Date and subject
to Section 17.6 below, this Agreement shall continue in effect for a period of
forty (40) years subject to earlier termination as provided below. It shall
automatically renew for an additional ten (10) year term unless Omni Medical
shall provide Stat Anesthesia at least one hundred and twenty (120)days'
advance written notice of its intention to let the Agreement expire.
Thereafter, it shall renew for successive ten (10) year terms unless either
party shall provide the other at least one hundred and twenty (120) days
advance written notice of its intention to let the Agreement expire at the end
of any such term prior to the end of such term. In the event that the Asset
Purchase Agreement between the parties dated April __, 2005 is terminated
pursuant to its section TERMINATION 2), this Agreement shall terminate
effective immediately in which event Omni Medical shall promptly assign its
interest in the leases of Offices (defined below)to Stat Anesthesia along with
all the medical equipment, office equipment, furniture, fixtures, furnishings,
inventories of medications and medical supplies, and leasehold improvements in
the Offices, and the Books and Records (defined below), provided that Omni
Medical shall have the right to access and copy such Books and Records to the
extent required for it to comply with applicable records retention laws.
3. Obligations of Omni Medical.
3.1 Furniture. Fixtures and Equipment
3.1.1 During the term of this Agreement and all
renewals and extensions hereof, Omni Medical shall provide Stat Anesthesia at
each office from which it operates its business (collectively the "Offices")
the medical equipment, office equipment, furniture, fixtures, furnishings and
leasehold improvements required for the efficacious operation of the business.
3.1.2 The use by Stat Anesthesia of such furniture,
fixtures, furnishings, and equipment shall be subject to the following
conditions:
3.1.2.1 Title to all such furniture,
fixtures, furnishings, and equipment shall remain in Omni Medical and upon
termination of this Agreement, Stat Anesthesia shall immediately return and
surrender all such furniture, fixtures, furnishings, and equipment to Omni
Medical in as good condition as when received, normal wear and tear excepted.
3.1.2.2 Omni Medical shall be fully and
entirely responsible for all repairs and maintenance of all such furniture,
fixtures, furnishings, and equipment, provided, however, that Stat Anesthesia
agrees that it will use its best efforts to prevent damage, excessive wear,
and breakdown of all such furniture, fixtures, furnishings, and equipment, and
shall advise Omni Medical of any and all needed repairs and equipment
failures.
3.2 Development, Management and Administrative Services.
During the term of this Agreement, and all renewals and extensions hereof,
Stat Anesthesia hereby engages Omni Medical to serve as Stat Anesthesia's
exclusive manager and administrator of all non-licensed services relating to
the operation of the Offices; and Omni Medical agrees to furnish to Stat
Anesthesia all of the non-licensed development, management and administrative
services as may be needed by Stat Anesthesia in connection with the operation
of the Offices. Such non-licensed development, management and administrative
services shall include the following:
3.2.1 Bookkeeping and Accounts. Omni Medical shall
provide all bookkeeping and accounting services necessary or appropriate to
support the Offices, including, without limitation, maintenance, custody and
supervision of all business records, papers, documents, ledgers, journals and
reports, and the preparation, distribution and recordation of all bills and
statements for professional services rendered by Stat Anesthesia, including
the billing and completion of reports and forms required by insurance
companies or governmental agencies, or other third-party payors (such records,
papers, documents, ledgers, journals and reports shall not be deemed to
include patient records and other records, reports and documents which relate
to patient treatment by Stat Anesthesia Personnel); provided, however, it is
understood that all such business records, papers and documents are the sole
property of Stat Anesthesia, and shall be available for inspection by Stat
Anesthesia at all times, and shall be delivered to Stat Anesthesia upon
termination of this Agreement. Stat Anesthesia shall provide Omni Medical with
a complete copy of all such documents, records, and papers at Stat Anesthesia
expense upon termination of this Agreement unless this Agreement is terminated
by Stat Anesthesia for cause or pursuant to Section 17.6 below.
3.2.2 General Administrative Services. Omni Medical
shall provide Stat Anesthesia with overall supervision and management,
including the maintenance and repair of the Offices, and all furniture,
fixtures, furnishings, equipment and leasehold improvements located in or at
the Offices.
3.2.3 Contract Administration. Omni Medical shall
provide Stat Anesthesia with administrative services to enable Stat to perform
on a timely basis all non-medical aspects of all Payor Agreements. Such
services shall include the preparation and analysis of reports to enable Stat
Anesthesia to provide Stat Anesthesia Personnel staffing and supervision at
the Offices for the rendering of efficient, high quality services.
3.3. Non-Physician Personnel. Omni Medical shall provide
such support personnel as may be reasonably necessary to enable Stat
Anesthesia to service its client base from the Offices subject to the
following:
3.3.1 Omni Medical shall provide all support
personnel necessary for Stat Anesthesia's business, including, but not limited
to, all unlicensed technical personnel, nurses, receptionists, secretaries,
clerks, purchasing and marketing personnel, janitorial and maintenance
personnel, and unlicensed supervisory personnel as may be deemed reasonably
necessary by Omni Medical for the proper and efficient operation of the
Office. Notwithstanding the foregoing, if any billing rules (such as
Medicare/Medicaid "incident to" rules) require Stat Anesthesia to be the
employer of certain unlicensed medical personnel in order for their services
to be reimbursed, then Stat Anesthesia shall be the employer of such
unlicensed medical personnel (who shall be deemed to be a portion of the "Stat
Anesthesia Personnel"); and
3.3.2 Omni Medical shall be responsible for hiring
and firing all such support personnel, and shall determine compensation for
all such personnel, including determination of salaries, fringe benefits,
bonuses, health and disability insurance, workers' compensation insurance, and
any other benefits that each such employee shall receive; and
3.3.3 Omni Medical shall manage and supervise all
such licensed support personnel employed on behalf of Stat Anesthesia such as
Certified Registered Nurse Anesthetists, regarding those aspects of their
employment that do not involve performance under the scope of their licensure;
provided, however, that Stat Anesthesia shall manage and supervise all
activities of such licensed support personnel performed under the scope of
their licensure;
3.4. Supplies. Omni Medical shall acquire and supply to
Stat Anesthesia all medical and non-medical supplies of every kind, name or
nature, which may reasonably be required by Stat Anesthesia for the operations
of the Offices.
3.5. Security and Maintenance. Omni Medical shall provide
Stat Anesthesia with all services and personnel necessary to provide Stat
Anesthesia with proper security, maintenance, and cleanliness of the Offices
and the furniture, fixtures, equipment, and leasehold improvements located
thereat. Additionally, Omni Medical shall furnish to or obtain for Stat
Anesthesia all printing, stationery, forms, telephone service, postage,
duplication services, and any and all other supplies and services of a similar
nature which are necessary in connection with the day-to-day operation of the
Offices.
3.6. Physician Recruiting and Training. Omni Medical shall
assist Stat Anesthesia in recruiting, screening and evaluating prospective
Stat Anesthesia Personnel.
3.7. Insurance. Omni Medical shall use all reasonable
efforts to obtain and maintain in full force and effect during the term of
this Agreement, and all extensions and renewals thereof, commercial general
liability and property insurance which Omni Medical deems appropriate to
protect against loss in the nature of fire, other catastrophe, theft, business
interruption, public liability, and non-medical negligence.
3.8. Billing and Collection. In order to relieve Stat
Anesthesia of the administrative burden of handling the billing and collection
of sums due under prepaid health plans, fees for medical, x-ray, laboratory
and all services provided by or on behalf of Stat Anesthesia and for which
Stat Anesthesia may charge, Omni Medical shall be responsible, on behalf of
and for Stat Anesthesia and any contracted licensed professionals or
independent licensed professional groups or other organizations retained by
Stat Anesthesia, on their respective billheads as their agent, for billing and
collecting the charges made with respect to all medical, x-ray, laboratory and
all other services provided at the Offices. Stat Anesthesia agrees that it
will keep and provide to Omni Medical all documents, opinions, diagnoses,
recommendations, and other evidence and records necessary for the purpose of
supporting the fees charged for all medical and other services from time to
time. It is expressly understood that the extent to which Omni Medical will
endeavor to collect such charges, the methods of collecting, the settling of
disputes with respect to charges, and the writing off of charges that may be
or appear to be uncollectible shall at all times be within the sole discretion
of Omni Medical (but subject to all applicable governmental regulations and
the terms and conditions of applicable provider agreements), and that Omni
Medical does not guarantee the extent to which any charges billed will be
collected. Stat Anesthesia or its duly authorized agent shall have the right
at all reasonable times and upon the giving of reasonable notice to examine,
inspect and copy the records of Omni Medical pertaining to such fees, charges,
xxxxxxxx and collections. At Stat Anesthesia's request, Omni Medical will re-
assign to Stat Anesthesia for collection by Stat Anesthesia, any accounts
which Omni Medical has determined to be uncollectible.
3.9. Bank Accounts and Disbursements. During the term of
this Agreement, Omni Medical is hereby expressly authorized to, and shall
disburse from one or more bank accounts of Stat Anesthesia sums for the
payment of the Cost of Services as that term is defined in Section 7 below,
Omni Medical's compensation and all other costs, expenses and disbursements
which are required or authorized by this Agreement. For administrative
convenience, Omni Medical shall maintain said bank accounts. If the available
balances in such bank accounts is insufficient for the payment of all the
Costs of Services from time to time, Omni Medical shall provide the necessary
funds as part of its obligation to provide working capital under Section 3.20
below.
3.10. Market Research. Omni Medical shall conduct market
research with respect to rates, charges, competitive conditions, competition
and business opportunities for Omni Medical and Stat Anesthesia. Omni Medical
shall compile such information and provide marketing reports and analyses to
Stat Anesthesia. All such marketing services shall be conducted in accordance
with the laws, rules, regulations and guidelines of all applicable
governmental and quasi-governmental agencies.
3.11. Contract Negotiations. Omni Medical shall negotiate
on Stat Anesthesia's behalf, contracts with prepaid health plans, preferred
provider organizations, other group plans, independent physician associations,
hospitals and other health care providers for Stat Anesthesia. Upon request
by Omni Medical, Stat Anesthesia hereby agrees to take any action convenient
or necessary for Stat Anesthesia to approve and enter into any such contracts.
3.12. Management and Planning Reports. Omni Medical shall
supply Stat Anesthesia on a regular, periodic basis, such internal reports as
may be necessary or appropriate for the parties to assist each other in
evaluating the non-medical aspects of the performance and productivity of
their respective employees and contractors as well as in evaluating the
efficiency and effectiveness of the rendition of their respective management
and other non-professional services. Omni Medical shall provide Stat
Anesthesia with data and reports for Stat Anesthesia's exclusive use in
conducting its business, evaluating the performance of Stat Anesthesia
Personnel and for other purposes related to maintaining a high level of
services and improving the efficiency of Stat Anesthesia Personnel. Omni
Medical shall meet periodically with Stat Anesthesia's utilization review
designees, medical directors, Stat Anesthesia's peer review committees and
other representatives of Stat Anesthesia to review the data and reports
provided by Omni Medical, to consult with each other with regard to the
interpretation of such data and reports, to evaluate the application of such
data and reports to the operation of the Offices and to detect and discuss
trends in Stat Anesthesia's business at the Offices.
3.13. Utilization Review. Omni Medical shall establish and
administer a program of Utilization Review of medical care rendered by Stat
Anesthesia that is consistent with the terms of the Payor Agreements, and Stat
Anesthesia agrees that it and the Stat Anesthesia Personnel shall adhere to
the advice of such program to the extent that it is consistent with the
supervising physician's professional judgment.
3.14. Quality Assurance. It is understood that Stat
Anesthesia has an established Quality Assurance Program to assure a standard
of care that is consistent with the laws of the state and federal governments,
with the applicable contractual obligations of Stat Anesthesia, and with the
prevailing standards of in the community. Omni Medical shall assist in the
implementation of this Quality Assurance Program.
3.15. Arrangements with Other Providers. The parties hereto
acknowledge and agree that Omni Medical may enter into arrangements with
health care providers other than Stat Anesthesia, including specialty
physicians and hospitals, for the provision of services to patients.
3.16. Stat Anesthesia Operations. Omni Medical shall have
exclusive authority over all decision-making for ongoing Stat Anesthesia
operations. This authority includes, but is not limited to, the scope of
services, pricing of services, negotiation and execution of contracts,
issuance of debt, and establishment and approval of operating and capital
budgets.
3.17. Compensation of Stat Anesthesia Personnel. Omni
Medical shall have exclusive decision-making authority over the total
compensation of Stat Anesthesia's Personnel. Omni Medical shall have the
authority to establish and implement guidelines for the selection, hiring and
firing of Stat Anesthesia's Personnel; without limiting the generality of the
foregoing, Stat Anesthesia shall not employ or contract with any of its
personnel without the prior consent of Omni Medical. Stat Anesthesia does not
need Omni Medical's consent to contract with Xxxxx Xxxxxxxxx for his
professional services and agrees that Stat Anesthesia may continue to pay his
professional rate of $800 per day.
3.18. Notice of Certain Corporate Actions. During the term
of this Agreement and any extension or renewal thereof, (i) if Stat Anesthesia
shall desire to amend its bylaws or its Articles of Incorporation; or (ii) if
any capital reorganization of Stat Anesthesia, reclassification of the capital
stock of Stat Anesthesia, consolidation or merger of Stat Anesthesia with or
into another corporation, sale, lease, or transfer of all or substantially all
of the property and assets of Stat Anesthesia shall desire to be effected; or
(iii) if Stat Anesthesia shall desire to pay any dividend, in shares of stock
or cash or otherwise, or make any distribution upon the shares of its capital
stock, then in any such case, Stat Anesthesia shall cause to be delivered to
Omni Medical, at least thirty (30) days prior to the record date fixed for the
purpose of determining shareholders entitled to vote on such action, or to
receive such dividend, distribution, or offer, or to receive shares or other
assets deliverable upon such reorganization, reclassification, consolidation,
merger, sale, lease, transfer, dissolution, liquidation, or winding up, as the
case may be, a notice containing a brief description of the proposed action
and stating such record date.
3.19. Proceeds of Sale of Stat Anesthesia and/or Offices.
During the term of this Agreement and any renewal or extension thereof, in the
event all or substantially all the assets, one or more of the Offices or if
any or all of the corporate shares of Stat Anesthesia are sold or otherwise
transferred, such sale or transfer shall not be effective except upon the
prior written consent of Omni Medical, whose consent may be withheld for any
or no reason, and Omni Medical shall be entitled to any and all the proceeds
of such sale or transfer.
3.20. Working Capital. Omni Medical shall be responsible
for providing all working capital required to operate the Stat Anesthesia
business and shall be responsible for any debt servicing related thereto.
4. Compliance with Payor Agreements. Omni Medical agrees to perform
its duties hereunder so as to comply with Stat Anesthesia's obligations under
the Payor Agreements.
5. Conduct of Anesthesia Business. Stat Anesthesia shall be solely
and exclusively in control of all aspects of the delivery of anesthesia
services in its business. The rendition of all professional services shall be
the responsibility of Stat Anesthesia. Except as otherwise set forth herein,
Stat Anesthesia shall have the sole right and authority to hire, employ,
train, supervise, terminate and compensate all of the Stat Anesthesia
Personnel. Omni Medical shall have the authority to establish fees or charges
for the rendition of such services.
6. Exclusivity. During the term of this Agreement, should there occur
any merger, reorganization or other action that changes either ownership,
officers or directors of Stat Anesthesia, Stat Anesthesia or its successors
agree not to contract for or to obtain management or administrative services
with any organization other than Omni Medical.
7. Omni Medical's Compensation.
7.1 Definitions.
7.1.1 "Books and Records" means Stat Anesthesia's
books of account, accounting and financial records and all other records
relating to and used in the conduct of Omni Medical's duties hereunder and
also used in the preparation of reports and financial statements. The books
and records at all times shall be correct and complete and contain correct
and timely entries made with respect to transactions entered into pursuant
hereto in accordance with GAAP.
7.1.2 "Cost of Services" means any and all
expenses of Stat Anesthesia with respect to providing services or related in
any way to the business of Stat Anesthesia, including without limitation the
aggregate compensation of Stat Anesthesia's Personnel, plus the cost of such
Stat Anesthesia Personnel's benefits, if any are offered, Stat Anesthesia's
share of personnel's professional dues, and other expenses and payments
required to be made to or for said Stat Anesthesia Personnel, pursuant to
contractor agreements or otherwise, including expense reimbursements and all
discretionary bonuses, incentives, and/or payments based on profitability or
productivity paid or accrued for Stat Anesthesia Personnel at said Offices;
and the cost of medical malpractice insurance for Stat Anesthesia and Stat
Anesthesia Personnel and the costs of maintaining the Stat Anesthesia
corporate entity and licensure.
7.1.3 "GAAP" means at any particular time generally
accepted accounting principles as in effect at such time. Any accounting term
used in this Agreement shall have, unless otherwise specifically provided
herein, the meaning customarily given in accordance with GAAP, and all
financial computations hereunder shall be computed unless otherwise
specifically provided herein, in accordance with GAAP as consistently applied
and using the same method of valuation as used in the preparation of Omni
Medical's financial statements.
7.1.4 "Net Revenues" means all Revenues net of
allowances for uncollectible accounts and any and all other discounts or
adjustments.
7.2 Assignment to Omni Medical. Stat Anesthesia hereby
assigns to Omni Medical all of Stat Anesthesia's rights and interest in all
sums, including all existing accounts receivable as of this date but excluding
all payments relating to such accounts receivable received by Stat Anesthesia
on or before April 14, 2005 and excluding all accounts receivable billed to
CIGNA Corporation or its affiliates prior to April 14, 2005, and including
accounts receivable for work performed but not yet invoiced, which Stat
Anesthesia receives or becomes entitled to receive for the performance of
services by Stat Anesthesia Personnel and from charges by Stat Anesthesia for
supplies and other items for which Stat Anesthesia is entitled to charge as
reflected in invoices issued by Stat Anesthesia with respect to the Offices.
Notwithstanding the foregoing, no assignment shall be made of any sums or
rights to payment, the assignment of which is prohibited by law (e.g., amounts
receivable from Medicare claims). In lieu of assignment of payments prohibited
by law, Stat Anesthesia hereby agrees to pay to Omni Medical an amount equal
to the amount of any such payments within two (2) business days of receiving
such payments.
7.3 Remittances on Behalf of Stat Anesthesia. Omni Medical
shall pay on Stat Anesthesia's behalf from the Net Revenues the Cost of
Services. Omni Medical shall have access to the Books and Records for the
purpose of determining payments to be made under this Section 7.3.
7.4 Omni Medical's Compensation. As compensation for the
provision of its services hereunder, Omni Medical shall receive the balance,
if any, of the Net Revenues remaining after payments of the Costs of Services
as set forth in Section 7.3.
8. Records.
8.1 Omni Medical agrees to maintain documentation of source
data related to quality assurance, Utilization Review and cost and utilization
reports prepared for and/or submitted to Stat Anesthesia for a period of at
least five years from the close of the contract period specified in this
Agreement.
8.2 Omni Medical agrees to make all of its books and records
pertaining to the services furnished under the terms of this Agreement
(subject to applicable ethical and legal confidentiality requirements)
available for inspection, examination or copying by duly authorized
representatives of Stat Anesthesia.
9. Indemnification.
9.1 Stat Anesthesia agrees, during the term of this
Agreement, to indemnify and hold harmless Omni Medical against any claims or
liabilities arising under this Agreement which are the sole responsibility of
Stat Anesthesia or its employees or agents.
9.2 Omni Medical agrees, during the term of this Agreement,
to indemnify and hold harmless Stat Anesthesia against any claims or
liabilities arising under this Agreement which (i) relate to the
responsibility of Omni Medical or its employees or agents or (ii) arise from
the negligent, reckless or willful act or omission of Omni Medical or its
employees or agents, or (iii) arise from a breach of this Agreement by Omni
Medical or its employees or agents.
10. Confidentiality.
10.1 Patient Records. All patients records, reports and
information obtained, generated, or encountered relating to Offices, which
have not and hereafter are not designated by Omni Medical as being Omni
Medical's property shall at all times be the property of Stat Anesthesia and
so long as in the possession, use or control of either party, shall be kept in
the strictest confidence by both parties. Omni Medical shall instruct all of
its personnel to keep confidential any such information, as well as any
financial, statistical, personnel, and patient information obtained or
encountered relating to Stat Anesthesia or to Stat Anesthesia's operations.
Both parties agree to comply with all applicable laws, regulations and
professional standards concerning the confidentiality of patient records.
10.2 Proprietary Information. Stat Anesthesia recognizes
that due to the nature of this Agreement, Stat Anesthesia will have access to
information of a proprietary nature owned by Omni Medical including, but not
limited to, any and all computer programs (whether or not completed or in use)
and any and all operating manuals or similar materials which constitute the
non-medical systems, policies and procedures, and methods of doing business
developed by Omni Medical for the operation of facilities managed by Omni
Medical. Consequently, Stat Anesthesia acknowledges and agrees that Omni
Medical has a proprietary interest in all such information and that all such
information constitutes confidential and proprietary information and is the
trade secret property of Omni Medical. Stat Anesthesia hereby waives any and
all right, title and interest in and to such trade secrets and confidential
information and agrees to return all copies of such trade secrets and
confidential information related thereto to Omni Medical, at Stat Anesthesia's
expense, upon the termination of the Agreement.
Stat Anesthesia further acknowledges and agrees that Omni Medical is
entitled to prevent its competitors from obtaining and utilizing its trade
secrets and confidential information. Therefore, Stat Anesthesia agrees to
hold Omni Medical's trade secrets and confidential information in strictest
confidence and not to disclose them or allow them to be disclosed, directly or
indirectly, to any person or entity other than those persons or entities that
are employed by or affiliated with Omni Medical or Stat Anesthesia, without
the prior written consent of Omni Medical. Stat Anesthesia shall not, either
during the term of this Agreement, or at any time after the expiration or
sooner termination of this Agreement, disclose to anyone other than persons or
entities who are employed by or affiliated with Omni Medical or Stat
Anesthesia any confidential or proprietary information or trade secret
information obtained by Stat Anesthesia from Omni Medical, except as otherwise
required by law. Stat Anesthesia agrees to require each independent
contractor and employee of Stat Anesthesia, and any such persons or entities
to whom such information is disclosed for the purpose of performance of Omni
Medical's or Stat Anesthesia's obligations under this Agreement, to execute a
confidentiality agreement in a form acceptable to Omni Medical.
Stat Anesthesia acknowledges and agrees that a breach of this Section
10 will result in irreparable harm to Omni Medical which cannot be reasonably
or adequately compensated in damages, and therefore Omni Medical shall be
entitled to injunctive and equitable relief to prevent a breach and to secure
enforcement thereof, in addition to any other relief or award to which Omni
Medical may be entitled.
11. Cooperation.
11.1 Stat Anesthesia and Omni Medical agree that they shall
at all times maintain an effective liaison and close cooperation with each
other to facilitate provision of high quality and cost effective anesthesia
services.
11.2 Each of the parties agrees to cooperate fully with each
other in connection with the performance of their respective obligations under
this Agreement, and both parties agree to employ their best efforts to resolve
any dispute that may arise under or in connection with this Agreement. Subject
to Omni Medical maintaining the confidentiality of patient records and Stat
Anesthesia's confidential information, Stat Anesthesia shall provide to Omni
Medical full and complete access to Stat Anesthesia's premises, charts, books,
and records, in order that Omni Medical can perform its functions hereunder.
11.3 During the term of this Agreement, Stat Anesthesia
shall not add facilities or clinics for the practice of anesthesia by Stat
Anesthesia Personnel without the prior approval of Omni Medical.
11.4 Notwithstanding any other provisions contained herein,
Omni Medical shall not be liable to Stat Anesthesia, and shall not be deemed
to be in default hereunder, for the failure to perform or provide any of the
supplies, services, personnel, or other obligations to be performed or
provided by Omni Medical pursuant to this Agreement if such failure is a
result of a labor dispute, act of God, or any other event which is beyond the
reasonable control of Omni Medical.
12. License of Intellectual Property. During the term of this
Agreement and any extension or renewals thereof, each of the party's hereto
hereby grants royalty free to the other party hereto the non-exclusive right
and license to use any and all trademarks, trade names, service marks, logos,
and other intellectual property rights owned by the granting party. The
licensed intellectual property and any goodwill associated therewith are and
shall at all times remain the property of the granting party.
13. Stat Anesthesia Patient Grievances. Omni Medical agrees to
comply with the complaint, grievance and disenrollment policies of Payors in
resolving any Patient grievances related to the provision of services by Stat
Anesthesia. Stat Anesthesia shall bring to the attention of Omni Medical all
applicable complaints or grievances involving Stat Anesthesia, and Omni
Medical shall promptly, in accordance with any applicable Payor procedures,
investigate such complaints and use its best efforts to resolve them in a fair
and equitable manner. Omni Medical agrees to notify Stat Anesthesia monthly of
any complaints from Patients and of actions taken or proposed with respect to
the disposition of such complaints.
14. Professional Training and Licensing Standards.
14.1 Omni Medical warrants that any provider that it engages
to provide services to Patients is in compliance with applicable local, state,
and federal laws, regulations and/or licensing requirements relating to the
provision of services that they will provide.
14.2 Stat Anesthesia shall provide Omni Medical with a copy
of credentials requirements and agrees to provide Omni Medical with
documentation that each of the Stat Anesthesia Personnel is appropriately
credentialed. This documentation will include proof of licensure and
specialty certification as applicable. This documentation shall be maintained
on file by Omni Medical and reviewed by Stat Anesthesia and Omni Medical on an
annual basis. Stat Anesthesia will maintain oversight responsibility to
assure that all licensed personnel are credentialed according to its managed
care Quality Assurance Program.
15. Arbitration. If a dispute or matter in controversy arises between
the parties hereto which they are unable to resolve to their mutual
satisfaction within ten (10) days of written notice from one to the other of
the existence of such dispute, then either party may notify the other party in
writing (the "Notice") that the dispute be submitted to binding arbitration as
provided herein. The arbitration panel shall consist of three (3) arbitrators,
one of whom shall be selected by Omni Medical, one of which shall be selected
by Stat Anesthesia, each within 10 days of the Notice, and the third shall be
selected by the first two within ten (10) days of their selection. If either
party shall fail to make a selection within ten (10) days, the first
arbitrator shall select the remaining two (2). In the event that any
arbitrator shall resign or otherwise fail to perform his duties, his successor
shall immediately be selected by the party who selected such arbitrator in the
first instance. All arbitration proceedings shall occur in Chicago, Illinois.
The arbitration panel shall have the authority to assess costs and shall award
Attorney's fees. Either party may have recourse to the courts for enforcement
of the award of the arbitration panel. Notwithstanding any provision of this
Section 16, the arbitration panel shall have no authority to override Omni
Medical's exclusive authority over the ongoing major or central operations of
Stat Anesthesia, as specifically set forth in Subsection 3.17 and as otherwise
set forth in this Agreement. With respect to any dispute brought by Stat
Anesthesia, the arbitration panel and any court of competent jurisdiction may
order termination of this Agreement only upon a finding beyond a reasonable
doubt that Omni Medical (a) was grossly negligent, (b) committed a fraudulent
act, or (c) committed illegal acts.
16. Waiver of Violation. The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate as or be
construed as a waiver of any subsequent breach thereof.
17. Miscellaneous.
17.1. Enforceability. If any provision of this Agreement
shall be for any reason invalid or unenforceable, the remaining provisions
shall be nevertheless effective.
17.2. Amendments. This Agreement constitutes the entire
written understanding between the parties and may only be amended by the
agreement of both parties to such amendment.
17.3. Independent Relationship. In the performance of this
Agreement, it is mutually understood and agreed that all licensed
professionals retained by Stat Anesthesia at any of the Offices are at all
times acting and performing as employees of Stat Anesthesia or as independent
contractors with Stat Anesthesia and not employees or agents of Omni Medical.
Omni Medical shall neither have nor exercise any control or direction over the
methods by which Stat Anesthesia Personnel perform their services. The
function of Omni Medical is to provide Stat with all non-professional services
in a competent, efficient, and satisfactory manner. Stat Anesthesia Personnel
shall have no claim under this Agreement or otherwise against Omni Medical for
workers' compensation, unemployment compensation, sick leave, vacation pay,
retirement benefits, Social Security benefits, or any other employee benefits,
all of which shall be the sole responsibility of Stat Anesthesia. Since Stat
Anesthesia's Personnel are not employees of Omni Medical, it shall not
withhold on behalf of Stat Anesthesia Personnel pursuant to this Agreement any
sums for income tax, unemployment insurance, Social Security, or otherwise
pursuant to any law or requirement of any governmental agency, and all such
withholding, if any is required, shall be the sole responsibility of Stat
Anesthesia. Stat Anesthesia shall indemnify and hold harmless Omni Medical
from any and all loss or liability arising with respect to any of the
foregoing benefits or withholding requirements.
17.4 Indemnity. Omni Medical shall indemnify, defend and
hold harmless Stat Anesthesia from any and all loss or liability arising with
respect to any breach of Omni Medical's obligations under this Agreement,
including but not limited to any negligent, wilfull or reckless act or
omission by Omni Medical.
17.5. Assignability. This Agreement and all rights and
obligations hereunder may not be assigned by Stat Anesthesia without the prior
written consent of Omni Medical. Omni Medical may assign this Agreement on
notice to Stat Anesthesia to its parent, commonly owned sister company or
wholly owned subsidiary or in connection with the transfer or sale of all or
substantially all of its assets and business, if such assets include all of
the assets and employees relating to its performance of its obligations
hereunder, or in the event of its merger or consolidation with another company
at any time during the term of this Agreement.
17.6 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Illinois.
17.7 Early Termination. Either party may terminate this
Agreement on notice to the other in the event that the Asset Purchase
Agreement between Stat Anesthesia and Omni Medical Holdings, Inc. dated
contemporaneously with this Agreement is terminated or Omni Medical Holdings,
Inc. has not exercised its right under its Stock Purchase Agreement with Xxxxx
Xxxxxxxxx dated contemporaneously with this Agreement to have its qualified
nominee purchase Stat Anesthesia's capital stock.
IN WITNESS WHEREOF, the parties hereto have caused this
Administrative Services Agreement to be executed by their duly authorized
representatives as of the date first above written.
OMNI MEDICAL HOLDINGS, INC.
By:
/S/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
President
1107 Mt. Rushmore Road Suite 2
Rapid City, South Dakota 57701
STAT ANESTHESIA, P.C.
By:
/s/Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
President
00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
ASSET PURCHASE AGREEMENT
Stat Anesthesia PC
Exhibit F
Form of Stock Purchase Agreement Stat Anesthesia
STOCK PURCHASE AGREEMENT
Stat Anesthesia PC
THIS AGREEMENT is made and entered into as of this 15th day of April, 2005, by
and between Xxxxx Xxxxxxxxx, an individual resident at 00000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000, hereinafter referred to as the "Seller" and Omni
Medical Holdings, Inc., a Utah corporation having a place of business at 0000
Xx. Xxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxx Xxxxxx 00000 hereinafter referred to as
the "Purchaser";
WITNESSETH:
WHEREAS, Purchaser has agreed to purchase the assets of Stat Anesthesia PC
(the "Corporation") pursuant to that certain Asset Purchase Agreement between
the Corporation and the Purchaser dated the same date as this Agreement (the
"Asset Purchase Agreement");
WHEREAS, the Seller is the record owner and holder of the issued and
outstanding shares of the capital stock of Stat Anesthesia P.C., hereinafter
referred to as the "Corporation", an Illinois corporation, which Corporation
has issued capital stock of 10,000 shares of no par value common stock; and
WHEREAS, the Purchaser desires to have its qualified nominee purchase all of
the issued and outstanding capital stock of the Corporation (referred to as
the "Corporation's Stock"), and the Seller desires to sell or cause to be sold
all of the Corporation's stock to such qualified nominee, upon the terms and
subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and in order to consummate the purchase and the
sale of the Corporation's Stock aforementioned, it is hereby agreed as
follows:
1. PURCHASE AND SALE: CLOSING. a. Purchase and Sale of Corporation's Stock.
Subject to the terms and conditions hereinafter set forth, at the closing of
the transaction contemplated hereby, the Seller shall sell, convey and
transfer, or cause to be sold, conveyed or transferred, all of the
Corporation's Stock and deliver to the Purchaser's qualified nominee
certificates representing such stock, and the Purchaser shall cause its
qualified nominee to purchase from the Seller the Corporation's Stock in
consideration of the purchase price set forth in Section 2 and Exhibit "A" of
this Agreement. The certificates representing the Corporation's Stock shall
be duly endorsed for transfer or accompanied by appropriate stock transfer
powers duly executed in blank, in either case with signatures guaranteed in
the customary fashion..
b. Procedure for Closing. The closing of the transactions contemplated by
this Agreement (the "Closing"), shall be held no later than April 15, 2007, at
the offices of Seller's counsel, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx or such other place, date and time as the parties hereto may
otherwise agree (such date to be referred to in this Agreement as the "Closing
Date").
c. Closing Documents of Seller. At the Closing, Seller shall execute and
deliver to Purchaser the following:
(i) Assignment of Shares. An Assignment of Shares in the form of
Exhibit "B" attached hereto, as well as all outstanding share certificates
representing the Corporation's Stock.
(ii) Additional Documents. Any other documents reasonably requested by
Seller to effect this transaction and any schedules or exhibits to this
Agreement which are the obligation of the Seller to provide; provided,
however, that the Seller and Purchaser may agree to allow additional time for
the provision of the documents, schedules or exhibits not reasonably available
to the Seller at the time of Closing.
d. Closing Documents of Purchaser. At the Closing, Purchaser shall deliver
to Seller the following:
(i) Purchase Price. The Purchase Price, payable in accordance with
the provisions of Section 2 below, and all other sums provided hereunder.
(ii) Corporate Resolutions. Certified corporate resolution of the
Purchaser's board of directors ratifying this Agreement and the transaction
contemplated herein.
(iii) Additional Documents. Any other documents reasonably requested by
the Seller to effect this transaction and any schedule or exhibits to this
Agreement which are the obligation of the Purchaser to provide; provided,
however, that the Seller and the Purchaser may agree to allow additional time
for the provision of any documents, schedules, or exhibits not reasonably
available to the Purchaser at the time of Closing.
2. AMOUNT AND PAYMENT OF PURCHASE PRICE. The total consideration and method
of payment thereof are fully set out in Exhibit "A" attached hereto and made a
part hereof.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby warrants and
represents:
a. Organization and Standing. Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois
and has the corporate power and authority to carry on its business as it is
now being conducted. A true and correct copy of:
i. its Certificate of Incorporation and all amendments thereto to date
certified by the Secretary of State of the State of Illinois, and
ii. its Bylaws as then in effect,
will be delivered by Seller to the Purchaser prior to the Closing Date. The
Corporation's minute books will be made available to the Purchaser and its
representatives at any reasonable time or times prior to the Closing for
inspection and will be complete and correct as of the date of any such
inspection.
b. Capitalization. The authorized capital stock of the Corporation consists
of 1,000,000 shares of no par value common stock.
c. Restrictions on Stock.
i. Neither the Corporation nor Seller is a party to any agreement, written or
oral, creating rights in respect to the Corporation's Stock in any third
person or relating to the voting of the Corporation's Stock.
ii. Seller is the lawful owner of all the Corporation's Stock, free and clear
of all security interests, liens, encumbrances, equities and other charges.
iii. There are no existing warrants, options, stock purchase agreements,
redemption agreements, restrictions of any nature, calls or rights to
subscribe of any character relating to the capital stock of the Corporation,
nor are there any securities convertible into such stock.
d. Subsidiaries. The Corporation has no subsidiaries.
e. Authority Relative to this Agreement. Except as otherwise stated herein,
the Seller has full power and authority to execute this Agreement and carry
out the transactions contemplated by it and no further action is necessary by
the Seller to make this Agreement valid and binding upon Seller and
enforceable against it in accordance with the terms hereof, or to carry out
the actions contemplated hereby. The execution, delivery and performance of
this Agreement by the Seller will not:
i. constitute a breach or a violation of the Corporation's Certificate of
Incorporation, By-Laws, or of any law, agreement, indenture, deed of trust,
mortgage, loan agreement or other instrument to which it is a party, or by
which it is bound;
ii. constitute a violation of any order, judgment or decree to which it is a
party or by which its assets or properties are bound or affected; or
iii. result in the creation of any lien, charge or encumbrance upon its
assets or properties, except as stated herein.
f. Documents for Review. The Corporation's documents enumerated in Exhibit
"C", attached hereto and made a part hereof, are true, authentic, and correct
copies of the originals, or, if appropriate, the originals themselves, and no
alterations or modifications thereof have been made.
4. REPRESENTATION AND WARRANTIES OF PURCHASER. The Purchaser hereby
warrants, represents, and covenants to the Seller as follows:
a. Status of Purchaser's Nominee. Purchaser's nominee will be a duly
licensed medical professional in good standing under the laws of the State of
Illinois with the right under the Illinois Professional Service Corporation
Act (805 ILSC 10) to hold the shares of the Corporation.
b. Authority and Enforceability. The Purchaser has all requisite corporate
power and authority to execute and deliver this Agreement and perform all its
obligations hereunder. The execution, delivery and performance of this
Agreement and the share purchase transaction by the Purchaser contemplated
hereby have been duly authorized by all necessary corporate action by the
Purchaser. This Agreement is a valid and binding obligation of the Purchaser
and is enforceable against it in accordance with its terms and conditions.
This Agreement does not violate any of the terms or provisions of the
Purchaser's Articles of Incorporation.
c. No Contravention. The execution and delivery of this Agreement by
Purchaser will not, and does not, violate any law, regulation, decree, writ,
order or injunction and such action will not contravene the provisions of or
constitute a default under any agreement to which the Purchaser is a party.
d. Disclosure. Neither this Agreement nor any of the exhibits, schedules, or
attachments to this Agreement contain any untrue statement of a material fact
or omit a material fact necessary to make each statement contained herein or
therein not misleading.
5. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER. Other than
Seller's retention of the services of Premier Business Group, Inc.,Seller and
Purchaser hereby represent and warrant that there has been no act or omission
by Seller, Purchaser or the Corporation which would give rise to any valid
claim against any of the parties hereto for a brokerage commission, finder's
fee, or other like payment in connection with the transactions contemplated
hereby.
6. TRANSACTIONS PRIOR TO THE CLOSING. Seller hereby covenants the following:
a. Conduct of Corporation's Business Until Closing. Except as Purchaser may
otherwise consent in writing prior to the Closing Date, Seller will not enter
into any transaction, take any action or fail to take any action which would
result in, or could reasonably be expected to result in or cause, any of the
representations and warranties of Seller contained in this Agreement, to be
not true on the Closing Date.
b. Resignations. Seller will deliver to Purchaser at the Closing Date the
resignation of each director and officer of the Corporation, each such
resignation to be effective on the Closing Date.
c. Advice of Changes. Between the date hereof and the Closing Date, Seller
will promptly advise Purchaser in writing of any fact which, if existing or
known at the date hereof, would have been required to be set forth herein or
disclosed pursuant to this Agreement, or which would represent a material fact
the disclosure of which would be relevant to the Purchaser.
7. CONDITION PRECEDENT AND TERMINATION.
a. Condition Precedent. As a condition precedent to Seller's obligation to
sell, convey and transfer the Corporation's Stock pursuant to this Agreement,
Purchaser shall deliver to Seller a legal opinion satisfactory to Seller's
counsel that Purchaser's nominee(s) is duly licensed by the State of Illinois
to practice that particular category of professional service or related
professional services for which the Corporation is approved by the State of
Illinois.
b. Cooperation. Seller shall cooperate with Buyer at Buyer's expense to
assist Buyer qualify its nominee to purchase the Corporation's Stock, such
cooperation being limited to taking the necessary steps to amend the
Corporation's Articles of Incorporation to amend its purpose.
c. Termination. Either party may terminate this Agreement on notice to the
other in the event either (i) the Closing has not taken place by April 15,
2007, or (ii) the Asset Purchase Agreement has been terminated.
8. EXPENSES. Each of the parties hereto shall pay its own expense in
connection with this Agreement and the transactions contemplated hereby,
including the fees and expenses of its counsel and its certified public
accountants and other experts.
9. GENERAL. a. Survival of Representations and Warranties. Each of the
parties to this Agreement covenants and agrees that the Seller's
representations, warranties, covenants and statements and agreements contained
in this Agreement and the exhibits hereto, and in any documents delivered by
Seller to Purchaser in connection herewith, shall survive the Closing Date.
Except as set forth in this Agreement, the exhibits hereto or in the documents
and papers delivered by Seller to Purchaser in connection herewith, there are
no other agreements, representations, warranties or covenants by or among the
parties hereto with respect to the sale and purchase of the Corporation's
Stock.
b. Waivers. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party shall be deemed to constitute a
waiver by the party taking such action or compliance with any representation,
warranty, covenant or agreement contained herein, therein and in any documents
delivered in connection herewith or therewith. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
c. Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered or mailed, first class
mail, postage prepaid:
To Seller: 00000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000
To Purchaser: 0000 Xx. Xxxxxxxx Xxxx, Xxxxx 0, Xxxxx Xxxx, Xxxxx Xxxxxx
00000
or to such other address as such party shall have specified by notice in
writing to the other party.
d. Entire Agreement. This Agreement (including the exhibits hereto, and the
Stock Purchase Agreement-Plum Creek Outpatient, Inc. between Xxxxx Xxxxxxx and
Purchaser, the Consulting Agreement between Xxxxx Xxxxxxxxx and Purchaser and
the Administrative Services Agreement between Seller and Omni Medical
Holdings, Inc., all such agreements dated the same date as this Agreement, and
all documents and papers delivered by Seller pursuant hereto and any written
amendments hereof executed by the parties hereto) constitutes the entire
agreement and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the sale and purchase of
the Corporation's Stock.
e. Sections and Other Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
f. Governing Law. This agreement, and all transactions contemplated hereby,
shall be governed by, construed and enforced in accordance with the laws of
the State of Illinois. The parties herein waive trial by jury and agree to
submit to the personal jurisdiction and venue of a court of subject matter
jurisdiction located in Xxxx County, State of Illinois. In the event that
litigation results from or arises out of this Agreement or the performance
thereof, the parties agree to reimburse the prevailing party's reasonable
attorney's fees, court costs, and all other expenses, whether or not taxable
by the court as costs, in addition to any other relief to which the
prevailing party may be entitled. In such event, no action shall be
entertained by said court or any court of competent jurisdiction if filed more
than one year subsequent to the date the cause(s) of action actually accrued
regardless of whether damages were otherwise as of said time calculable.
g. Conditions Precedent. The Conditions Precedent to the enforceability of
this Agreement are outlined in Exhibit "D", attached hereto and made a part
hereof. In the event that said Conditions Precedent are not fulfilled by the
appropriate dates thereof, this Agreement shall be deemed null and void.
h. Contractual Procedures. Unless specifically disallowed by law, should
litigation arise hereunder, service of process therefore may be obtained
through certified mail, return receipt requested; the parties hereto waiving
any and all rights they may have to object to the method by which service was
perfected.
IN WITNESS WHEREOF, this Stock Purchase Agreement has been executed by each of
the individual parties hereto and signed by an officer thereunto duly
authorized and attested under the corporate seal by the Secretary of the
corporate party hereto, all on the date first above written.
Signed, sealed and delivered in the presence of:
Omni Medical Holdings, Inc.
By:/S/Xxxxxx Xxxxx
It's President
/s/
It's Secretary
/s/Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
EXHIBIT "A"
AMOUNT AND PAYMENT OF PURCHASE PRICE
a. Consideration. As total consideration for the purchase and sale of the
Corporation's Stock, pursuant to this Agreement, the Purchaser shall pay to
the Seller the sum of One Hundred Dollars ($100.00), such total consideration
to be referred to in this Agreement as the "Purchase Price". Check of
Purchaser in the sum of One Hundred Dollars ($100.00) to be delivered to
Seller upon Purchaser's examination and approval of the books and records of
the Corporation.
EXHIBIT "B"
ASSIGNMENT OF SHARES
For Value Received, I hereby sell, assign and transfer unto
_________________. 10,000 Shares of Stat Anesthesia, P.C., an Illinois
corporation ("Corporation") standing in my name on the books of the
Corporation, and do hereby irrevocably constitute and appoint
__________________, Attorney to transfer the said Shares on the books of
the Corporation with full power of substitution in the premises.
Dated________________, 200_
In Presence of:
/s/Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
_____________________________
EXHIBIT "C" DOCUMENTS FOR REVIEW
i. Corporate Articles of Incorporation
ii. Corporate Bylaws
iii. Corporate Minutes and Resolutions
EXHIBIT "D"
CONDITIONS PRECEDENT
NONE
