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EXHIBIT 10.7
ASSET PURCHASE AGREEMENT
This is an Agreement between ACTION HEALTHCARE MANAGEMENT SERVICES,
INC., a corporation incorporated under the laws of the State of Arizona, with
its principal place of business at 000 X. Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 ("Seller") and VANILLA, INC., an Arizona corporation, with its
principal place of business at 000 X. Xxxxxxx Xxxx Xxxx, Xxxxx X-000, Xxxxxxx,
Xxxxxxx 85012("Buyer"), each of which agrees as follows:
R E C I T A L S:
WHEREAS, Seller is in the business of providing health care quality
management and cost containment services to various companies providing health
care benefits to their employees and/or employees' dependents;
WHEREAS, Buyer desires to purchase the Acquired Assets, as hereinafter
defined, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, and covenants contained, the parties hereto
understand and agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Each reference contained in this Agreement to:
(a) "Accounts Receivable" shall mean all of the amounts due
Seller as of the Closing Date.
(b) "Acquired Assets" shall have the meaning set forth in
Paragraph 2.1(a) hereof.
(c) "Agreement" shall refer to this Asset Purchase Agreement
and all exhibits and schedules thereto, as the same may be amended from time to
time.
(d) "Assumed Liabilities" shall have the meaning set forth in
Paragraph 2.1(b) hereof.
(e) "Xxxx of Sale and Assumption Agreement" shall refer to the
Xxxx of Sale and Assumption Agreement given by Seller to Buyer for the Acquired
Assets substantially in the form of Exhibit "A."
(f) "Closing" shall mean 5:00 P.M. local time in Phoenix,
Arizona on September 30, 1996, or such later date as may be mutually agreed to
by the parties, on
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which Seller transfers or causes the transfer of the Acquired Assets and the
Assumed Liabilities to Buyer pursuant to the terms of this Agreement, and "day
of Closing" and "Closing Date" shall be deemed to refer to such day.
(g) "Code" shall refer to the Internal Revenue Code of 1986,
as amended from time to time.
(h) "Contracts" shall mean the contracts described on Schedule
1 attached hereto and by this reference incorporated herewith.
(i) "Furniture, Fixtures and Equipment" shall refer to the
Furniture, Fixtures and Equipment described on Schedule 2 attached hereto and by
this reference incorporated herewith.
(j) "Indemnification Event" shall refer to any action,
proceeding or claim for which a person is entitled to indemnification under this
Agreement.
(k) "Indemnitor" shall refer to the indemnifying person in the
case of any obligation to indemnify another person pursuant to the terms of this
Agreement.
(l) "Software" shall mean the Case Management software
acquired by Seller from National Case Management used in the operation of
Seller's business and licensed by Seller from time to time to large case
management companies.
(m) "Name" shall mean the right to the name Action Healthcare
Management Services, Inc.
ARTICLE II
PURCHASE OF ASSETS
2.1 (a) Acquired Assets. Upon the terms and subject to the conditions
of this Agreement, at the Closing Buyer shall purchase from Seller, and Seller
shall sell, assign, transfer and convey to Buyer, without recourse, all right,
title and interest in and to all of the following assets, properties, rights,
contracts and claims as the same shall exist on the Closing Date (collectively,
the "Acquired Assets"):
(i) All ownership interest in the Furniture, Fixtures
and Equipment;
(ii) All Contracts and the payments coming due under
such Contracts after the Closing Date;
(iii) All proceeds, rights, claims, credits, causes of
action or rights of setoff against third parties relating to or arising
out of the Furniture,
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Fixtures and Equipment, and the Contracts after the Closing Date, and
the right to commence suit against such parties for any such claims;
(iv) All of Seller's telephone numbers in Phoenix,
Arizona, including, but not limited to, to wit: (000) 000-0000 and
(000) 000-0000;
(v) The Software;
(vi) The Name;
(vii) The Accounts Receivable.
(b) Liabilities Assumed by Buyer. Upon the terms and subject
to the conditions of this Agreement, Buyer shall, without recourse, assume or be
obligated to pay when due, perform, or discharge the following liabilities,
obligations and related expenses of Seller arising out of, incurred in
connection with, or otherwise relating to, the Acquired Assets (collectively,
the "Assumed Liabilities"):
(i) All liabilities and obligations arising after the
Closing from the Furniture, Fixtures and Equipment, the Contracts, and
the Software; and
(ii) All risk of loss or damage to the Furniture,
Fixtures and Equipment or liability arising as a result of ownership
thereof arising after the Closing Date;
(iii) All claims arising from the sale or licensing of
the Software by Buyer to third parties (excepting claims by third
parties of ownership of the Software);
(iv) Any Taxes which are allocated to Buyer pursuant to
Paragraph 5.1;
(v) The obligations to U.S. West for the telephone
numbers transferred under Paragraph 2.1(a)(iv) above.
2.2 The Purchase Price. The Purchase Price for the Acquired Assets,
excluding the Software, shall be the sum of $442,000 payable by Buyer's
Promissory Note (the "Note") which will bear interest at the rate of 8% per
annum from and after the Close of Escrow. Said Note shall be in the form annexed
hereto as Exhibit "B" and by this reference incorporated herewith, secured by a
Security Agreement in the form of Exhibit "C" attached hereto and by this
reference incorporated herewith. The Note shall bear interest at the rate of 8%
per annum amortized over a period of ten years payable in blended monthly
amortized installments of $5,735.69 with the entire unpaid principal balance and
any interest accrued thereon due and payable on or before September 30, 2001.
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2.3 Allocation of Purchase Price. The Purchase Price shall be allocated
as follows:
Furniture, Fixtures and Equipment $100,000
Future Profits to be Realized on
Contracts $ 40,000
Software $250,000
Covenant Not to Compete $ 10,000
Accounts Receivable $ 42,000
No portion of the Purchase Price shall be allocated to the telephone number or
the future receivables under the Contracts.
2.4 Additional Payments for Software. Buyer agrees that from the first
sale or license of the right to use the Software, Seller shall receive 85% of
the proceeds net of the selling cost of the Software and any training included
in the licensure of the Software by Buyer to a third party (the "Net Proceeds").
The amounts payable hereunder to Seller shall be additional consideration to the
amounts payable under the Note and as additional consideration for the sale of
the Software. Thereafter, Seller shall receive 25% of the Net Proceeds, as
defined above, of any sale of the Software for a period commencing on the
Closing date and ending on September 30, 1999. One-half of the amounts received
by Seller shall be applied to the Note as a prepayment thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
As of the Closing Date, Seller makes the following representations and
warranties to Buyer:
3.1 Organization of Seller, etc. Seller is a corporation duly
organized, validly existing and in good standing under the laws of Arizona, has
the corporate power to execute, deliver and perform its obligations under this
Agreement and has the corporate power to own and lease its properties and to
carry on its business as now being conducted.
3.2 Authorization of Agreement. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized and approved by all necessary corporate action on the
part of Seller, and this Agreement has been duly executed and delivered by
Seller, and represents the valid and binding obligation of Seller enforceable
against it in accordance with its terms, except as enforcement hereof may be
limited by the bankruptcy laws of the United States or other state insolvency
laws.
3.3 No Breach of Statute or Contract, Government Authorizations, etc.
Neither the execution and delivery of this Agreement by Seller nor compliance by
Seller
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with the terms and provisions hereof will conflict with or result in a breach of
any of the terms, conditions or provisions of (i) its Articles of Incorporation
or Bylaws, (ii) any judgment, order, injunction, decree or ruling of any court
or of any governmental authority to which Seller is subject, or (iii) any
agreement, contract or commitment to which Seller is a party or to which the
Acquired Assets are subject, the breach of which (a) would have a material
adverse effect on the Acquired Assets, or (b) would materially impair the
ability of Seller to perform its obligations under this Agreement.
3.4 No Litigation or Adverse Events. To the knowledge of Seller, there
are no suits, actions, administrative, arbitration or other proceedings,
including, without limitation, any counterclaims relating to ownership of the
Acquired Assets or the Assumed Liabilities which are pending or have been
threatened in writing on the date of this Agreement.
3.5 Brokers' or Finders' Fees, etc. No person acting on behalf or under
the authority of Seller is or will be entitled to any broker's or finder's fee
or commission or similar fee, directly or indirectly, from Buyer in connection
with any of the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As of the Closing Date, Buyer makes the following representations and
warranties to Seller:
4.1 Organization of Buyer, etc. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Arizona
and has the power to execute, deliver, and perform its obligations under this
Agreement.
4.2 Authorization of Agreement. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized and approved by all necessary corporate action on the
part of Buyer, and this Agreement has been duly executed and delivered by Buyer
and represents the valid and binding obligation of Buyer enforceable against it
in accordance with its terms, except as enforcement hereof may be limited by the
bankruptcy laws of the United States or other state insolvency laws.
4.3 No Breach of Statute or Contract. Neither the execution and
delivery of this Agreement nor compliance with the terms and provisions hereof
by it will conflict with or result in a breach of any of the terms, conditions
or provisions of (i) the Articles of Incorporation or Bylaws of Buyer, or (ii)
any judgment, order, injunction, decree or ruling of any court or of any
governmental authority, or any laws, statute or regulation, to which Buyer is
subject, or (iii) any agreement, contract or commitment to which Buyer is a
party or is subject, the breach of which would materially impair the ability of
Buyer to perform its obligations under or pursuant to this Agreement. There are
no approvals
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required to permit the consummation by Buyer of the transaction contemplated by
this Agreement.
4.4 Brokers' or Finders' Fees, etc. No Person acting on behalf of or
under the authority of Buyer is or will be entitled to any broker's or finder's
fee or other commission or similar fee, directly or indirectly, from Seller in
connection with any of the transactions contemplated herein.
4.5 Furniture, Fixtures and Equipment, Contracts and Software. Buyer is
acquiring and will use the Furniture, Fixtures and Equipment, Contracts and
Software in the ordinary course of its business for the purpose of furnishing
services to the parties to the Contracts and sale and licensing of Software and
all other lawful purposes.
4.6 Performance. Buyer will faithfully perform and discharge the
Assumed Liabilities when due in the ordinary course of its business.
ARTICLE V
COVENANTS; INDEMNITIES
5.1 Tax Matters.
(a) Cooperation. Prior to and after the Closing, to the extent
consistent with each party's then current published records retention policies,
Seller and Buyer shall cooperate with each other and make available to each
other such tax data and other information as may be reasonably required for the
preparation by Buyer or Seller of any tax returns, elections, claims for refund,
consents or certificates required to be prepared and filed by Buyer or Seller.
(b) Allocation of Purchase Price. The allocation of the
Purchase Price as stated in Paragraph 2.2 is based upon the principles of
Section 1060 of the Code, and Seller and Buyer agree to timely file all federal,
state, local and foreign tax returns and reports consistent with this
allocation. Seller hereby designates its Treasurer as the individual to be
responsible for satisfaction of the provisions of this Paragraph 5.1(b), and
Buyer hereby designates Xxxx Xxxx as the individual to be responsible for
satisfaction of the provisions of this Paragraph 5.1(b).
(c) Seller's Taxes. Seller shall pay when due (i) all capital,
franchise, foreign, federal, state and local income Taxes with respect to
ownership of the Acquired Assets prior to the Closing Date, (ii) subject to
Paragraphs 5.1(d) and 5.1(e), all of Seller's income Taxes arising out of the
transfer of the Acquired Assets from Seller to Buyer, and (iii) all rental,
sale, use, goods and services, excise and personal property Taxes arising out of
or relating to the Contracts which are attributed to any period ending on or
prior to the Closing Date.
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(d) Buyer's Taxes. Buyer shall be liable for and shall pay
when due (i) all capital, franchise, foreign, federal, state and local income
Taxes with respect to ownership of the Acquired Assets and all other Taxes with
respect to the Acquired Assets on or after the Closing Date, (ii) all personal
property Taxes, whether or not billed, arising out of or relating to the
Furniture, Fixtures and Equipment or the Contracts which are attributed to any
period ending after the Closing Date, whether billed or assessed prior to, on or
after the Closing, except as required to be paid by Seller pursuant to Paragraph
5.1(c)(iii) all rental, sale, use, goods and services and excise Taxes arising
out of or relating to the Contracts and Furniture, Fixtures and Equipment which
are attributed to any period after the Closing Date.
(e) Transfer and Sales Taxes. Buyer shall bear and pay all
sale, use, or goods and services Taxes upon or with respect to the sale or
transfer of the Acquired Assets by Seller to Buyer pursuant to this Agreement.
To the extent that applicable law or regulation imposes upon Seller the
obligation to report or pay such Taxes, Buyer shall promptly reimburse Seller
therefor upon receipt of Seller's invoice for the amount of such payment and
such supporting documentation as Buyer may reasonably require. If the sale or
transfer of any or all of the Acquired Assets is exempt from such Taxes, Buyer
and Seller shall provide the other party with appropriate exemption documents if
required by applicable law for qualification for such exemption.
(f) Filing of Tax Returns; Costs. Seller shall be responsible
for the timely filing (including any appropriate extensions) of all Tax returns
ending prior to the Closing Date. Buyer shall be responsible for the timely
filing (including any appropriate extensions) of all Tax returns required by law
to be filed in respect of the Acquired Assets for periods ending on or after
Closing Date. Interest, penalties, refunds, credits and expenses in connection
with Taxes due under this Paragraph 5.1 shall be the responsibility of the party
required to pay the related underlying Taxes.
5.2 Indemnifications, Assumptions of Liability and Related Matters.
(a) Seller shall, from and after the Closing, on an after-tax
basis, indemnify, defend, and hold harmless Buyer and each of its directors,
officers, and employees from and against any and all Damages arising directly
out of: (i) any material breach of any representation or warranty made by Seller
in this Agreement; or (ii) any failure to perform duly and punctually any
material covenant, agreement or undertaking on the part of Seller contained in
this Agreement; or (iii) any material misrepresentation in or omission from any
schedule or exhibit delivered by Seller pursuant to the terms of this Agreement;
or (iv) its fraud in connection with any Acquired Asset or Assumed Liability;
provided, however, that Seller's liability under this Paragraph 5.2(a) will be
limited to direct damages and shall not include indirect, incidental, or
consequential damages, including, without limitation, lost profits.
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(b) Seller shall, from and after the Closing, on a net
after-tax basis, indemnify and hold harmless Buyer and its directors, officers,
and employees from and against any and all damages with respect to Taxes
relating to the Acquired Assets and Assumed Liabilities for the period prior to
Closing except as provided in Paragraphs 5.1(d) and 5.1(e).
(c) Buyer shall, from and after the Closing, on a net
after-tax basis, indemnify and hold harmless Seller and its directors, officers,
and employees from and against any and all damages with respect to Taxes
relating to the Acquired Assets and the Assumed Liabilities for the period on or
after the Closing and as set forth in Paragraphs 5.1(d) and 5.1(e), except as
provided in Paragraph 5.1(c).
(d) Buyer shall, on a net after-tax basis, indemnify, defend,
and hold harmless Seller and its directors, officers, and employees from and
against any and all damages arising directly out of: (i) any material breach of
any representation or warranty made by Buyer in this Agreement; or (ii) any
failure to perform duly and punctually any material covenant, agreement or
undertaking on the part of Buyer contained in this Agreement; or material
misrepresentation in or omission from any schedule or exhibit delivered by Buyer
pursuant to the terms of this Agreement, or (iv) its fraud in connection with
any Acquired Asset or Assumed Liability; provided, however, that Buyer's
liability under this Paragraph 5.2(d) will be limited to direct damages and
shall not include indirect, incidental, or consequential damages, including,
without limitation, lost profits.
(e) Buyer shall indemnify and hold harmless Seller from and
against all damages or claims for loss of any person or entity arising out of or
incident to the ownership, possession, operation, control, use or maintenance of
the Furniture, Fixtures and Equipment, the Contracts or the Software arising
after delivery of the Acquired Assets to Buyer.
(f) Except as otherwise expressly provided in this Paragraph
5.2(f), the representations and warranties contained in this Agreement shall
survive the Closing hereunder until the expiration of one hundred eighty (180)
days following the Closing Date, and, notwithstanding anything to the contrary
contained in Paragraphs 5.2(a) or 5.2(d), there shall be no right to
indemnification with respect to a breach of a representation or warranty unless
a claim with respect thereto is asserted in writing against the Indemnitor prior
to the expiration of one hundred eighty (180) days from the Closing Date,
provided, however, that Seller shall be obligated to indemnify Buyer against any
adverse claims by third parties to the ownership of the Software for a period of
three years from and after the Closing. The representations, warranties and
indemnities contained in Paragraphs 5.2(b), 5.2(c) and 5.2(e) hereof shall
survive until it is no longer possible in law for the indemnified party to
sustain damages by reason of any breach thereof. No party shall be entitled to
payment of indemnity amounts hereunder in respect of an item of Furniture,
Fixtures or Equipment or a Contract unless the damages result from an event that
is indemnifiable under this Paragraph 5.2. The inability of a
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lessee or obligor to make scheduled payments under such Contract shall not of
itself be an indemnifiable event.
(g) Notwithstanding anything to the contrary set forth in this
Paragraph 5.2, it is expressly agreed that, subject to the provisions of this
Paragraph 5.2(g), Buyer has assumed and shall bear the risk of loss under the
Contracts from and after the Closing Date. Buyer acknowledges that the Contracts
are cancelable by the other parties on 30 or 60 day notices, as applicable.
(h) For the purposes of administering the indemnification
provisions of this Paragraph 5.2, the following procedures shall apply from and
after the Closing Date:
(i) Each indemnified party shall notify the
Indemnitor of any Indemnification Event in writing within thirty (30)
days following the receipt of notice of the commencement of any action
or proceeding or within thirty (30) days of (a) the assertion of any
claim against such indemnified party or (b) the discovery by such
indemnified party of any loss, giving rise to indemnity pursuant to
this Paragraph 5.2 and shall indicate in such notification whether such
indemnified party is requesting indemnification with respect to such
Indemnification Event and the amount of indemnification initially
anticipated. The failure to give notice as required by this Paragraph
5.2(h)(i) in a timely fashion shall not result in a waiver of any right
to indemnification hereunder except to the extent that the Indemnitor's
ability to defend against the event with respect to which
indemnification is sought is adversely affected by the failure of the
indemnified party to give notice in a timely fashion as required by
this Paragraph 5.2(h)(i).
(ii) In cases where the Indemnitor has assumed the
defense or settlement with respect to an Indemnification Event, the
Indemnitor shall be entitled to assume the defense or settlement
thereof with counsel of its own choosing, which counsel shall be
reasonably satisfactory to the indemnified party, provided that: (a)
the indemnified party (and its counsel) shall be entitled to continue
to participate at its own cost in any such action or proceeding or in
any negotiations or proceedings to settle or otherwise eliminate any
claim for which indemnification is being sought provided that the
indemnified party shall not be entitled to settle without the approval
of the Indemnitor; and (b) the Indemnitor shall not be entitled to
settle, compromise, decline to appeal, or otherwise dispose of any such
action, proceeding or claim without the consent or agreement of the
indemnified party (which consent will not be unreasonably withheld or
delayed) provided, that if such consent is withheld the Indemnitor's
liability shall be limited to the amount for which the Indemnitor
agreed with the claimant to settle and the Indemnitor shall remain
responsible for its costs and attorneys' fees to the date such
settlement was rejected by the indemnified party and the indemnified
party
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shall be responsible for the costs and attorneys' fees in respect of
such claim thereafter.
5.3 Cooperation.
(a) Each party agrees to make available such personnel and
documents as the other party may reasonably request related to the Acquired
Assets, or the Assumed Liabilities to enable such party to collect, defend,
prosecute and/or settle any claims or litigation relating thereto; provided,
however, that such request shall not unreasonably interfere with the operation
of the business of such party.
(b) Each party agrees to make available such files and
documents, including, without limitation, true and correct copies of Contracts
delivered at Closing, as the other party may reasonably request, and to
cooperate with the other party in order to enable such party to collect any
Taxes from lessees, obligors or borrowers to which such party may be entitled to
reimbursement; provided, however, that such request shall not unreasonably
interfere with the operation of the business of such party and that cooperation
shall be to the extent reasonably consistent with such party's then current
published records retention policies and its reasonably available personnel.
(c) Each party agrees to hold in trust for the benefit of and
remit to the other party any monies received which are properly due to such
other party.
ARTICLE VI
CLOSING
6.1 The Closing. The Closing of the sale of the Acquired Assets and the
Assumed Liabilities hereunder shall be held on or before September 30, 1996. At
the Closing, Buyer shall make, execute and deliver a Note in the form annexed
hereto as Exhibit "B" to Seller, together with the Security Agreement in the
form annexed hereto as Exhibit "C" securing payment and performance of the Note;
and (ii) assume the Assumed Liabilities.
6.2 Conditions to the Obligations of Buyer. The obligations of Buyer to
purchase the Acquired Assets and to assume the Assumed Liabilities shall be
subject to the following conditions: (i) Seller shall have executed and
delivered to Buyer the Xxxx of Sale and Assumption Agreement, and such other
bills of sale, endorsements, assignments and other instruments of transfer and
conveyance as shall reasonably be requested by Buyer to vest in Buyer full
right, title and interest in the Acquired Assets (subject to such exceptions as
are permitted to exist herein); and (ii) Seller shall have prepared Articles of
Amendment to its Articles of Incorporation changing its Name from Action
Healthcare Management Services, Inc. and assigning the right to use the Name to
Buyer. At the Closing, Seller shall allow Buyer to take actual possession and
operating control of the Acquired Assets.
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6.3 Conditions to the Obligations of Seller. The obligations of Seller
to sell the Acquired Assets shall be subject to the following condition: Buyer
shall have executed and delivered to Seller the Xxxx of Sale and Assumption
Agreement and Seller shall have received at the Closing such other instruments
as may be reasonably requested by Seller to effect the assumption by Buyer of
the Assumed Liabilities.
ARTICLE VII
GENERAL
7.1 Amendments. This Agreement may only be amended, modified,
superseded or canceled and any of the terms, covenants, representations,
warranties or conditions hereof may be waived only by an instrument in writing
signed by each of the parties hereto or, in the case of a waiver, by or on
behalf of the party waiving compliance.
7.2 Integrated Contract. This Agreement and the Exhibits and Schedules
hereto, and any written amendments to this Agreement satisfying the requirements
of Paragraph 7.1 constitute the entire agreement between Seller and Buyer
regarding the Acquired Assets and the Assumed Liabilities.
7.3 GOVERNING LAW. THIS AGREEMENT AND THE LEGAL RELATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ARIZONA, WITHOUT REGARD TO THE PRINCIPLES REGARDING CHOICE OF LAW.
7.4 Dispute Resolution. In the event of a dispute between the parties
to this Agreement, the parties agree to promptly meet and confer with the goal
of settling such dispute. If the parties are unable to reach a prompt, amicable
agreement concerning such dispute, the parties agree to submit the matter to
non-binding mediation. If the parties cannot agree on a mediator, the American
Arbitration Association will be requested to provide a mediator with expertise
in container leasing and asset sale transactions. The mediation fee, if any,
shall be divided equally by the parties.
Failing resolution by mediation, such dispute shall be decided
by neutral, binding arbitration in accordance with Arizona Revised Statutes
Section 12-1501, et seq., and not by court action except as provided by Arizona
law for judicial review of arbitration proceedings. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be agreed on by the parties or appointed by
request according to the procedures of the American Arbitration Association.
Each party shall bear its own attorneys' fees and costs and the arbitrator's
fees and disbursements shall be borne equally by the parties.
7.5 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given when sent by registered mail or certified
mail,
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postage prepaid, by overnight courier service, or by telex, telecopy or other
written form of electronic communication (with confirmed receipt to the sender):
If to Seller to: Action Healthcare Management Services, Inc.
000 X. Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Phone: 602/000-0000; Fax: 602/000-0000
Attention: Xxxxxx X. Xxxx
If to Buyer to: Vanilla, Inc.
000 X. Xxxxxxx Xxxx Xxxx, Xxxxx X-000
Xxxxxxx, Xxxxxxx 00000
Phone: 602/000-0000; Fax: 602/000-0000
or to such other address as shall be furnished in writing by Buyer or Seller, as
the case may be, to the other (except that a notice of change of address shall
not be deemed to have been given until received by the addressee).
7.6 Assignment. No assignment may be made by either party of its rights
or obligations hereunder, except to the Permitted Assignee as defined in
Paragraph 1.1(l) above. Unless otherwise agreed in writing, no such assignment
shall affect the rights and obligations of the parties hereunder.
7.7 Headings. The descriptive headings of the several Articles and
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
7.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party hereto.
7.9 Expenses. Except as otherwise specifically set forth herein, Seller
and Buyer will each be responsible for the payment of their own respective costs
and expenses incurred in connection with the negotiations leading up to and the
performance of their respective obligations pursuant to this Agreement.
7.10 Exclusive Remedies. The remedies provided for in this Agreement
shall be the exclusive remedies available to the parties hereunder in regard to
the subject matter hereof or to Acquired Assets or the Assumed Liabilities.
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ARTICLE VIII
COVENANT NOT TO COMPETE
8.1 Covenant Not to Compete. Seller agrees not to engage in, directly
or indirectly, the business of providing health care quality management and cost
containment services to various companies providing health care benefits to
their employees and/or employees' dependents, either directly or indirectly, in
the State of Arizona for a period of five years from and after the Closing Date.
Seller agrees that in the event of a violation of this covenant to compete,
Buyer would not have an adequate remedy at law and that Buyer may enforce the
provisions of this covenant not to compete by injunctive relief.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its officers or representative
thereunto duly authorized, all as of the ___ day of ____________, 1996.
SELLER: ACTION HEALTHCARE MANAGEMENT SERVICES, INC.
By:_______________________________
Name: Xxxxxx X. Xxxx
Title_____________________________
BUYER: VANILLA, INC.
By:_______________________________
Title:_____________________________
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