ASSET PURCHASE AGREEMENT
Exhibit 2.1
THIS AGREEMENT is made and entered into as of the 1st day of April 2009, by and among
ACCESSIBLE HEALTHCARE SERVICES, INC., d/b/a ACCESSIBLE HOME HEALTH CARE, a Florida corporation
(hereinafter referred to as “Seller”), and VALIANT HEALTHCARE, INC., a Delaware corporation
(hereinafter referred to as “Purchaser”).
WHEREAS, Seller is engaged in the business of marketing and selling franchises for the
operation of home health care (medical and non-medical) businesses under the name “Accessible Home
Health Care” (the “Business”); and
WHEREAS, Purchaser desires to purchase from Seller and Seller desires to sell to Purchaser
substantially all of the assets, property, rights, and claims of the Business as a going concern on
the terms and conditions set forth herein;
NOW THEREFORE IN CONSIDERATION of their mutual promises and agreements and the covenants and
representations contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
PURCHASE AND SALE OF ASSETS
1.1 The Transaction. At Closing, Seller shall sell, transfer, assign and deliver to
Purchaser, and Purchaser shall purchase, accept, assume and receive, all rights, title and interest
in, to or arising from the Business from and after the Closing Date, including the Purchased
Assets.
1.2 Purchased Assets. The “Purchased Assets” are all of the assets, properties and
rights as used in, relating to or arising from the conduct of the Business other than the Excluded
Assets (as defined below) including the following:
(a) All office furnishings, display racks, shelves, decorations,
equipment, telephone and telecopy numbers, fixtures and supplies used
in the Business;
(b) All leaseholds, leasehold improvements, fixtures, and other
appurtenances in the leased premises at 000 X. Xxxxxxxxxx Xxxxx, Xxxxx
000, Xxxxx Xxxxxxx, Xxxxxxx 00000 (the “Premises”).
(c) All inventory located at the Premises or in transit to the
Premises, if any.
(d) All customer files, all lists of customers, suppliers and vendors,
all rights and claims under customer contracts, orders,
service agreements, purchase orders, and other similar commitments, if
any;
(e) Any and all documents and records relating to the Purchased Assets
or the operations or products of the Business (including historical
costing and pricing data), and employment and personnel records for
any employees of the Business who are retained by the Purchaser;
(f) Rights under contracts, licenses, instruments or other agreements
relating to the Business, if any, including, without limitation, those
certain franchise agreements with all of the franchisees of Seller and
listed on Schedule 1.2 attached hereto and incorporated by
reference herein (collectively, the “Franchise Agreements”) and that
certain lease and any amendments for the Premises with Coneca
Properties, Ltd. (the “Lease”);
(g) All information systems, programs, software, websites, URLs domain
names and documentation thereof which are used or intended to be used
in the conduct of the Business;
(h) All permits, licenses, franchises, product registrations, filings,
authorizations, approvals, and indicia of authority, if any, that are
transferable to conduct the operations of the Business;
(i) All other assets, properties, rights, and claims related to the
operation of the Business which arise in or from the conduct thereof;
(j) Accounts Receivable existing as of the Closing Date,
including, but not limited to, amounts due and valid claims against
students of the Business for goods or services delivered or rendered or
goods to be delivered or rendered in the ordinary course of business;
(k) Cash, cash equivalents and marketable securities;
and
(l) Contracts of insurance for employee group medical, dental and
life insurance plans, if any.
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1.3 Excluded Assets. The following assets (the “Excluded Assets”) shall not be sold or
transferred to Purchaser:
(a) Any interdivisional, intracompany or affiliate receivable,
advances or indebtedness;
(b) Corporate accounting journals and corporate books of account that
comprise Seller’s permanent accounting or tax records;
(c) Prepaid expenses not assignable to or assumable by Purchaser;
(d) Refunds pertaining to income tax obligations of the Seller;
(e) Corporate minute books and records of Seller;
(f) Any reserve related to any liability or obligation excluded
pursuant to Section 1.5 hereof;
(g) All health care related assets that are not related to franchise
operations both domestically and internationally and/or are not
related to Seller’s doing business as Accessible Home Health Care; and
(h) Any assets identified on Schedule 1.3 attached hereto.
1.4 Assumed Liabilities. Except as provided on Schedule 1.4 hereof, Purchaser
shall not assume and shall not be liable or responsible for any debt, obligation, or liability of
the Business, Seller, or any affiliate of Seller, or any claim against any of the foregoing, of any
kind, whether known or unknown, contingent, absolute, or otherwise. Seller shall forever defend,
indemnify and hold harmless Purchaser from and against any and all liabilities and obligations,
losses, claims, damages (including incidental and consequential damages), costs and expenses
(including court costs and reasonable attorneys’ fees), related to or arising from Seller’s failure
to fully perform and discharge any of its liabilities. Seller further agrees to pay and discharge
all the liabilities included in its balance sheet as of December 31, 2008 as they come due.
ARTICLE II
CONSIDERATION FOR TRANSFER
CONSIDERATION FOR TRANSFER
2.1 Purchase Price. The purchase price (“Purchase Price”) for the Business shall
consist of 10,950,000 shares of Purchaser’s $.0001 par value common stock.
2.2 Payment of Purchase Price. At Closing (as defined herein), the Purchase Price
shall be paid by delivery to Seller of a stock certificate executed by the appropriate officers of
Purchaser.
2.3 Allocation of Consideration. The consideration for the Business and Purchased
Assets shall be allocated by Purchaser and Seller as mutually agreed at Closing.
Such allocation shall be used for all purposes, including preparation and filing of Internal
Revenue Service Form 8594.
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ARTICLE III
THE CLOSING AND TRANSFER OF ASSETS
THE CLOSING AND TRANSFER OF ASSETS
3.1 Closing. The transfer of assets contemplated by this Agreement (the “Closing”),
shall occur at the offices of Seller, 000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxxx, Xxxxxxx
00000, simultaneous with the execution of this Agreement (the “Closing Date”).
3.2 Deliveries by Purchaser. At Closing, Purchaser shall deliver the following:
(a) the Purchase Price in the form of a stock certificate;
(b) if necessary, an assumption agreement for any assumed liabilities;
and
(c) Such other instruments or documents as may be reasonably necessary
to carry out the transactions contemplated hereby.
3.3 Deliveries by Seller. At Closing, Seller shall deliver the following:
(a) a Xxxx of Sale transferring title to the tangible Purchased
Assets;
(b) an assignment agreement transferring any Purchased Assets that are
intellectual property and/or intangible assets; and
(c) Such other endorsements, instruments or documents as may be
reasonably necessary to carry out the transactions contemplated
hereby.
Purchaser acknowledges that in order to expedite the Closing, it may not be possible to obtain
consents to the transfer of the Lease prior to Closing. While Seller shall use reasonable good
faith efforts to obtain such consent prior to the Closing, Purchaser acknowledges and agrees that
the obtaining of such consent is not a condition to Closing and, to the extent not obtained, Seller
and Purchaser shall use commercially reasonable efforts to obtain such consent subsequent to
Closing. Seller is making no representations or warranties regarding the ability to obtain such
consent and Purchaser assumes all risk and liability in the event such consent is not obtained.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as of the date hereof, as set forth below.
4.1 Authority. Seller has full legal right, power and authority, without the consent
of any other person except for the consents specifically enumerated herein, to execute and deliver
this Agreement and to carry out the transactions contemplated hereby. All corporate and other acts
or proceedings required to be taken by Seller to authorize the execution, delivery and performance
of this Agreement and all transactions contemplated hereby have been duly and properly taken.
4.2 Validity. This Agreement has been, and the documents to be delivered at Closing
will be, duly executed and delivered and constitute lawful, valid and legally binding obligations
of the Seller, enforceable in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, moratorium, or similar laws from time to time in effect which
affect creditors’ rights generally, and by legal and equitable limitations on the enforceability of
specific remedies (“Enforceability Exceptions”). The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby will not result in the
creation by Seller of any lien, charge or encumbrance of any kind on the Purchased Assets, and,
except for the Lease, will not constitute a default under or a breach or result in the acceleration
of any provision of (a) the Articles of Incorporation or Bylaws of Seller, (b) any contract,
agreement or other instrument to which the Seller or any of the Purchased Assets is bound, (c) any
order, writ, injunction, decree or judgment of any court or governmental agency binding on or
affecting the Business, or (d) any law, rule or regulation applicable to the Seller, and will not
restrict the ability of the Purchaser to carry on the Business. Except as specifically set forth
in this Agreement, no approval, authorization, consent or other order or action of or filing with
any court, administrative agency or other governmental authority is required for the execution and
delivery by Seller of the transactions contemplated hereby.
4.3 Due Organization. Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, and has full power and authority and all
requisite licenses, permits and franchises to own, lease and operate its assets and to carry on the
Business.
4.4 Title of Purchased Assets. Seller is the sole and exclusive legal and equitable
owner of all right, title and interest in, and has good title to all of the Purchased Assets. None
of the Purchased Assets which Seller purports to own is subject to (i) any security interest,
mortgage, pledge, lien, charge or encumbrance of any kind or character, direct or indirect, whether
accrued, absolute, contingent or otherwise, except minor liens and encumbrances which do not
materially detract from the value or interfere with the present use of such property and assets, or
(ii) other liens, charges or encumbrances that will be released as of the Closing.
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4.5 Condition of Assets. The assets utilized in the Business are being sold AS-IS,
WHERE IS, without any representation or warranty as to condition or use except as expressly set
forth herein. Purchaser shall be responsible for physical inspection of the assets prior to
Closing and is accepting the assets in present condition, with all defects and irregularities.
4.6 Taxes. Seller has filed all required returns, declarations and reports and all
information returns and statements required to be filed or sent by or with respect to taxes of any
kind (including income, excise, franchise, property, value added, employment, sales and use taxes)
for any period ending on or before the Closing Date (“Returns”), or filed for extensions in
connection therewith. All such Returns are correct and complete in all material respects. All
taxes owed by Seller have been or will be paid, or properly reserved on the books of Seller.
Seller has withheld and paid (or reserved for payment) all taxes required to have been withheld and
paid in connection with amounts paid or owing to any employee, independent contractor, creditor or
other party.
4.7 Litigation. Except as disclosed on Schedule 4.7, Seller is not engaged in
or a party to or threatened with any material suit, action, charge, complaint, proceeding,
investigation or legal, administrative, arbitration or other method of settling disputes or
disagreements or governmental investigation, and Seller neither knows, anticipates or has notice of
any basis for any such action. Neither the Seller, nor the Business nor any of the Purchased
Assets is subject to any judgment, order, writ, injunction or decree of any court or any federal,
state, local or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator.
4.8 Brokers. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller without the intervention of any other person
acting on its behalf in such manner as to give rise to any valid claim by any such person against
Seller for a finder’s fee, brokerage commission or other similar payment based on an arrangement
with Seller.
4.9 Entire Business. The sale of the Purchased Assets by Seller to Purchaser pursuant
to this Agreement will effectively convey to Purchaser the Business and all of the tangible and
intangible assets and property used by Seller in connection with the conduct of the Business as
heretofore conducted by Seller (except for the Excluded Assets).
4.10 No Undisclosed Liabilities. Except as reflected or reserved against in the
December 31, 2008 balance sheet of Seller, there are no liabilities against, relating to or
affecting the Business or any of the Purchased Assets, other than liabilities incurred in the
ordinary course of business consistent with past practice which in the aggregate are not material
to the condition of the Business.
4.11 Disclaimer of Additional Representations and Warranties. Except as expressly set
forth in this Agreement, Seller makes no representations or warranties with respect to the Seller
or the Business, or its operations, assets (including, without limitation, Purchased Assets),
liabilities, or conditions.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Seller as of the date hereof, as follows:
5.1. Authority. Purchaser has full legal right, power and authority, without the
consent of any other person, to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. All corporate and other acts or proceedings required to be taken
by Purchaser to authorize the execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly properly taken.
5.2 Validity. This Agreement has been, and the documents to be delivered at Closing
will be, duly executed and delivered by the Purchaser and constitute lawful, valid and legally
binding obligations, of the Purchaser, enforceable in accordance with their respective terms,
subject to the Enforceability Exceptions. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in the creation of any lien,
charge or encumbrance or the acceleration of any indebtedness or other obligation of the Purchaser
and are not prohibited by, do not violate or conflict with any provision of, and do not result in a
default under or a breach of (i) the Purchaser’s Certificate of Incorporation or Bylaws, (ii) any
contract, agreement or other instrument to which the Purchaser is a party, (iii) any regulation,
order, decree or judgment of any court or governmental agency, or (iv) any law applicable to the
Purchaser. No approval, authorization, consent or other order or action of or filing with any
court, administrative agency or other governmental authority is required for the execution and
delivery by Purchaser of this Agreement or such other agreements and instruments or the
consummation by Purchaser of the transactions contemplated hereby.
5.3. Due Organization. The Purchaser is a corporation duly organized, validity
existing and in good standing under the laws of the State of Delaware, with full power and
authority to own or lease its properties and to carry on the business in which it is engaged on or
before the Closing.
5.4 Brokers. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Purchaser without the intervention of any other person
acting on its behalf in such manner as to give rise to any valid claim by any such person against
Purchaser for a finder’s fee, brokerage commission or other similar payment based on an arrangement
with Purchaser.
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ARTICLE VI
COVENANTS OF PURCHASER
COVENANTS OF PURCHASER
Purchaser hereby agrees to keep, perform and fully discharge the following covenants and
agreements:
6.1 Records and Documents. For five (5) years following the Closing Date, Purchaser
shall grant to Seller and its representatives, at Seller’s reasonable request, access to and the
right to make copies of those records and documents, possession of which is transferred to
Purchaser, as may be necessary or useful in connection with Seller’s business and affairs after the
Closing. If during such period, Purchaser elects to dispose of such records, Purchaser shall first
give Seller sixty (60) days written notice during which period Seller shall have the right to take
such records.
6.2 Efforts. Purchaser shall use its commercially reasonable efforts to consummate
the transactions contemplated by this Agreement, and shall not take any other action inconsistent
with its obligations hereunder or which could hinder or delay the consummation of the transactions
contemplated hereby.
ARTICLE VII
EMPLOYEES
EMPLOYEES
7.1 Termination of Employees. Notwithstanding any other provision of this Agreement,
prior to or concurrently with the Closing, Seller shall terminate all employees of the Business and
shall pay to each such employee all wages owing to such employee applicable to the period prior to
Closing. Prior to or concurrently with the Closing, Purchaser shall rehire all employees of Seller
(“Hired Employees”), and all such Hired Employees shall become employees of Purchaser immediately
upon consummation of the Closing. Purchaser agrees to hire the Hired Employees on the same terms
and conditions as such Hired Employees were provided by Seller immediately prior to the Closing.
Purchaser shall credit such Hired Employees with all seniority and accrued vacation earned during
their employment with Seller and Purchaser shall indemnify and hold harmless Seller from any cost,
liability or expenses in connection with any claims by such Hired Employees for vacation accrued
during their employment with Seller.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION; POST-CLOSING OBLIGATIONS
SURVIVAL AND INDEMNIFICATION; POST-CLOSING OBLIGATIONS
8.1. Indemnification. The Seller, on the one hand, and Purchaser, on the other hand,
shall indemnify and hold the other harmless from and against any and all loss, damage, expense
(including court costs, amounts paid in settlement, judgments, reasonable attorneys’ fees or
other expenses for investigating and defending), suit, action, claim, liability or obligation
related to, caused by or arising from any misrepresentation, breach of warranty or failure to
fulfill any covenant or agreement contained herein. Any party seeking indemnification shall give
prompt written notice to the indemnifying party of the facts and circumstances giving rise to the
claim. The loss, damage and expense incurred by a party shall be determined on a net after-tax
basis and shall take into account any insurance proceeds received by such party.
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8.2. Limitations.
(a) All representations and warranties contained in this Agreement shall terminate as
of the Closing.
(b) All damages sought by an indemnified party shall be net of any insurance proceeds
received by such indemnified party.
8.3 Use of Name. After the Closing, Seller shall not use, directly or indirectly, the
name “Accessible Home Health Care” or any similar name.
ARTICLE IX
GENERAL PROVISIONS
GENERAL PROVISIONS
9.1. Amendments and Waiver. No amendment, waiver or consent with respect to any
provision of this Agreement shall in any event be effective, unless the same shall be in writing
and signed by the parties hereto, and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
9.2. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be delivered in person or sent by registered or certified mail, postage
prepaid, or by telecopy, telegram or telex as follows;
(a)
|
If to Seller: | Xxxxxxx Xxxxx, President Accessible Healthcare Services, Inc. 000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxx Xxxxxxx, XX 00000 |
||
(b)
|
If to Purchaser: | Xxxxxx Xxxxxx, President Valiant Healthcare, Inc. 000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxx Xxxxxxx, XX 00000 |
Any party may change its address for receiving by written notice given to the others named above.
9.3. Expenses. Except as otherwise expressly provided herein, each party to this
Agreement shall pay its own costs and expenses in connection with the transactions contemplated
hereby. Any sales, transfer or other taxes or fees applicable to the conveyance and transfer from
Seller to the Purchaser of the Business and the Purchased Assets shall be borne by Purchaser. Any
fees relating to the transfer of the Lease shall be borne by Purchaser. If any action is brought
by either party to enforce any provision of this Agreement, the prevailing party shall be entitled
to recover court costs, arbitration expenses
and reasonable attorneys’ fees. The provisions of this Section shall survive any termination
of this Agreement.
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9.4. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9.5. Successors and Assigns; No Third Party Beneficiaries. This Agreement shall bind
and inure to the benefit of the parties named herein and their respective successors and assigns.
No provision of this Agreement shall be deemed to confer upon third parties any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those existing without
reference to this Agreement. Purchaser shall be entitled to assign its rights and duties under
this Agreement with the written consent of Seller, which shall not be unreasonably withheld.
9.6. Entire Transaction. This Agreement and the documents referred to herein
contain the entire understanding among the parties with respect to the transactions contemplated
hereby and supersedes all other agreements, understandings and undertakings among the parties on
the subject matter hereof.
9.7. Applicable Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Florida, and the parties hereby irrevocably and
unconditionally consent and submit to the jurisdiction of State or Federal courts located in
Broward County, Florida over all matters relating to this Agreement. Each party irrevocably waives
any objection it may have to the venue of any action, suit or proceeding brought in such courts or
to the convenience of the forum. Final judgment in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment, a certified or
true copy of which shall be conclusive evidence of the fact and the amount of any
indebtedness or liability of any party therein described.
9.8. Announcements. No announcement of this Agreement or any transaction
contemplated hereby shall be made by any party prior to the Closing without the written approval
of the other parties hereto (which approval shall not be unreasonably withheld), except as
required by law or the regulations of any securities exchange. Each party shall use its best
effort to maintain the confidentiality of the terms of the purchase and sale transaction
contemplated hereby, except as required by law or as necessary to protect the interest of such
party hereunder.
9.9. Partial Invalidity. In the event that any provision of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
9.10 Time. Time is of the essence of this Agreement and with respect to the
obligations to be performed by the parties under the terms of this Agreement. The parties agree
that the drafting of this Agreement was a joint effort of the parties and their respective
attorneys and each party waives the application of any presumption of law in its respective favor
as a result of the drafting of this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its
behalf by a duly authorized officer all as of the date first written above.
| SELLER: | PURCHASER: | |||||||||
| ACCESSIBEL HEALTHCARE SERVICES, INC. | VALIANT HEALTHCARE, INC. | |||||||||
By:
|
/s/ Xxxxxxx Xxxxx | By: | /s/ Xxxxxx Xxxxxx | |||||||
| Xxxxxxx Xxxxx | Xxxxxx Xxxxxx | |||||||||
| Title: President | Title: President | |||||||||
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LIST OF SCHEDULES
Schedule 1.2
|
List of Franchise Agreements | |
Schedule 1.3
|
Excluded Assets | |
Schedule 1.4
|
Assumed Liabilities | |
Schedule 4.7
|
Litigation |
SCHEDULE 1.2
LIST OF FRANCHISE AGREEMENTS
SCHEDULE 1.3
EXCLUDED ASSETS
None.
SCHEDULE 1.4
ASSUMED LIABILITIES
None.
SCHEDULE 4.7
LITIGATION
None.
