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EXHIBIT 10.7
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of the 1st
day of August, 1996, by and among PSC MANAGEMENT CORP., a Delaware corporation
("Purchaser"), ENT CENTER OF ATLANTA, INC., a Georgia corporation ("ENT
Center"), ATLANTA ENT CENTER FOR PHYSICIANS, INC., a Georgia corporation
("Center for Physicians") and ATLANTA-AHP, INC., a Georgia corporation ("AHP")
(ENT Center, Center for Physicians and AHP being referred to herein collectively
as the "Sellers" and individually as a "Seller").
W I T N E S S E T H:
WHEREAS, Sellers desire to sell to Purchaser, and Purchaser desires to
purchase from Sellers, upon the terms and conditions set forth herein, the
assets described herein so that Purchaser may succeed to Sellers' business
operations; and
WHEREAS, the parties hereto desire to make this Agreement for the
purpose of setting forth representations, warranties, covenants, agreements and
conditions in connection with this transaction;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions contained herein, and other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 The following terms used in this Agreement shall have the meanings
set forth below:
(a) Agreement. This Agreement, including the exhibits and
schedules attached hereto.
(b) Closing. The consummation by the parties hereto of the
transactions contemplated hereby.
(c) Effective Date. The commencement of Sellers' business on
August 1, 1996.
(d) Material. What is considered material for purposes of this
Agreement shall be determined in light of the facts and circumstances of the
matter in question as of the relevant date
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stated herein, and no particular monetary amount specified in this Agreement
shall be deemed to determine materiality, except as expressly stated to that
effect herein.
(e) Permitted Exceptions. Whenever used herein, the term
"Permitted Exceptions" shall mean liens for ad valorem taxes not yet due and
payable.
(f) Person. An individual, corporation, limited liability
company, joint venture, partnership, trust, unincorporated association,
government, or any department or agency thereof, or other entity.
(g) Purchased Assets. The assets being purchased by Purchaser
hereunder as described in Item 2.1 hereof.
1.2 Singular/Plural; Gender. Where the context so requires or permits,
the use of the singular form includes the plural, and the use of the plural form
includes the singular, and the use of any gender includes any and all genders.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, effective as of the commencement of business on the Effective Date,
Sellers shall sell, convey, assign, transfer and deliver to Purchaser, and
Purchaser shall purchase, acquire and obtain from Sellers all of Sellers'
interests in those assets described on Exhibit "2.1" attached hereto.
2.2 Purchase Price. The purchase price (the "Purchase Price") to be
paid by Purchaser to Sellers for all of the Purchased Assets shall be $20,000,
to be allocated among the Sellers as set forth in Exhibit "2.2".
2.3 Payment of Purchase Price. The Purchase Price shall be paid by
Purchaser to Sellers as follows: Purchaser shall deliver to each Seller at
Closing that certain Promissory Note from Purchaser to such Seller in the
original principal amount of such Sellers' portion of the Purchase Price, which
Promissory Note shall be in the form attached hereto as Exhibit "2.3" (the
"Promissory Note").
ARTICLE III
CLOSING
3.1 Closing. The Closing shall take place at the offices of Ellis,
Funk, Xxxxxxxx, Xxxxxxxx & Dokson, P.C., 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, on the date agreed to by the parties hereto.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
OF SELLERS
As a material inducement to Purchaser to enter into this Agreement and
to consummate the transactions contemplated hereby, Sellers, jointly and
severally, hereby represent and warrant to and covenant and agree with Purchaser
as follows:
4.1 Organization and Good Standing. Each Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia, and has full corporate power and authority to carry on its business, to
own and operate its properties and assets, to conduct the business in which it
is now engaged, and to consummate the transactions contemplated hereby.
4.2 Title to Purchased Assets; Condition of Purchased Assets; Etc.
(a) Title. Sellers are the sole and unconditional owners of, and
have good and marketable title to, the Purchased Assets being sold hereunder,
free and clear of any and all liens, encumbrances, restrictions, options,
adverse claims and other defects in title, except for Permitted Exceptions. On
the Closing Date, Purchaser shall obtain good and marketable title to the
Purchased Assets free and clear of any and all liens, encumbrances, security
agreements, claims, mortgages and indebtedness of whatsoever type or nature
except for Permitted Exceptions.
(b) Equipment Condition. On the Effective Date, all of the
equipment included in the Purchased Assets shall be in substantially the same
condition as when Purchaser inspected same prior to the date hereof.
4.3 Authority; No Restriction Against Performance. The execution and
delivery of this Agreement, the performance of the covenants and agreements
contained herein and in all documents executed and delivered by or on behalf of
Sellers pursuant hereto and the consummation of the transactions contemplated
hereby have been duly and validly authorized by Sellers, and no further
corporate action of any nature will be required pursuant to the Articles of
Incorporation or By-laws of Sellers or otherwise. This Agreement constitutes the
valid and binding obligation of Sellers, enforceable in accordance with its
terms except as the same may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights and remedies of
creditors generally and general equitable principles and (ii) judicial
discretion in the enforcement of legal or equitable remedies.
4.4 Brokers. No Seller has employed any investment banker, broker,
consultant, finder or intermediary in connection with this Agreement or the
transactions contemplated hereby who might be entitled to a fee or commission
from a Seller or Purchaser.
4.5 Sales and Transfer Taxes. Sellers hereby agree to be fully
responsible for and obligated to pay any and all sales and other transfer taxes
and charges of any kind or nature resulting from or relating or attributable to
the sale and transfer by Sellers to Purchaser of the Purchased Assets.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As a material inducement to Sellers, to enter into this Agreement and
to consummate the transactions contemplated hereby subject to the conditions
contained herein, Purchaser hereby represents and warrants to and covenants and
agrees with Sellers as follows:
5.1 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full corporate power and authority to carry on its business,
to own and operate its properties and assets, to conduct the business in which
it is now engaged and to consummate the transactions contemplated hereby.
5.2 Authority. The execution and delivery of this Agreement, the
performance of the covenants and agreements contained herein and in all
documents executed and delivered by or on behalf of Purchaser pursuant hereto
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by Purchaser, and no further corporate action of any nature
will be required pursuant to the Articles of Incorporation or By-laws of
Purchaser or otherwise. This Agreement constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its terms except as the
same may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting the rights and remedies of creditors generally and
general equitable principles, and (ii) judicial discretion in the enforcement of
legal or equitable remedies.
5.3 Brokers. Purchaser has not employed any investment banker, broker,
consultant, finder or intermediary in connection with this Agreement or the
transactions contemplated hereby who might be entitled to a fee or commission
from either Purchaser or any Seller.
ARTICLE VI
MISCELLANEOUS
6.1 Assignment. This Agreement shall not be assignable in whole or in
part by any party without the prior consent of the other party. No such
assignment shall relieve either party of any of its obligations or duties
hereunder.
6.2 Governing Law. This Agreement and all of the agreements, documents
and instruments executed in connection with the transactions contemplated hereby
shall be governed by and construed in accordance with the laws of the State of
Georgia. If either party is found to be in breach of this Agreement, then the
breaching party shall pay the reasonable legal fees actually incurred by the
non-breaching party in enforcing this Agreement.
6.3 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or by telecopy, or if mailed, by United States certified or
registered mail, prepaid, and three business days shall have elapsed after the
same shall have been mailed to the parties or their assignees at the following
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addresses (or at such other addresses as shall be given in writing by the
parties to one another as provided herein):
To Purchaser: PSC Management Corp.
0000 Xxxxxxxxx Xxxx, X.X.
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: X.X. Xxxxxxxx
Fax: (000) 000-0000
To Sellers: c/o Xxxxx X. Xxxxx, M.D.
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
6.5 Entire Agreement. This Agreement and the exhibits attached hereto
contain the entire agreement between the parties hereto concerning the
transactions contemplated hereby and supersede all prior agreements or
understandings, written or oral, between the parties hereto relating to the
subject matter hereof. No oral representation, agreement or understanding made
by any party hereto shall be valid or binding upon such party or any other party
hereto.
6.6 Amendment. This Agreement may be amended only by a written
instrument duly executed by all parties hereto.
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6.7 Captions and Section Headings. Captions and section headings used
herein are for convenience only and are not a part of this Agreement and shall
not be used in construing it.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SELLERS:
ENT CENTER OF ATLANTA, INC.
By:_________________________________________
President
Attest:______________________________________
Secretary
(CORPORATE SEAL)
ATLANTA ENT CENTER FOR PHYSICIANS, INC.
By:_________________________________________
President
Attest:______________________________________
Secretary
(CORPORATE SEAL)
[SIGNATURES CONTINUED ON NEXT PAGE]
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ATLANTA-AHP, INC.
By:________________________________________
President
Attest:_____________________________________
Secretary
(CORPORATE SEAL)
PURCHASER:
PSC MANAGEMENT CORP.
By:__________________________________________
President
Attest:______________________________________
Secretary
(CORPORATE SEAL)
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EXHIBIT "2.2"
PURCHASE PRICE ALLOCATION
ENT Center of Atlanta, Inc.
Atlanta ENT Center for Physicians, Inc.
Atlanta - AHP, Inc.
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Total $20,000
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