PURCHASE AGREEMENT
AGREEMENT made the 6 day of MAY, 1998 between XXXXXX PHARMACY AND HOME
HEALTH CENTER, INC. D/B/A XXXXXX PHARMACY AND EL PUEBLO MEDICAL SUPPLY a NEW
MEXICO corporation ("Seller"), and HORIZON Pharmacies, Inc., a Texas
Corporation ("Buyer").
W I T N E S S E T H
WHEREAS, Seller operates retail pharmacy and DME operation doing
business as XXXXXX PHARMACY AND HOME HEALTH CENTER AND EL PUEBLO MEDICAL
SUPPLY (the Drug Store) located at 000 XXXXXXXXXX XXXXX, XXX XXXXX, XXX
XXXXXX 00000 AND ESPANOLA, NM (the "Retail Location").
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
certain assets utilized in connection with and as part of Seller's operation
of the Drug Store upon the terms and conditions stated herein:
NOW; THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby the acknowledged, the parties agree as follows:
1. SALE OF ASSETS.
1.1 ASSETS TO BE PURCHASED Seller hereby agrees to convey, transfer,
assign, and deliver to Buyer on a going concern basis,
and Buyer hereby agrees to purchase from Seller
all of Seller's assets located at or used in connection
with Seller's operation of the Drug Store including but
not limited to:
A. MARKETABLE INVENTORY. All marketable pharmaceutical and retail
Inventory of Seller held for retail sale by the Drug Store; and
B. PRESCRIPTION FILES AND PATIENT PROFILES. All prescription
files, patient profiles and customer list, telephone numbers.
C. FURNITURE, FIXTURES AND EQUIPMENT. Supplies and all furniture,
fixtures, equipment described in Exhibit "A" attached hereto
and made a part hereof, including but not limited to computers,
peripherals, cash registers, refrigerators, typewriters,
microfiche, fax machines, copiers, postage meters, sound
system, alarm system, telephone equipment shelving, counters,
bottles, vials, ointment jars and other usable supplies.
D. COPYRIGHTS, TRADE NAMES, AND TRADEMARKS. All copyrights, trade
names and trademarks associated with the Pharmacy Location(s)
including, but not limited to XXXXXX PHARMACY AND HOME HEALTH
CENTER AND EL PUEBLO MEDICAL SUPPLY and all variations thereof.
1.2 ASSETS NOT PURCHASED BY BUYER Unless otherwise agreed by the
parties in writing. Buyer shall not purchase the following; (i)
consigned merchandise; (ii) merchandise held in layaway; (iii)
merchandise which is damaged, shopworn, faded (including faded
labels) or subject to visible deterioration; (iv) merchandise
which, in Buyer's reasonable opinion, is unsalable because it is
obsolete, its expiration date has expired or it has been
discontinued by the manufacturer; (v) seasonal merchandise; or (vi)
prescription merchandise expiring within 30 days or prescription
merchandise or over-the-counter drugs which are (a) in a partially
filled container with a date which will expire within 90 days of
the closing date; or (b) in a full, sealed container with a date
which is expired; (vii) all third party insurance
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receivables (or services rendered on or before Closing Date, (viii)
all individual charge account receivable for services rendered on
or before Closing Date.
1.3 TELEPHONE NUMBERS. Seller agrees to use all reasonable efforts and
take all action necessary to assure that all telephone numbers used
at the Drug Store shall be transferred without interruption to
Buyer.
2. PURCHASE PRICE.
2.1 COMPUTATION. The purchase price to be paid by the Buyer for the Drug
Stores Assets shall be computed as follows: (i) $900.000.00 for
prescription files, patient profiles, furniture, fixtures, equipment,
goodwill, and non-compete agreement; plus (ii) the discounted fair
market value of all inventory constituting a part of the Drug Store
Assets determined in accordance with Section 2.6, below
2.2 ALLOCATION. The total purchase price described in Section 2.1,
above, shall be allocated as set forth in Exhibit "B" attached
hereto and made a part hereof.
2.3 PAYMENT OF THE PURCHASE PRICE. Buyer shall cause the purchase price
to be paid to Seller as follows:
(a) $ 450,000.00 on the Closing Date by certified or cashier's
check (less of the Xxxxxxx Money Deposit as such term is
defined in Section 2.4, below);
(b) Shares of Buyer's Common stock, par value $.01 per share (the
"HORIZON Common Stock"), equivalent to $ 100,000.00 based upon
the average closing price for the HORIZON common stock as
reported in the Wall Street Journal for the ten (10) business
days immediately preceding the Closing Date, as such term is
defined in Section 7.1, below; and,
(c) The balance in a negotiable promissory note in the form
attached in Exhibit "C" attached hereto secured by the
inventory of the Drug Store;
(d) Buyer shall deduct from the purchase price payable at Closing
an amount equal to the sum of (i) Seller's pro rata share of
personal property taxes as described in Section 2.5.2, below,
and (ii) one half of the fee charged by the thir party
inventory service.
2.4 XXXXXXX MONEY DEPOSIT. Buyer herewith deposits with
_______N/A_______ (the "Escrow Agent"), the sum of $20,000 (the
"Xxxxxxx Money Deposit")), which sum shall be applied to the cash
portion of the purchase price at Closing. In the event Seller fails
to perform each and every covenant and condition required
hereunder, Buyer may terminate this Agreement by giving Seller
written notice and Seller shall return the Xxxxxxx Money to Buyer
within three (3) days of Seller's receipt of such notice. In the
event Buyer fails to perform each and every obligation hereunder,
Seller may terminate this Agreement and retain the Xxxxxxx Money as
liquidated damages. The remedies provided in this Section shall be
the exclusive remedies for a breach of this Section.
2.5 TAXES
2.5.1 SALES, USE, AND TRANSFER TAXES Buyer shall pay any and all
sales, use, and transfer taxes arising out of the sale of
the Drug Store Assets pursuant to this Agreement.
2.5.2 PERSONAL PROPERTY TAXES. Seller shall pay all personal
property taxes attributable to the Drug Store Assets for the
period up to and including the Closing Date, and Buyer shall
pay all personal property taxes attributable to the Drug
Store Assets for the period
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following the Closing Date. The parties shall, using last year's tax
returns, estimate as of the Closing Date the personal property taxes
anticipated to be owed on the Drug Store Assets for the current
calendar year, and Seller's pro rata portion of such estimated taxes
shall be withheld by Buyer from the purchase price described in
Section 2.3. above.
2.6 INVENTORY EVALUATION A physical inventory of the Drug Store Assets
shall be performed on the Closing Date by an independent third party
inventory service. Each party shall pay one-half of the fee charged by
the service company, with Seller's pro rata share of such costs to be
deducted from the purchase price payable by Buyer at Closing. For
purposes of calculating that portion of the purchase price attributed
to inventory under Section 2, above, the marketable inventory shall be
valued as follows, except as otherwise provided herein:
MARKETABLE INVENTORY METHOD OF VALUATION
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Prescription inventory Acquisition cost or AWP less 16%
except for special deal prescription
items or generic items which shall be
valued at acquisition cost
Non-Prescription Inventory Acquisition cost
In the event Seller is unable to establish the acquisition cost of any non-
prescription inventory, the following formula shall be applied in valuing
such inventory.
CATEGORY OF MERCHANDISE METHOD OF VALUATION
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HBA Retail price less 25%
OTC Retail price less 25%
Gifts Retail price less 50%
Cards Retail price less 50%
Cosmetics Retail price less 40%
Watches/Cameras Retail price less 50%
Fragrances Retail price less 25%
Candy (box) Retail price less 40%
Candy (loose) Retail price less 30%
Jewelry Retail price less 50%
Miscellaneous Retail price less 50%
Seasonal Merchandise Retail price less 50%
3. REPRESENTATIONS AND WARRANTIES.
3.1 The Seller does hereby represent and warrant to Buyer as follows:
3.1.1 ORGANIZATION. Seller is a corporation duly organized and
existing in good standing under the laws of its state of
incorporation and is entitled to own and lease its properties and to
carry on its business as and in the places where such properties are
now owned, leased or operated and such business is conducted.
3.1.2 AUTHORITY. The execution, delivery and performance of this
agreement by Seller has been duly authorized by all necessary
corporate action and constitutes a legal, valid, and binding
obligation on Seller enforceable in accordance with its terms.
3.1.3 TITLE TO PROPERTIES. The Seller has good and marketable title
to all of the Drug Store assets, free and clear of all mortgages,
liens, encumbrances, pledges or security
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interests of any nature whatsoever, except for secured debts, if
any, listed on Exhibit "D" attached hereto which shall be satisfied
and released at or prior to closing.
3.1.4 BOOKS AND RECORDS. Seller's books and records which have been
provided to Buyer for inspection are true, correct and complete, and
contain no material omission with respect to Seller's business,
operation or status.
3.1.5 STATEMENTS NOT MISLEADING. No representation, warranty or
other information disclosed to Buyer in connection with this
Agreement omits or will omit to state the material facts necessary
to make such representation, warranty or information not misleading.
3.1.6 COMPLIANCE WITH APPLICABLE LAWS. Seller has received no notice
of violation of any applicable law, regulation or requirement
relating to the operation of the Drug Store, the Drug Store Assets or
the Retail Location, and Seller has no knowledge of or reason to
believe any such violation exists. Seller is in full compliance with
all wages and hour laws, and to the best of its knowledge is not
engaged in any unfair labor practice or discriminatory employment
practice and no complaint of any such practice against Seller is
filed or threatened to be filed with or by the National Labor
Relation Board, the Equal Employment Opportunity Commission or any
other administrative agency, Federal or state, that regulates labor
or employment practices, nor is any grievances filed or threatened
to be filed against Seller by any employee pursuant to any collect
bargaining or other employment agreement to which Seller is a party.
To the Seller's best knowledge it is in compliance with all
applicable Federal and state laws and regulations regarding
occupational safety and health standards and has received no material
complaints from any Federal or state agency or regulatory body
alleging violations of any such laws and regulations.
3.1.7 CONTRACTS. Seller is not party to any contract, understanding
or commitment whether in the ordinary course of business or not,
relating to Seller's operation of the Drug Store which extends
beyond the Closing Date. Buyer will assume the liability of the two
storage units, one in Las Vegas and one in Espanola.
3.1.8 EMPLOYMENT CONTRACTS. Seller is not a party to any oral or
written contract of employment between Seller and any officer or
other employee, and the employment of each of Seller's officers and
all the Drug Store's employees is terminable at will without any
penalty or severance obligation of any kind.
3.1.9 LITIGATION. Seller is not a party to and has no knowledge of
any suit, action, proceeding, investigation, claim, complaint or
accusation pending or threatened against or affecting Seller or the
Drug Story Assets, in any court or before any arbitration panel of
any kind or before or by any Federal, state, local foreign or other
government agency, department, commission, board, bureau,
instrumentality or body, and to the best knowledge and belief of
Seller, there is no basis for any such suit, action, litigation,
proceeding, investigation, claim, complaint or accusation. There is
no outstanding order, writ, injunction, decree, judgment or award by
any court, arbitration panel or government body against or affecting
Seller, Drug Store, the Drug Store Assets or the Retail Location.
3.1.10 EMPLOYEE BENEFITS. All sums due for employee compensation and
benefits and all vacation time owing to any employees of Seller have
been duly and adequately accrued and reflected in the accounting
records of Seller. Seller shall be responsible for all employee
benefits, including but not limited to payment for accrued vacation,
to the Closing Date. To the Seller's best knowledge, all employees
of Seller are either United
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States citizens or resident aliens specifically authorized to engage in
employment in the United States in accordance with all applicable laws.
3.1.11 TAXES
(a) Seller has filed all required Federal, state, local, foreign
and other tax returns, notices and reports (including, but
not limited to, income, property, sales, use, franchise,
capital, stock, excise, added value, employee's income
withholding, social security and unemployment tax returns)
heretofore due; and to Seller's best knowledge all such
returns, notices, and reports are correct, accurate, and
complete.
(b) Seller has made all deposits required to be made in
connection with any tax including but not limited to,
estimated income, franchise, sales, use, and employee
withholding taxes.
(c) Seller has paid or made adequate reserves on its books of
account for all taxes, assessments, fees, penalties, interest
and other governmental charges which have become due and
payable.. and the amounts reflected on such books are to
Seller's best knowledge sufficient for the payment of all
unpaid Federal, state, local, foreign, and other taxes, fees,
and assessment and all interest and penalties thereon with
respect to the periods then added and or all periods prior
thereto.
3.1.12 INVESTMENT PURPOSE. Seller is acquiring the HORIZON Common
Stock for investment, and not with a view to the sale
or distribution thereof. Seller understands and acknowledges that
the transfer of the HORIZON Stock issuable hereunder will be
restricted and that Seller may not sell or otherwise dispose of
such shares unless and until a registration statement under the
Security Act of 1933, as amended (the "Securities Act"), is in
effect with respect thereto and Seller has fully complied with
the Securities Act and all applicable regulations thereunder, or
Seller has received an opinion from Buyer's counsel that the
contemplated sale or other disposition of the HORIZON Common
Stock will not require registration under ther Security Act.
3.1.13 INSURANCE. All inventories, buildings and fixed assets owned
or leased by Seller are and will be adequately insured against fire
to the Closing Date. Valid policies therefor are and will be
outstanding and in force, and the premiums will be paid before
the Closing Date.
3.1.14 NO CHANGES. Until the Closing Date, Seller will not, except
with Buyer's prior written consent: (i) conduct its business except
in the regular and ordinary course; (ii) increase the amount of
compensation currently being paid to employee or agent, or make
any bonus arrangement with any employee or agent; (iii) enter
into any transaction other than in the ordinary course of
business; or (iv) pay out assets being sold to Buyer any debt,
obligation or liability which Buyer has not agreed to assume
under the terms of this Agreement.
3.2 Buyer does hereby represent and warrant to Seller as follows:
3.2.1. ORGANIZATION. Buyer is a corporation duly organized and
existing in good standing under the laws of Texas, and is
entitled to own or lease properties and carry on its business
as and in the places where such properties are now owned, leased
or operated and such business is now conducted.
3.2.2. COMMON STOCK. Buyer has authorized 14,000,000 shares of
HORIZON Common Stock of which approximately 4,600,000 shares are
currently issued and outstanding,
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and 1,000,000 share of preferred stock, par value $0.01 per
share, none of which are currently issued and outstanding.
4. CONDITIONS TO CLOSING
4.1 BUYER'S CONDITIONS TO CLOSING. All obligations of Buyer under this
Agreement are subject to the fulfillment, prior to or at Closing, of
each of the following conditions (unless waived in writing by Buyer).
4.1.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement shall be true
and complete at the Closing Date as if they were made at such
time.
4.1.2. COMPLIANCE. Seller shall have performed and complied with
all terms and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing Date.
4.1.3. CONSENTS. All necessary consents to the transfer of the
Drug Store Assets have been obtained from vendors and other third
party, if any.
4.1.4. NO CASUALTY. The Drug Store's business and property shall
not have been adversely affected in any material way as a result
of any strike, lock-out, accident or other casualty or act of God
of the public enemy, or any judicial, administrative or
governmental proceeding.
4.1.5. LEASE OF RETAIL LOCATION. Buyer shall have executed leases
covering the Retail Locations in Las Vegas and Espanola.
4.1.6. LICENSE TO OPERATE RETAIL PHARMACY. Buyer shall have
obtained a valid license to operate a retail pharmacy under the
HORIZON Pharmacies, Inc. name in the state of NEW MEXICO.
4.2. SELLER'S CONDITIONS TO CLOSING. All obligations of Seller under
this Agreement are subject to the fulfillment, prior to or at Closing,
of each of the following conditions (unless waived in writing by Seller).
4.2.1. REPRESENTATIONS. The representations and warranties of
Buyer contained in this Agreement shall be true and complete at
the Closing Date as if they were made at such time.
4.2.2. COMPLIANCE. Buyer shall have performed and complied with
all terms and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing Date.
5. LIABILITIES NOT ASSUMED BY BUYER. The parties expressly agree and
acknowledge that Buyer shall not, by virtue of this Agreement, the
consummation of the transactions contemplated herein or otherwise, assume
any liabilities or obligations of Seller or any liabilities or obligations
constituting a charge, lien, encumbrance or security interest upon the
Drug Store Assets, regardless of whether such liabilities or obligations
are absolute or contingent, liquidated or unliquidated or otherwise.
6. INDEMNIFICATION.
6.1 SELLER's INDEMNIFICTION OF BUYER. Seller and XXXXX XXXXXXXX shall
indemnify and hold harmless Buyer against and in respect of any and all
liabilities concerning or otherwise connected to the conduct or
operation of the Drug Store as of or prior to
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the Closing Date, and with the exception of liabilities expressly
assumed by Buyer, all liabilities and obligations of the Seller, of
every kind and description, regardless of whether such liabilities
or obligations are absolute or contingent, liquidated or
unliquidated, accrued or otherwise, and regardless of how and when
the same may have arisen, which are asserted against Buyer as a
result of this Agreement or the consummation of the transactions
contemplated herein.
6.2 BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify and hold
harmless Seller against and in respect of any and all liabilities
concerning or otherwise connected to the conduct or operation of the
Drug Store following the Closing Date.
7. CLOSING.
7.1 CLOSING DATE. The closing shall take place at the Retail Location on
or before MAY 30, 1998 (the "Closing Date") but in no event later
than JUNE 13, 1998 unless otherwise agreed by the parties in writing.
7.2 SELLER'S OBLIGATIONS AT CLOSING. Seller shall deliver to Buyer at
closing of this Agreement a Xxxx of Sale effective to vest in Buyer
good and marketable title to the Drug Store Assets, free and clear
of all mortgages, security interest, liens, encumbrances, pledges
and hypothecation of every nature and description and all other
instruments and documents that are necessary or appropriate to the
sale and delivery of the Drug Store Assets.
7.3 BUYER'S OBLIGATIONS AT CLOSING. Buyer shall deliver to Seller at
closing: (i) a certified or cashier's check for the cash portion of
the purchase price provided for in Section 2.3; (ii) the Note and
security Agreement provided for in Section 2.3; and (iii) evidence
of the shares of Common Stock provided for in Section 2.3.
8. MISCELLANEOUS.
8.1 SURVIVAL OF REPRESENTATION, WARRANTIES AND INDEMNIFICATIONS. All of
the representations, warranties and indemnifications of the parties
set forth in this Agreement shall survive the Closing hereof.
8.2 RISK OF LOSS. The risk of loss of damages of Drug Store Assets shall
be upon Seller until the closing hereof.
8.3 CONVENANT NOT TO COMPETE. Except as otherwise herein, XXXXX XXXXXXXX
shall not, for a period of six (6) years after the Closing Date,
directly or indirectly own an equity interest in, operate, manage or
assist any person or entity other than Buyer in operating or
managing, any business which includes a retail pharmacy, nursing
home or home health care company, or which offers for sale or lease
durable medical equipment within the city limits of LAS VEGAS, NEW
MEXICO AND ESPANOLA, NM. The parties expressly agree that XXXXX
XXXXXXXX may serve no more than one (1) day per week as a relief
pharmacist at retail pharmacies not owned or operated by Buyer. The
parties acknowledge that the territorial and time limitations
contained in the paragraph are reasonable and properly required for
the adequate protection of the business to be conducted by Buyer
with the assets and properties to be transferred hereunder and can
not be changed except by written permission of Buyer.
8.4 RIGHT TO ENJOIN BREACH. The parties agree that in the event of a
breach by Seller of any provision of this paragraph, monetary
damages alone would be inadequate and
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Buyer shall, in addition to all other legal remedies, be entitled to
obtain an order enjoining Seller from violating the covenants set
forth herein.
8.5 ACCESS TO RECORDS. Seller shall give Buyer, its counsel, accountants
and representatives, reasonable access during normal business hours
to all of Seller's books, contracts, commitments and records and
furnish Buyer with all information which Buyer reasonably may
request to conduct a financial audit of the last two (2) fiscal
years and unaudited financial data up to Closing Date at Buyer's
expense. The Buyer's audit will be conducted after the Closing Date.
8.6 GOVERNING LAW. This agreement shall be governed and construed in
accordance with the laws of the state of NEW MEXICO.
8.7 ENTIRE AGREEMENT MODIFICATION. This agreement contains the entire
agreement between the parties, and no representations, warranties or
promises, unless contained herein, shall be binding upon the parties
hereto, their successors and assigns. This Agreement may not be
amended or terminated except by an instrument executed by both
parties.
8.8 ASSIGNMENT. This agreement may not be assigned by Buyer without
written consent of Seller, which consent will not be unreasonably
withheld.
8.9 DEFAULT. If either party hereto should default under the terms of
this contract, the non-defaulting party shall be entitled to pursue
any remedy available, at law or in equity. The prevailing party in
any such action for default between the parties shall be entitled to
a reasonable attorney's fees and costs incurred in enforcing the
provisions hereof. In the alternative, if the Seller is not the
defaulting party. Seller may hold and retain the xxxxxxx money paid
by Buyer, as liquidated damages.
8.10 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
BUYER: HORIZON Pharmacies, Inc.
Witness:
/s/ /s/
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Xxxx XxXxxx, President
SELLER: /s/
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Xxxxxx Pharmacy and Home Health Center, Inc.
El Pueblo Medical Supply
Witness:
/s/ /s/
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Xxxxx Xxxxxxxx, President
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