EXHIBIT 2.2
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ASSET PURCHASE AGREEMENT
This Agreement is made and entered into this April 14, 2003, (the
"Agreement") by and between Pacer Health Corporation, a Florida corporation, and
its assignees ("Buyer") and AAA Medical Center, Inc, a Florida corporation
("Seller");
RECITALS:
Sellers collectively own or lease all of the assets used in the
operation of AAA Medical Center located at 0000 Xxxx Xxxxxxx Xx, Xxxxx 000,
Xxxxx, XX 00000 (the "Business").
Buyer desires to purchase all of the assets used in the operation of
the foregoing medical center.
Therefore, in consideration of the premises and the mutual covenants
and agreements here expressed in this Agreement, the parties agree as follows:
ARTICLE I
SALE OF ASSETS
Section 1.1 Sale and Purchase of Assets. On the basis of the
representations and warranties and subject to the terms and conditions set forth
in this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to purchase
from Seller, for the consideration specified in Sections 1.2 and 1.3 of this
Agreement, on the Closing Date referred to in Section 1.4 of this Agreement, all
of the assets of Seller used in the operation of the Business, subject to the
provisions of Section 5.2 of this Agreement, including without limitation the
following assets of Sellers:
(a) All real property owned by any Seller and used in the operation of the
Business, including all buildings, improvements, structures, fixtures and
appurtenances to it;
(b) All tangible personal property owned by any Seller and used in the
operation of the Business, wherever located;
(c) All intangible personal property owned by any Seller and used in the
operation of the Business, wherever located, including without limitation:
(1) All of Sellers' cash on hand, deposits, prepaid expenses and
accounts receivable;
(2) All of Sellers' licenses (but only to the extent such licenses are
transferable), contract rights and easements necessary to or intended for the
operation of the Business;
(3) All of Sellers' rights under the leases of real and personal
property used in the operation of the Business; and
(4) All of Sellers' trademarks, trade names and goodwill related to the
operation of the Business; and
(d) Original or true and correct copies of all books and records of the
Business as may be necessary or desirable for the efficient conduct of the
business of the Business in the ordinary course.
Section 1.2 Purchase Price. The total purchase price to be paid by
Buyer to Sellers for the transfer of the assets shall be $800,000.00 (the
"Purchase Price"), subject to adjustment as provided in Section 1.6 of this
Agreement. Such purchase price shall be paid to Sellers in United States federal
funds, by federal or bank wire transfer, as follows: (a) On the Closing Date the
amount of $400,000.00, which payment can be in the form of a promissory note
with a maximum term of 45 days (the "Promissory Note"). (b) Within 120 days from
the Closing Date the remaining amount of the Purchase Price.
Section 1.3 Assumption of Liabilities. At the Closing or upon payment
under the Promissory Note, Buyer shall assume and agree to pay or discharge the
following:
(a) All liabilities incurred by the Business subsequent to the Closing Date in
the ordinary course of business, all as finally set forth on the Closing Date
Balance Sheet (as defined in Section 1.6);
(b) Leases of the real property used in the operation of the Business; and
(c) The material contracts set forth in Schedule B and other contracts, not
material in nature and not materially adverse in the aggregate, entered into in
the ordinary course of the Business's business.
Section 1.4 Closing. The Closing under this Agreement shall take place
on or before May 30, 2003 at the offices of the Seller, or such other time, date
and place as Buyer and Sellers may agree upon (such time on such date being
referred to as the "Time of Closing" or "Closing" and such date being referred
to as the "Closing Date").
Section 1.5 Action To Be Taken at Closing. Subject to the terms and
conditions set forth in this Agreement, it is agreed that at the Time of Closing
or upon payment under the Promissory Note:
(a) Sellers will deliver to Buyer such bills of sale, deeds, assignments and
other instruments of transfer as are reasonably requested by and satisfactory to
counsel for Buyer, to transfer to Buyer title to the assets described in Section
1.1;
(b) Buyer will pay to Sellers the amounts referred to in Sections 1.2(a);
(c) Subject to the provisions of Section 5.2, Sellers will deliver to Buyer
all consents of third parties necessary for the assignment of leases or contract
rights under this Agreement; and
(d) The parties will deliver, as appropriate, such further certificates,
consents and other documents as may be required to carry out the terms of this
Agreement.
Section 1.6 Sales, Use, Income and Other Taxes. Sales and use taxes,
transfer taxes, investment tax credit recapture, depreciation recapture, and all
other impositions of tax with respect to the transfers contemplated by this
Agreement shall be the responsibility of and shall be borne and paid by Sellers.
In addition, Sellers shall be solely responsible for and shall pay all federal,
state and local income taxes on the earnings of the Business through the Closing
Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers jointly and severally represent and warrant, subject to
Schedule exceptions, as follows:
Section 2.1 Organization and Good Standing. Seller has, and on the
Closing Date or upon payment under the Promissory Note will be, full power and
authority to own and lease its respective properties and to carry on its
respective business as now being conducted. Seller has been, and on the Closing
Date will be, duly qualified and licensed to transact business in all states or
other jurisdictions where the nature of the business transacted or properties
owned by it makes such qualification or licensing necessary.
Section 2.2 Seller Authority and No Breach. Seller has the full right,
power and authority to execute, deliver and carry out the terms of this
Agreement and all documents and agreements necessary to give effect to the
provisions of this Agreement. This Agreement has been duly authorized, executed
and delivered by Seller and the execution of this Agreement and the consummation
of the transactions contemplated will not, with or without the giving of notice
and/or the passage of time, (a) violate any provision of law, statute, rule or
regulation to which any Seller is subject; (b) violate any judgment, order, writ
or decree of any court applicable to any Seller; or (c) subject to the
provisions of Section 5.2, result in the breach or termination of any provision
of, or create rights of acceleration, or constitute a default under or result in
the creation or imposition of any material lien, charge or encumbrance upon any
of the properties or assets of any Seller under the terms of any indenture,
mortgage, deed of trust, contract, corporate charter, bylaw, or other instrument
to which any Seller is a party or by which it is bound. This is a valid and
binding agreement of Seller enforceable in accordance with its terms, except
insofar as enforcement of it may be limited by bankruptcy, insolvency or similar
laws.
Section 2.3 Financial Statements. Seller will deliver to the Buyer last
years banks statements 15 days prior to the Closing:
Section 2.4 Title to and Condition of Assets. On the Closing Date or
upon payment under the Promissory Note, Sellers will convey to Buyer good title
to all of the assets referred to in Section 1.1, free and clear of all liens and
encumbrances with the exception of (i) taxes, a lien not yet due and payable,
and (ii) other liens or encumbrances of record with respect to the real property
to be transferred to Buyer under this Agreement, which liens will not (x)
materially affect the value of any parcel of real property or (y) prevent or
impair any parcel of real property from being used for the purpose for which it
is intended. Each of the material assets, real or personal, to be acquired under
this Agreement is in good operating condition and repair, subject to ordinary
wear and tear, and such assets collectively are sufficient to carry on the
business of the Business as previously conducted. All buildings and improvements
located on any real property used in the business of the Business which is owned
or leased by any Seller, are structurally sound, and each parcel of real
property is zoned to permit the use for which it is intended, without variances
or conditional use permits, except as set forth in Schedule G.
Section 2.5 Conduct of Business. Seller has not transferred or sold any
of the Business's assets (except in the ordinary course of business) to any
third party, nor transferred any assets from the Business to any other entity
directly or indirectly controlled by any of them.
Section 2.6 Compliance with Law. The Business is in compliance in all
material respects, with all applicable federal, state, city, county or other
laws, rules, regulations and ordinances, and Sellers have complied with all
applicable statutes and regulations of all governmental authorities having
jurisdiction over any of them.
Section 2.7 Litigation or Claims. There are no claims, actions, suits,
arbitrations, governmental investigations, inquiries, or proceedings pending or,
to the knowledge of Seller, threatened against the Business, its properties,
business or assets, or the transactions contemplated by this Agreement, before
any court or governmental or administrative body or agency, or any private
arbitration tribunal, except matters for which the defense and any liability are
either fully covered by insurance or assumed by Seller. A brief summary of all
claims, actions, suits, arbitrations, governmental investigations, inquiries and
proceedings is set forth in Schedule D. Seller does not know of any
basis for any claim, action, suit, arbitration, investigation, inquiry, or
proceeding pending before any court or governmental or administrative body or
agency or any private arbitration tribunal. There is no outstanding order, writ,
injunction or decree of any court or arbitrator, government or governmental
agency against or affecting the business of the Business. Section 2.8 Accounts
Receivable. The accounts receivable of the Business, including those due to and
due from third parties will be collectible by Buyer in the ordinary course of
business. Section 2.9 Licenses. Sellers have all necessary material franchises,
licenses, contracts, consents and approvals required by law or governmental
regulations from all applicable federal, state and local authorities and any
other regulatory agencies for the proper conduct of the business of the
Business, and Seller is not in default in any respect under such franchises,
licenses, contracts, consents and approvals. Section 2.10 Trademarks and Trade
Names. To the best knowledge of Seller, the operation of the Business's business
under the trademarks and trade names now in use does not infringe upon or
conflict with any trademark, trade name or other proprietary right of any third
party, and no Seller has received any notice of infringement upon or conflict
with the asserted trademark or trade name rights of others. Section 2.11 Loans
and Other Transactions. Seller has not made any loan to any of its directors,
officers or employees, nor is any such person a party to any material
transaction or contract with any Seller. Section 2.12 Insurance. Sellers have
furnished to Buyer Schedule F which sets forth a list and brief description of
all policies of fire, extended coverage, liability (including without
limitation, medical malpractice and professional liability) and all other kinds
of insurance held by Sellers with respect to the assets to be purchased under
this Agreement. Such policies are and, on the Closing Date will be, in full
force and effect, and no Seller is delinquent with respect to any premium
payments on them.
Section 2.13 Contracts, Obligations and Commitments. Schedule B sets
forth a list and brief summary of all material contracts entered into by any
Seller with respect to the operation of the Business. None of such contracts is,
or on the Closing Date will be, materially adverse to any Seller. There is not,
and, subject to the provisions of Section 5.2, on the Closing Date there will
not be, under any such contract any existing material default or any condition,
event or act which with notice or lapse of time or both, would constitute a
material default.
Section 2.14 Bank Accounts. Sellers have furnished to Buyer Schedule J,
which sets forth a correct and complete list of each bank in which any Seller
has accounts or safe deposit boxes with respect to the business of the Business,
the designation of such accounts, and the names of all persons authorized to
draw on or to have access to them.
Section 2.15 Consents. No consents, approvals or authorizations are
required in connection with the valid execution, delivery or performance of this
agreement, except as set forth in Schedule K. Seller shall be responsible for
obtaining all of such consents, approvals and authorizations.
Section 2.16 No Untrue Representation or Warranty. No representation or
warranty by Seller in this Agreement, nor any statement, schedule or certificate
furnished or to be furnished to Buyer pursuant to it, or in connection with the
transactions contemplated, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to make
the statements contained in it not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants as follows:
Section 3.1 Organization and Good Standing. Buyer is or will be on the
Closing Date, an limited liability company duly formed, validly existing and in
good standing under the laws of the State of Florida, with full corporate power
and authority to carry on the business of the Business as contemplated by this
Agreement.
Section 3.2 Buyer's Authority. Buyer has the full corporate right,
power and authority to execute, deliver and carry out the terms of this
Agreement and all documents and agreements necessary to give effect to the
provisions of this Agreement. This Agreement has been duly authorized, executed
and delivered by Buyer and the execution of this Agreement and the consummation
of the transactions contemplated will not result in any conflict, breach or
violation of or default under any charter, bylaw, statute, judgment, order,
decree, license, law, regulation, mortgage, agreement, deed of trust, indenture
or other instrument to which Buyer is a party or by which it is bound. All
corporate action and other authorizations prerequisite to the execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been taken or obtained by Buyer. This Agreement is a valid and
binding agreement of Buyer enforceable in accordance with its terms, except
insofar as enforcement of it may be limited by bankruptcy, insolvency or similar
laws.
Section 3.3 No Untrue Representation or Warranty. No representation or
warranty by Buyer in this Agreement, nor any statement or certificate furnished
or to be furnished to Seller pursuant to it, or in connection with the
transactions contemplated, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to make
the statements contained in it not misleading.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 4.1 The representations, warranties, covenants, agreements and
indemnifications of Buyer and Seller contained in this Agreement shall survive
the Closing Date for a period of three years and shall be deemed to be material
and to have been relied upon by Buyer and Sellers, notwithstanding any
investigation or inspection made by Buyer or Seller, or on their respective
behalfs.
ARTICLE V
BUYER'S CONDITIONS PRECEDENT TO CLOSING
Buyer's agreement to purchase and pay for the assets to be purchased
under this Agreement is subject to compliance with and the occurrence of each of
the following conditions except as any of them may be waived by it:
Section 5.1 Warranties True and Correct. Each of the representations
and warranties of Seller set forth in this Agreement and in the Schedules
delivered pursuant to it shall be true and correct in all material respects at
and as of the Closing Date and the covenants, agreements and conditions required
by this Agreement to be performed and complied with by Seller shall have been
performed and complied with in all material respects;
Section 5.2 Licenses, Permits, etc. Buyer shall have been granted all
appropriate and necessary licenses, permits, approvals, clearances, provider
numbers, contracts, consents and certifications necessary for the operation of
the Business as previously operated, and Buyer shall have received an executed
lease for the Business premises that is satisfactory to the Buyer, in the
Buyer's sole discretion.
ARTICLE VI
SELLERS' CONDITIONS PRECEDENT TO CLOSING
Sellers' agreement to sell and deliver the assets to be sold under this
Agreement is subject to payment at the Closing of the purchase price as
contemplated in this Agreement and compliance with and the occurrence of each of
the following conditions, except as any of them may be waived by them.
ARTICLE VII
ADDITIONAL AGREEMENTS OF SELLERS
Section 7.1 Inspection of Property. Buyer or its representatives shall
have reasonable rights of inspection of all the Business, property, both real
and personal, to be purchased by Buyer under this Agreement. Buyer will
personally inspect the Business, as well as have it inspected by any licensed
contractors, pest control operators, architects, engineers, and consultants that
Purchaser deems necessary or appropriate in determining whether the Business has
any condition that precludes Buyer from using the Business for its intended
purpose. All inspections will take place before May 15, 2003. Buyer must pay for
all inspections made and for any damage caused by those inspections. Buyer will
arrange in advance with Seller for inspection times that are convenient for all
parties, and the inspections will be conducted in a manner that does not disturb
Seller's peaceful possession of the Business. Seller will cooperate with Buyer
during the inspection period. If Buyer, in its sole discretion, determines that
the Business is unsuitable for Buyer's purposes or that the Business is not
feasible for Buyer's intended use, Buyer may then terminate this Agreement by
giving written notice to Seller on or before May 15, 2003, in which case the
escrow deposit will be returned to the Buyer, this Agreement will be null and
void, and no agent will be entitled to a commission.
Section 7.2 Conduct of Business of the Business Pending the Closing.
From the date of this Agreement and to the Closing Date, Sellers agree that,
unless Buyer otherwise consents in writing, Sellers will, with respect to the
business of the Business:
(a) carry on the business of the Business only in the ordinary course and in
substantially the same manner as each has previously;
(b) maintain and preserve their business organizations intact, maintain their
goodwill and relationships with their present officers, employees, suppliers,
medical staff and others having a business relationship with any of them, and
maintain all licenses and permits requisite to the business and operation of the
Business;
(c) except as permitted by Section 8.2, not transfer or sell any of their
assets (except in the ordinary course of business) or waive or relinquish any
valuable rights, nor transfer any assets from the Business to any other entity
directly or indirectly controlled by any of them;
(d) not commit for any capital expenditure in excess of $25,000; and
(e) not enter into or assume any material contract, including without
limitation any mortgage, pledge, conditional sale, security agreement, or create
or suffer to be created any lien, encumbrance or charge (except for taxes not
due or payable), of any kind upon any of their assets, whether now owned or
subsequently acquired. Buyer acknowledges that Seller will resign from all of
his positions with the Business at the Closing Date.
ARTICLE VIII
[RESERVED]
ARTICLE IX
INDEMNIFICATION BY SELLERS
Section 9.1 Indemnification. Seller shall indemnify and hold harmless
Buyer, its successors and assigns, for a period of three years after the Closing
Date, against and in respect of any damage, loss, cost, expense or liability
(including attorney's fees) resulting to Buyer from any false, misleading or
inaccurate representation, breach of warranty or nonfulfillment of any agreement
or condition on the part of Seller under this agreement or from any
misrepresentation in or any omission from any certificate, list, schedule or
other instrument furnished or to be furnished to Buyer under this Agreement;
ARTICLE X
MISCELLANEOUS
Section 10.1 Successors and Assigns. All the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties, whether so
expressed or not.
Section 10.2 Governing Law. This Agreement has been executed and will
be consummated in the State of Florida and is to be governed by and interpreted
under the laws of that State.
Section 10.3 Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be mailed
first class, registered, with postage prepaid as follows:
________________________
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or such other address as any person may request by notice given as above.
Notices sent as provided in this Agreement shall be deemed filed on the date
mailed.
Section 10.4 Payment of Expenses. Sellers and Buyer shall each pay
their own expenses, including without limitation, the disbursements and fees of
all their respective attorneys, accountants, advisors, agents and other
representatives, incidental to the preparation and carrying out of this
Agreement, whether or not the transactions contemplated are consummated.
Section 10.5 Entire Agreement. This Agreement (including the
Schedules), and all other agreements and documents executed in connection with
it constitutes the entire agreement between the parties with respect to the
subject and no amendment, alteration or modification of this Agreement shall be
valid unless in each instance such amendment, alteration or modification is
expressed in a written instrument duly executed by the party or parties making
such amendment, alteration or modification.
Section 10.6 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 10.7 Headings. The headings contained in this Agreement have
been inserted for the convenience of reference only and shall in no way restrict
or modify any of the terms or provisions of this Agreement.
Section 10.8 Other Documents. Each party to this Agreement will, upon
an appropriate request, execute and deliver to the appropriate party all such
further assignments, endorsements and other documents as may reasonably be
required in order to perfect the sale, transfer and delivery of the assets to be
purchased and sold under this Agreement.
Section 10.9 Waiver. The failure of any party to insist, in any one or
more instances, on performance of any of the terms and conditions of this
agreement shall not be construed as a waiver or relinquishment of any rights
granted under this Agreement, or of the future performance of any such term,
covenant or condition, but the obligations of the parties with respect to shall
continue in full force and effect.
In witness, the parties have executed this Agreement on the date first
above written.
SELLER: BUYER:
AAA MEDICAL CENTER, INC. PACER HEALTH CORPORATION
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By: Xxxxxx Xxxxxx By: Rainier Xxxxxxxx
Title: President Title: Chief Executive Officer
