AGREEMENT OF PURCHASE AND SALE (ASSETS)
---------------------------------------
This Agreement of Purchase and Sale (Assets) is made this 1st day of
September, 1997, by and between National Care Resources, Inc. - Colorado, 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000-0000 ("Seller") and Life
Source Services, Inc., 000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Buyer"),
provides for the Buyer to acquire substantially all of the Medicare/Medicaid
assets of the Seller and no other liabilities.
WHEREAS, the Buyer desires to acquire, on the terms and subject to the
conditions contained herein, the Medicare/Medicaid business of the Seller
insofar as the same is conducted through the use of the Acquired Assets; and
WHEREAS, the Seller believes that it is desirable and in the best
interests of the Seller that it sell the Acquired Assets to the Buyer;
NOW, THEREFORE, the parties to this Agreement do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Acquired Assets: The assets of the Seller being acquired by the
Buyer pursuant to the terms hereof, as identified on Schedule 1.1 hereto, and
all other assets of the Seller, tangible or intangible, the use or value of
which is inextricably linked to the assets so identified.
1.2 Agreement: This Agreement of Purchase and Sale (Assets),
including all of its schedules and exhibits and all other documents
specifically referred to in this Agreement that have been or are to be
delivered by a party to this Agreement to the other party in connection with
the Transaction or this Agreement, and including all duly adopted amendments,
modifications, and supplements to or of this Agreement and such schedules,
exhibits and other documents.
1.3 Assumed Liabilities: The Buyer assumes no liabilities.
1.4 Closing: The completion of the Transaction, to take place as
described in Article II.
1.5 Closing Date: The Date on which the Closing actually occurs,
which shall be September 1, 1997, unless otherwise agreed by the parties.
1.6 Consideration: The net sum of Two Hundred Thousand Dollars
($200,000), to be
paid by the Buyer to the Seller at the Closing for the Acquired Assets.
1.7 Transaction: The sale of the Acquired Assets for the
Consideration as contemplated by, and subject to the terms and conditions of,
this Agreement.
ARTICLE II
THE TRANSACTION
2.1 The Transaction. On the Closing Date, subject in all instances
to each of the terms, conditions, provisions and limitations contained in this
Agreement, the Seller shall convey, sell, transfer, and assign to the Buyer,
and the Buyer shall acquire from the Seller, the Acquired Assets. The Seller
retains current and outstanding liabilities due Medicare including any final
settlement credits of unsettled cost reports and any reopened cost reports
prepared by Seller prior to Close. The Buyer assumes no responsibility for
any past Medicare over-payments.
2.2 Manner of Payment. Payment of the Consideration by the Buyer
shall be made by wire transfer of federal funds on the Closing Date to such
account of Seller as shall be described by the Seller to the Buyer in writing.
2.3 Closing. The Closing hereunder shall take place at the offices
of Seller on the Closing Date.
2.4 Other. On and subsequent to the Closing Date, Seller shall allow
Buyer to employ Seller's employees who are engaged in the business with
respect to the Acquired Assets and Seller will allow such employees to remain
in Seller's offices for the period commencing with the Closing Date and ending
on September 30, 1997. Seller will invoice Buyer for its proportionate
share of rental expense incurred by Seller during such period, which has been
determined to be
$4,900 monthly. Subsequent to the Closing and at its sole expense, Buyer is
entitled to receive any settlement credits, or payments, from Medicare
resulting from the amendment and/or adjustment to the Medicare Cost Reports
previously prepared and submitted, by the Seller to
Medicare, during the previous five years. Seller hereby agrees any settlement
credits or payment
are to be submitted directly to Buyer. Furthermore, if any settlement credits
or payments are
adjusted prior to the Closing Date pertaining to the above, the Buyer has the
option to apply such
credits or settlement payments against the purchase price at Closing.
Notwithstanding any of the above, the Buyer is not liable for any retroactive
payments that may be due back to Medicare relating to any time period prior to
the Closing Date.
Purchase Price $128,000
Equipment 30,000
Pre-Paid Consulting (1 Year) 36,000
Office Supplies including
Charts and Records 6,000
Total $200,000
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer hereby represents and warrants to the Seller:
3.1 Organization. The Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Colorado, and
has the requisite corporate power and authority to enter into and to perform
this Agreement.
3.2 Authority. The Buyer has the requisite corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation
of the Transaction contemplated hereby have been duly authorized and approved
by the requisite level of corporate authority of Buyer and no other corporate
proceedings on the part of the Buyer are necessary to approve and adopt this
Agreement or to approve the consummation of the Transaction contemplated
hereby, including delivery of the Consideration. This Agreement has been duly
and validly executed and delivered
by the Buyer and constitutes a valid and binding Agreement of the Buyer,
enforceable in accordance with its terms.
3.3 Absence of Breach. The execution, delivery and performance of
this Agreement, and the performance by Buyer of its obligations hereunder, do
not (i) conflict with, and will not result in a breach of, any of the
provisions of the Articles of Incorporation or Bylaws of Buyer; (ii)
contravene any federal or state law, rule or regulation, or any order, writ,
judgment, injunction, decree, determination, or award affecting or binding
upon the Buyer, in such a manner as to provide a basis for enjoining or
otherwise preventing consummation of the Transaction; (iii)
conflict with or result in a material breach of or a default under any
material indenture or loan or credit agreement or any other material agreement
or instrument to which Buyer is a party; or (iv)
require the authorization, consent, approval or license of any third party.
3.4 Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with this
Agreement or any related transactions based upon any agreements, written or
oral, made by or on behalf of Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows:
4.1 Organization. The Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Colorado, and has the requisite corporate power and authority to carry on its
business as it is now being conducted.
4.2 Authority. This Agreement has been duly and validly executed and
delivered by the Seller and constitutes a valid and binding agreement of the
Seller enforceable in accordance with its terms. The Seller has all requisite
corporate power and authority to enter into this Agreement and to carry out
the Transaction contemplated hereby.
4.3 Absence of Breach. The execution, delivery, and performance of
this Agreement, and the performance by the Seller of its obligations
hereunder, do not (i) conflict with or result in a breach of any of the
provisions of the Articles of Incorporation or Bylaws of the Seller; (ii)
contravene any federal or state law, ordinance, rule or regulation, or
contravene any order, writ, judgment, injunction, decree, determination, or
award of any court or other authority having jurisdiction; (iii) conflict with
or result in a material breach or default under any material indenture or loan
or credit agreement or any other material agreement or instrument to which the
Seller is a party; or (iv) require the authorization, consent, approval or
license of any third party.
4.4 Brokers. No broker, finder, or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with this
Agreement or any related transaction based upon any agreements, written or
oral, made by or on behalf of Seller.
4.5 Title. Seller has good and marketable title to the Acquired
Assets.
ARTICLE V
COVENANTS OF THE BUYER
5.1 Affirmative Covenants. From the date hereof through the Closing
Date, the Buyer will take every action reasonably required of it to ensure the
prompt and expedient consummation of the transaction described herein. The
Buyer shall cooperate with the Seller and its counsel,
accountants and agents in every way in carrying out the Transaction
contemplated herein, and in delivering all documents and instruments deemed
reasonably necessary or useful by Seller or its counsel.
5.2 Expenses. Whether or not the Closing occurs, all costs and
expenses incurred by the Buyer in connection with this Agreement and the
Transaction contemplated hereby shall be paid by the Buyer.
5.3 Publicity. Prior to the Closing any written news releases by the
Buyer pertaining to this Agreement shall be submitted to the Seller for review
and approval prior to release by the Buyer, and shall be released only in a
form approved by the Seller.
ARTICLE VI
COVENANTS OF THE SELLER
6.1 Affirmative Covenants. From the date hereof through the Closing
Date, the Seller will take every action reasonably required of it to ensure
the prompt and expedient consummation of the Transaction described herein.
The Seller shall afford to the Buyer and to the Buyer's representative
reasonable access during normal business hours throughout the period prior to
the Closing and one year after to all its books and records and personnel
relating to the Acquired Assets for the last five years. The Seller will
cooperate with the Buyer and its counsel,
accountant, and agents in delivering all documents and instruments reasonably
necessary or useful to the Buyer.
6.2 Expenses. Whether or not the Closing occurs, all costs and
expenses incurred by the Seller in connection with this Agreement shall be
paid by the Seller.
ARTICLE VII
MISCELLANEOUS
7.1 Termination. This Agreement may be terminated at any time prior
to Closing by mutual consent of the Buyer and the Seller.
7.2 Amendment. This Agreement may be amended at any time by the
Buyer and the Seller only in an instrument in writing signed on behalf of each
party hereto.
7.3 Waiver. At any time prior to the Closing, the Buyer or the
Seller may (i) extend the time for the performance of any of the obligations
or other acts of the other party hereto; (ii) waive any inaccuracies in the
representations and warranties contained herein; or (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in an instrument in writing signed on behalf of such party.
7.4 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or mailed by
certified or registered mail to the other party at the address first written
above, or at such other address as shall be specified from time to time.
7.5 Interpretation. The headings contained in the Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.6 Survival of Representation and Warranties. The representations,
warranties, covenants, and agreements of the parties contained herein shall
survive the Closing and any investigation of the other party made prior
thereto.
7.7 DeMinimis Claims. Neither party shall bring any action against
the other with respect to the subject matter hereof unless the aggregate
amount of all claims so brought exceeds $25,000, provided, however, that the
foregoing shall not prevent or preclude actions seeking injunctive or other
equitable forms of relief.
7.8 Entire Agreement. This Agreement (i) constitutes the entire
Agreement and supersedes all other prior agreements and understandings, both
written and oral, between the parties, with respect to the subject matter
hereof; (ii) is not intended to confer upon any other person any rights or
remedies hereunder; (iii) shall not be assigned by operation of law or
otherwise, and (iv) governed in all respects, including validity,
interpretation and effect, by the internal laws of the State of Colorado,
without regard to the principles of conflict of laws thereof. This Agreement
may be executed in two or more counterparts which together shall constitute a
single agreement.
SELLER: National Care Resources, Inc. - Colorado
BY: --------------------------------
Xxxx X. Xxxxx
Title ________________________________
President
BUYER: Life Source Services, Inc.
BY: _______________________________
Xxxxx Xxxxxx
TITLE: _______________________________
President
Denver Branch - Home Care
Inventory
4 CPUs and Monitors
1 Printer
1 Typewriter
1 Printer stand
1 Small table
1 6-foot folding table
1 Credenza
4 Desks with returns
8 Swivel chairs
1 4 shelf bookcase
1 3 shelf bookcase
1 2 shelf bookcase
5 4 drawer lateral file cabinets
1 2 drawer lateral file cabinet
1 4 drawer metal file cabinet
3 2 drawer metal file cabinets
1 Medical record storage cabinet
1 Medical supply storage cabinet
