STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), executed this 8th day of May
2003 to be effective as of the 1ST DAY OF MAY, 2003 (the "Effective Date") by
and among Xxxxx Xxxxx, Rph. and Xxxxxx Xxxx, Rph. (referred to hereinafter
collectively as the "Sellers" or the "Shareholders") acting as the sole
shareholders of RX SOLUTIONS, INC., a Mississippi corporation ("RSI") and
AMERICAN HOSPITAL RESOURCES, INC., a Utah corporation (the "Buyer" or "AMHR").
R E C I T A L S:
WHEREAS, Rx Solutions, Inc., a corporation organized and existing under the laws
of the State of Mississippi with its principal office located in Hattiesburg,
Mississippi (the "Corporation") operates a pharmacy outsourcing business in the
States of Mississippi and Alabama, all as more particularly described on EXHIBIT
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"A" hereto, which Exhibit sets forth the type of services and products provided
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by the Corporation (the "Business"); and
WHEREAS, Shareholders own all issued and non-issued common stock and preferred
stock of any class, whether authorized or not by the Corporation (the "Stock");
and
WHEREAS, the Shareholders desire to sell and transfer the stock of the
Corporation to Buyer, and Buyer desires to purchase the same from Seller
effective on or before May 1, 2003 (the "Closing"), subject to the terms and
conditions set forth in this Agreement; and
WHEREAS, although both Buyer and Shareholders have agreed that time is of the
essence to complete and execute this Agreement and that the transaction it
represents commence by the Effective Date. However, each party herein agrees
that for the ninety (90) days following the Effective Date they will continue to
assemble and complete and/or update and/or modify the Exhibits to this
Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained
in this Agreement, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
SECTION ONE: DISTRIBUTION OF PROPERTY SOLD
Sellers agree to sell to Buyer and Buyer agrees to purchase from Sellers at the
price and under the terms and conditions set forth in this Agreement 1,000
shares of the common capital stock of Rx Solutions, Inc., a Mississippi
corporation. The 1,000 shares of common capital stock comprise all of the
issued and outstanding shares of stock of the Corporation as evidenced by
certificates and numbers of shares per certificate as is listed in EXHIBIT "H",
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which is attached and incorporated by reference. In this connection Sellers
warrant that the certificates so listed constitute all of the issued and
outstanding shares of the common capital stock and there are no other classes of
stock.
SECTION TWO: PURCHASE PRICE
The purchase price to be paid by Buyer to Sellers for all of the shares
described in Section One shall be the total of the Net Proceeds, unless reduced
in accordance with Section 6(B) herein.
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SECTION THREE: TERMS OF PAYMENT
Buyer shall pay to the Sellers the Net Proceeds at the Closing as follows:
A. SHORT-TERM NOTE: The Buyer shall issue a 90-day note or notes (the
"Short-term Note") to the Shareholders for THREE HUNDRED THOUSAND DOLLARS
($300,000) in the aggregate. Such Short-term Note shall be interest-free and
shall all due and payable ninety (90) days from the date of the Closing. A copy
of the Short-term Note is attached hereto as EXHIBIT "O" the terms and
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conditions of which are incorporated herein.
B. SUBORDINATED NOTE: A note or notes ("Subordinated Note") from the Buyer
to the Shareholders for SIX HUNDRED THOUSAND DOLLARS ($600,000) in the
aggregate. All such Notes shall be for a term of five (5) years, shall bear an
annual interest rate of seven percent (7%), and shall be payable on an interest
only basis for the first twenty-four (24) months and then in thirty-six (36)
equal monthly installments of principal and interest payments per month
thereafter, all as shown on the form Subordinated Note attached as EXHIBIT "B".
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C. SERIES "B" PREFERRED STOCK: Buyer shall issue to the Sellers SEVEN
HUNDRED TWENTY THOUSAND (720,000) SHARES of newly issued restricted AMHR SERIES
"B" 6% CONVERTIBLE PREFERRED STOCK ("SERIES "B" PREFERRED"). Such Series "B"
Preferred shall be consistent with all Series "B" Preferred authorized
previously by the AMHR board of directors and shall be issued under SEC Rule
144. Each share of Series "B" Preferred shall be convertible at any time to
five (5) shares of AMHR common stock and where permitted shall have "piggy-back"
registration rights. The Series "B" Preferred shall also contain conditions
that limit and/or restrict transfer of such AMHR Preferred Stock consistent with
private placement regulations under SEC Regulation D. At any time during the
eighteen (18) months after the date of the Closing, Xxxxxxxxxxx X. Xxxxxxx (or
nominee) shall have the sole and absolute right (but not the obligation) to
REPURCHASE from the Sellers up to THREE HUNDRED THOUSAND (300,000) SHARES of
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said Series "B" Preferred from the Shareholders at a repurchase price of TWO
DOLLARS FIFTY CENTS ($2.50) PER SHARE.
SECTION FOUR: RIGHTS CONCERNING NOTE
Buyer shall have the right during the term of this Agreement to make prepayments
on any unpaid balance(s) on either the Short-term and/or Subordinated Note
without penalty; provided, however, that the payments shall not act as a release
from any obligation to make scheduled payments as provided herein, but shall be
applied to and/or reduce the principal balance due. Only the unpaid principal
shall bear interest and all payments shall first be applied on accrued interest
and the balance on principal.
SECTION FIVE: POSSESSION
Possession of the business of the Corporation and the premises leased by the
Corporation, except as limited by the Short-term Note in this Agreement, shall
be effective on May 1, 2003, or as soon afterward as it is physically possible
for Buyer to assume the complete operation of the business of the Corporation.
It is understood that Sellers will cooperate with Buyer and stay on the premises
and help with the operation of the business for a reasonable time after May 1,
2003, to assure a smooth transition in the management of the business.
SECTION SIX: ACCOUNTS PAYABLE, ACCOUNTS RECEIVABLE AND INVENTORY
A. Buyer will assume and agree to pay those obligations consisting of
current trade accounts payable and accrued expenses that constitute the current
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liabilities incurred in the ordinary course of business (the "Accounts Payable
Amount"). These obligations shall include, but not be limited to, normal
claims, normal vendor debt and any accrued payroll obligations of the
Corporation, as well as any Medicaid and/or GPO back charges to the Corporation
that may arise at any time prior to July 31, 2003. In addition, at Closing and
for ninety (90) days thereafter Sellers and Buyer agree to work together to
maintain enough cash on hand (the "Cash-on-Hand") to be used by Buyer to pay
current obligations of the Corporation including those amounts due under the
Accounts Payable Amount.
B. At the Closing, the Sellers agree that the value of the accounts
receivable of the Corporation are approximately $357,524 (the "Accounts
Receivables Stated Amount") and that the value of the inventory shall be
approximately $205,625 (the "Inventory Stated Amount"), the amounts shown on
the March 31, 2002 financial statements. If at Closing the value of the
accounts receivable are less than 90% of the Accounts Receivables Stated Amount
($357,524), then there will be a corresponding dollar-for-dollar reduction in
the Purchase Price. If at Closing the value of the inventory is less than 90%
of the Inventory Stated Amount ($205,625), then there will be a corresponding
dollar-for-dollar reduction in the Purchase Price.
C. At Closing the Buyer shall also assume and agree to pay or perform, as
the case may be, those obligations arising after Closing under those leases and
contracts listed on EXHIBIT "L" attached hereto (the "Assumed Leases, Contracts
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and Liabilities"), which the Buyers expressly elects to assume.
SECTION SEVEN: WARRANTIES AND REPRESENTATIONS OF SELLERS
Sellers warrant, represent, and agree to and with Buyer as follows:
A. On the Closing Date, Sellers will have full, complete, and absolute title
to the shares of common stock described in Section One.
B. Title of Sellers to the shares is free of any lien charge or
encumbrances, and Buyer, on the Closing Date, will receive good and absolute
title to the shares, free of any liens, charges, or encumbrances on them.
C. Corporation is duly organized and existing under and by virtue of the
laws of the State of Mississippi, and are in good standing under the laws of
that state. The Corporation are authorized and qualified to do business in the
State of Mississippi. The shares of the Corporation that are the subject matter
of this sale have been duly issued and are valid, fully paid, and
non-assessable, and constitute the only and sole class of stock issued by the
Corporation.
D. There are no undisclosed or contingent liabilities or title defects of
the Corporation. If any such undisclosed or contingent liabilities, or title
defects, subsequently arise applicable in whole or in part to a period prior to
the Closing Date, Buyer shall give Sellers written notice of them. If such
undisclosed or contingent liabilities or title defects, together with the
obligations in Section B above, create liabilities in excess of the Accounts
Payable Stated Amount and the Closing Cash-On-Hand, then Sellers shall, within
ninety (90) days following receipt of the notice, discharge the liabilities or
undertake to defend and hold Buyer free and harmless from them and shall so
notify Buyer. On the failure of Sellers after such notice to discharge or
undertake to defend against any liability or liabilities within the time
specified, Buyer may settle the liability or liabilities and the liability or
liabilities of Sellers under this paragraph shall be conclusively established by
that settlement.
E. EXHIBIT "C", which is attached and incorporated by reference, is a
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schedule that lists and describes the insurance policies presently in effect
with respect to the property of the Corporation and business of the Corporation.
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The policy or policies procured in lieu of those policies shall provide at least
equal coverage and be issued by a carrier having financial responsibility at
least equal to that of the prior carrier. This policy or policies shall be in
effect on the Closing Date and delivered to Buyer with the delivery of the
common stock sold under this Agreement.
F. There is no litigation pending against the Corporation at the present time.
G. All tax returns required to be made by the Corporation have been properly
prepared, issued, and duly filed pursuant to applicable laws and regulations.
H. The Corporation have not violated any federal, state, or municipal law,
statute, rule, or regulation or any executive order required to be observed or
performed by the corporation.
G. The Corporation presently owns the Equipment and Furnishings items listed
on EXHIBIT "D", all of which shall remain in the ownership and possession of the
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Corporation.
H. The Corporation presently owns the inventory of goods and supplies,
including pharmaceuticals, used, useful or maintained in connection with the
business of the Corporation and as listed in EXHIBIT "E", all of which shall at
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least be equal in value to the Inventory Stated Amount.
I. The Sellers shall provide all accounts and notes receivable of the
business or the Corporation as listed and described in EXHIBIT "F" (the
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"Receivables").
J. The Sellers shall provide all patient, medical, personnel and other
records related to the business of the Corporation (including both hard and
microfiche copies), and all manuals, books and records used in operating the
Business, including, without limitation, personnel policies and files and
manuals, accounting records, and computer software.
K. The Sellers shall work in good faith to assist the Buyers in retaining
all licenses, permits, registrations, certificates, consents, accreditation,
approvals and franchises necessary to operate and conduct the business of the
Corporation, together with assignments thereof, if required, and all waivers
which Sellers currently have, if any, of any requirements pertaining to such
licenses, permits, registrations, certificates, consents, accreditation,
approvals and franchises.
L. The Sellers shall work in good faith to retain all goodwill of the
Corporation, and, to the assist in retaining all warranties (express or implied)
and rights and claims related to the assets or the operation of the business of
the Corporation.
M. All prepaid expenses of the business of the Corporation shall remain
property of the Corporation.
N. All contract and leasehold rights and interests pursuant to contracts for
purchase or lease of personal property, contracts for purchase, sale or lease of
pharmaceuticals, supplies, equipment, goods or services (including those
provided to long- term care facilities) currently furnished or to be furnished
in connection with the business of the Corporation and that are Assumed Leases,
Contracts and Liabilities (as such term is defined in Section Ten) shall remain
property or obligations of the Corporation.
O. All intangible or intellectual property owned, leased, licensed or
possessed by either Seller or Shareholder and utilized in connection with the
Business, including without limitation, the name "Rx Solutions" or any other
names under which the Business operates or which the Business uses and/or
derivatives thereof shall remain property of the Corporation.
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P. The parties acknowledge and agree that Sellers are not conveying to Buyer
any of the Excluded Assets as described on EXHIBIT "G" attached hereto, and
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that, following Closing, Buyer will not have any right, title, interest or
obligation with respect to the Excluded Assets.
Q. Attached hereto as EXHIBIT "I" are true and correct copies of Seller's
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audited balance sheets as of December 31, 2002, and its audited income
statements for the same date (the "Fiscal Year Financial Statements"), and the
interim unaudited balance sheets and income statement of Seller for the period
ended March 31, 2003 (collectively, the "Interim Financial Statements" which
with the Fiscal Year Financial Statements shall be the "Financial Statements").
The Financial Statements are based on the books and records of Seller and
present fairly, in compliance with income tax basis accounting principles, the
financial position of Seller as of, and the results of its operations for, the
periods specified.
The books and records of Seller are in such order and completeness so that an
unqualified audit may be performed for any period prior to Closing not already
audited. Seller and Shareholder shall fully and readily cooperate with Buyer in
Buyer's attempt to perform an audit of Seller for any period prior to Closing
not already audited.
Since December 31, 2002 there has been no:
1. material change, financial or otherwise, which has, or could reasonably
be expected to have, an adverse effect on any of the Assets, the Business of the
Corporation or future prospects of the Business of the Corporation, or in the
results of the operations of the Corporation;
2. loss, damage or destruction of or to any of the Assets, whether or not
covered by insurance;
3. sale, lease, transfer or other disposition by Seller and/or the
Corporation of, or mortgages or pledges of or the imposition of any lien, charge
or encumbrance on, any portion of the Assets, other than those made in the
ordinary course of business;
4. increase in the compensation payable by Seller and/or the Corporation
to Shareholder, any of Seller's employees, directors, independent contractors
or agents, or any increase in, or institution of, any bonus, insurance, pension,
profit-sharing or other employee benefit plan or arrangements made to, for or
with the employees, directors, Shareholder, independent contractors or agents of
Seller;
5. cumulative net operating loss has been incurred in the operation of
the Business;
6. adjustment or write-off of Receivables or reduction in reserves for
Receivables outside of the ordinary course of business;
7. change in the accounting methods or practices employed by Seller and/or
the Corporation or change in depreciation or amortization policies;
8. issuance or sale by Seller, the Corporation, and/or Shareholder, or
contract or other commitment entered into by Seller, the Corporation, and/or
Shareholder, for the issuance or sale of any limited or Shareholdership units or
securities convertible into or exchangeable for ownership of the Corporation;
9. payment by the Corporation of any dividend, distribution or
extraordinary or unusual disbursement or expenditure or inter-company payable;
10. sale, transfer, pledge, mortgage or other disposition of any of the
Assets (except inventory and equipment held for rent in the ordinary course of
business);
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11. merger, consolidation or similar transaction; or solicitations
therefor;
12. federal, state or local statutes, rule, regulation, order or case
adopted, promulgated or decided which, to the best knowledge of Seller and
Shareholder, adversely affects the Business or Assets;
13. strike, work stoppage or other labor dispute adversely affecting the
Business; or
14. termination, waiver or cancellation of any rights or claims of
Seller, under contract or otherwise.
SECTION EIGHT: MEDICARE, MEDICAID AND OTHER THIRD-PARTY PAYORS
The Corporation participates in the Medicare and Medicaid Programs (the
"Programs"). A list of and copies of its existing Medicare and Medicaid
contracts or, if such contracts do not exist, other documentation evidencing
such participation (collectively, the "Program Agreements") are included in
EXHIBIT "J" attached hereto. The Corporation is and will be at the time of
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Closing, in full compliance with all of the terms, conditions and provisions of
the Program Agreements.
No notice of any offsets against future reimbursements under or pursuant to the
Programs has been received by either Corporation or Shareholder, nor is there
any basis therefor. There are no pending appeals, adjustments, challenges,
audits, litigation, notices of intent to recoup past or present reimbursements
with respect to the Programs. The Corporation have not been subject to or
threatened with loss of waiver of liability for utilization review denials with
respect to the Programs during the past twelve (12) months, nor the Corporation
or Sellers received notice of any pending, threatened or possible
de-certification or other loss of participation in, any of the Programs.
Corporation currently have contractual arrangements with other third party
payors. A list of and copies of its existing other third party payor
contract(s) are included in EXHIBIT "K" attached hereto. Corporation are, and
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will be at the time of Closing, in full compliance with all of the material
terms, conditions and provisions of such contracts.
All liabilities and contractual adjustments of the Corporation under any third
party payor or reimbursement programs have been properly reflected and
adequately reserved for in the Financial Statements. In the event that,
following Closing, Buyer suffers any offsets against any reimbursement under any
third-party payor or reimbursement programs due to Buyer relating to the
Business for periods on or prior to the Closing that, together with other
liabilities, is in excess of the Closing Cash-On-Hand and the Accounts Payable
Stated Amount, then Seller and/or Shareholder shall immediately pay to Buyer the
amounts so offset, with interest at a rate equal to eight percent (8%) per
annum. For all liabilities and contractual adjustments made against Buyer,
Buyer shall have the sole and absolute right of offset against any and all
amounts owed or owing to Shareholders, including, but not limited to the Note.
SECTION NINE: COMPLIANCE WITH ZONING AND LAND USE LAWS
None of the Real Estate is in violation of any zoning, public health, building
code or other similar laws applicable thereto or to the ownership, occupancy
and/or operation thereof, nor does there exist any waivers or exemptions
relating to the Real Estate with respect to any non- conforming use or other
zoning or building codes matters. Seller has all real property leases,
easements and rights necessary to continue operation of the business of the
Corporation, copies of which are set forth in Exhibit M attached hereto.
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SECTION TEN: LEASES AND CONTRACTS
EXHIBIT "L" attached hereto sets forth a complete and accurate list of all
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contracts, including the Program Contracts, agreements, purchase orders, leases,
subleases, options and commitments, oral or written, and all assignments,
amendments, schedules, exhibits and appendices thereof, affecting or relating to
the Business or any Asset or any interest therein, to which either Seller and/or
Shareholder is a party or by which Seller, the Assets or the Business is bound
or affected, including, without limitation, service contracts, management
agreements, equipment leases and building leases pertaining to any part of the
Real Estate (collectively, the "Leases and Contracts"). Attached to EXHIBIT "L"
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are accurate and complete copies of all written Leases and Contracts and written
summaries of key terms of all oral Leases and Contracts. Except for the Assumed
Leases, Contracts and Liabilities, all Leases and Contracts and all other
obligations and liabilities relating to the business of the Corporation shall be
retained by Sellers. None of the Leases and Contracts have been modified,
amended, assigned or transferred and each is in full force and effect and is
valid, binding and enforceable in accordance with its respective terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and by general principles of
equity.
No event or condition has happened or presently exists which constitutes a
default or breach or, after notice or lapse of time or both, would constitute a
default or breach by any party under any of the Leases and Contracts. There are
no counterclaims or offsets under any of the Leases and Contracts.
There does not exist any security interest, lien, encumbrance or claim of others
created or suffered to exist on any interest created under any of the Leases and
Contracts (except for those that result from or relate to leased Assets).
No purchase commitment by Seller is in excess of Seller's ordinary business
requirements. Assignment to Buyer of those Leases and Contracts constituting
part of the Assumed Leases and Contracts will not default, alter or terminate
any such Leases and Contracts, and such assignment will confer and convey all of
Seller's rights thereunder to Buyer.
SECTION ELEVEN: ENVIRONMENTAL MATTERS
Hazardous Substances. As used in this Section, the term "Hazardous Substances"
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means any hazardous or toxic substances, materials or wastes, including but not
limited to those substances, materials, and wastes defined in Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") listed in the United States Department of Transportation
Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous
substances pursuant to 40 CFR Part 302, or which are regulated under any other
Environmental Law (as such term is defined below), or any of the following:
hydrocarbons, petroleum and petroleum products, asbestos, polychlorinated
biphenyl, formaldehyde, radioactive substances (other than naturally occurring
materials in place), flammables and explosives.
Compliance with Laws and Regulations. All operations or activities upon, or any
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use of occupancy of the Real Estate, or any portion thereof, by the Corporation,
any Affiliates of Corporation (wherein the term "Affiliates" shall mean any
person or entity controlling, controlled by or under common control at any time
with Corporation, and the term "control" shall mean the power, directly or
indirectly to direct the management or policies of such person or entity), and
any agent, contractor or employee of any agent or contractor of the Corporation
or its Affiliates ("Agents"), or any tenant or subtenant of Corporation of any
part of the Real Estate is and has been in compliance with any and all laws,
regulations, orders, codes, judicial decisions, decrees, licenses, permits and
other applicable requirements of governmental authorities with respect to
Hazardous Substances, pollution or protection of human health and safety
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(collectively, "Environmental Law"), including but not limited to the release,
emission, discharge, storage and removal of Hazardous Substances. Sellers,
Affiliates and Agents have kept the Real Estate free of any lien imposed
pursuant to Environmental Law. To the "best knowledge" of Sellers, all prior
owners, operators and occupants of the Real Estate complied with Environmental
Law; provided, however, the term "best knowledge" as used in this Agreement
shall not mean that the Sellers has undertaken, or is obligated to undertake,
any independent investigation, survey or inquiry to determine the existence or
non-existence of any fact or, in particular, compliance with Environmental Law.
Except for uses and storage or presence of Hazardous Substances reasonably
necessary or incidental to the customary operation of a business similar to the
Business, as appropriate, which if required, was duly licensed or authorized by
appropriate governmental authorities or otherwise permitted by and complies with
Environmental Law:
Neither Corporation nor Affiliates or, to the "best knowledge" of Sellers, the
Agents have allowed the use, generation, treatment, handling, manufacture,
voluntary transmission or storage of any Hazardous Substances over, in or upon
the Real Estate, nor, to the best knowledge of Seller and Shareholder, has the
Real Estate ever been used for any of the foregoing.
Neither Corporation, Affiliates nor, to the "best knowledge" of Sellers, the
Agents have installed or permitted to be installed, in or on the Real Estate
friable asbestos or any substance containing asbestos in condition or amount
deemed hazardous by Environmental Law respecting such material.
Corporation have not at any time engaged in or permitted, nor, to the "best
knowledge" of Sellers, has any tenant of Corporation, Agent, Affiliate or any
other occupant of the Real Estate, or any portion thereof, engaged in or
permitted any dumping, discharge, disposal, spillage, or leakage (whether legal
or illegal, accidental or intentional) of such Hazardous Substances, at, on, in
or about the Real Estate, or any portion thereof that would subject the Real
Estate or Buyer to clean-up obligations imposed by governmental authorities.
None of the Real Estate, nor any part thereof, nor Corporation nor any present
owner or operator of the Real Estate (i) has either received or been issued a
notice, demand, request for information, citation, summons or complaint
regarding an alleged failure to comply with Environmental Law, or (ii) is
subject to any existing, pending, or threatened investigation or inquiry by any
governmental authority for failure to comply with, or any remedial obligations
under, Environmental Law, and there are no circumstances known to Seller or
Shareholder which could serve as a basis therefor. The Corporation have not
assumed any liability of a third party for clean up under, or noncompliance
with, Environmental Law.
Neither Corporation, its Affiliates nor, to the "best knowledge" of Sellers, its
Agents have transported or arranged for the transportation of any Hazardous
Substances to any location which is listed or, to the "best knowledge" of
Sellers, proposed for listing under Environmental Law, or is the subject of any
enforcement action, investigation or other inquiry under Environmental Law.
Sellers shall promptly notify Buyer in writing of any order of which either is
aware, receipt of any notice of violation or noncompliance with any
Environmental Law, any threatened or pending action of which either is aware by
any regulatory agency or governmental authority, or any claims made by any third
party of which it is aware relating to Hazardous Substances on, emanations on or
from, releases on or from, any of the Real Estate which relate to the period
prior to Closing; and shall promptly furnish Buyer with copies of any written
correspondence, notices or legal pleadings and written summaries of any oral
communications or notices in connection therewith. If, and only if, required by
law or the failure to do so would impose liabilities on Buyer or the Assets,
Buyer shall have the right, but shall not be obligated, to notify any
governmental authority of any state of facts which may come to its attention
with respect to Hazardous Substances on, released from or emanating from any
part of the Real Estate. Buyer shall give Sellers prior or simultaneous notice
of such notification.
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There are no underground storage tanks on any portion of the Real Estate, and
the Real Estate is free of dangerous levels of naturally emitted radon. To the
"best knowledge" of Sellers, no portion of the Real Estate has ever been used as
a landfill. Seller has furnished to Buyer a copy of any environmental audit,
study, report or other analysis on the Real Estate, which Seller or its
Affiliates obtained or were furnished.
SECTION TWELVE: MISCELLANEOUS REPRESENTATIONS CONCERNING THE REAL ESTATE
No part of the Real Estate is currently subject to condemnation proceedings,
and, to the best knowledge of Seller and Shareholder, no condemnation or taking
is threatened or contemplated. There are no public improvements that may result
in special assessments against or otherwise affect the Real Estate. There are
no facts known to either Seller or Shareholder that would adversely affect the
possession, use or occupancy of the Real Estate.
Complete copies of all appraisals, mechanical and structural studies or reports
or assessments, engineering plans, architectural drawings, soil studies, surveys
and other documents which have been prepared by or at the direction of Seller or
Shareholder within the last five years relating to any of the assets of the
Corporation will be provided at Closing.
All utilities serving the Real Estate are adequate to operate the Real Estate in
the manner it is currently operated and all utility lines, pipes, hook-ups and
wires serving the Real Estate are located within recorded easements for the
benefit of the Real Estate. There are no encroachments upon the Real Estate and
no encroachment of any improvements to the Real Estate onto adjacent property.
None of the improvements to the Real Estate violate setback, building or
sidelines, nor do they encroach on any easements located on the Real Estate.
All potable and industrial water and all gas, electrical, steam, compressed air,
telecommunication, sanitary and storm sewage lines and systems and other similar
systems serving the Real Estate and the facilities of the Business are installed
and operating and are sufficient to enable the Real Estate and the facilities of
the Business to continue to be used and operated in the manner currently being
used and operated, and any so-called hook-up fees or other associated charges
accrued to date have been fully paid. Seller has received no written
recommendation from any insurer to repair or replace any of the Assets with
which Seller has not complied.
Neither Seller nor Shareholder has received notice of any violation of any law,
rule, regulation, ordinance or order of any court or federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality (including, without limitation, legislation and regulations
applicable to the Medicare and Medicaid programs, Food and Drug Administration,
Drug Enforcement Administration, state controlled substance agencies and boards
of pharmacy, environmental protection, civil rights, public health and safety
and occupational health). There are no lawsuits, proceedings, actions,
arbitration, governmental investigations, claims, inquiries or proceedings
pending or, to the best knowledge of Sellers, threatened involving Sellers, the
Corporation or any assets of the Corporation.
SECTION THIRTEEN: EMPLOYEES OF CORPORATION
EXHIBIT "M" hereto sets forth: (a) a complete list of all of the Corporation'
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employees, and rates of pay, (b) true and correct copies of any and all fringe
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benefits and personnel policies, (c) the employment dates and job titles of each
such person, and (d) categorization of each such person as a full-time or
part-time employee of the Corporation. For purposes of this paragraph,
"part-time employee" means an employee who is employed for an average of fewer
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than twenty hours (20) per week or who has been employed for fewer than six of
the twelve (12) months preceding the date on which notice is required pursuant
to the "Worker Adjustment and Retraining Notification Act" ("WARN"), 29 U.S.C.
Sec.2102 et seq. Except as provided in Exhibit 4.11, Seller has no employment
-- --- ------------
agreements with its employees and all such employees are employed on an at "at
will" basis. Exhibit 4.15 also lists all ex-employees of Corporation utilizing
------------
or eligible to utilize COBRA (health insurance). The Sellers will terminate all
of its employees at Closing, and Sellers agree, jointly and severally, to
indemnify and hold Buyer harmless, from and against any and all claims of the
Corporation's employees relating to their employment through Closing and such
termination, whenever made. Other than Assumed Liabilities, the parties
expressly agree that Sellers shall retain responsibility for and fully and
timely pay all salaries and wages, related payroll taxes and all sick leave,
holiday, vacation benefits, retirement and other fringe benefits that have
accrued to its employees through the date of Closing, including related payroll
taxes. Sellers shall use its best efforts to retain its employees in their
current positions up to Closing.
The Corporation are not a party to any labor contract, collective bargaining
agreement, contract, letter of understanding, or any other arrangement, formal
or informal, with any labor union or organization which obligates the
Corporation to compensate their employees at prevailing rates or union scale,
nor are any of its employees represented by any labor union or organization.
There is no pending or, to the best knowledge of Sellers, threatened labor
dispute, work stoppage, unfair labor practice complaint, strike, administrative
or court proceeding or order between Sellers and any present or former
employee(s) of the Corporation There is no pending or, to the best knowledge of
Sellers, threatened suit, action, investigation or claim between Sellers and any
present or former employee(s) of the Corporation. There has not been any labor
union organizing activity at any location of the Corporation, or elsewhere, with
respect to the Corporation' employees within the last three years.
SECTION FOURTEEN: COMPLIANCE WITH HEALTHCARE LAWS
Compliance with Healthcare Laws and Other Laws. The Corporation have not made
------------------------------------------------
any kickback, bribe or payment to any person or entity, directly or indirectly,
for referring, recommending or arranging business or patients with, to or for
Corporation which action could have a material adverse effect on the business or
the Corporation. No bulk sales or similar statute will adversely affect the
transactions contemplated under this Agreement. The transactions contemplated
under this Agreement comply with any applicable state antitrust or similar laws.
None of the Leases and Contracts and no activity of the Corporation violate
Section 1877 of the Social Security Act or any similar provision of applicable
state law in any material respect. None of the Leases and Contracts and no
activity of the Corporation violate provisions of applicable state law relating
to the corporate practice of medicine in any material respect. The Corporation
are in compliance (without obtaining waivers, variances or extensions) with, all
federal, state and local laws, rules and regulations which relate to the
operations of the business of the Corporation, except where the failure to be in
compliance could not have a material adverse effect on such business. All
healthcare, tax and other returns, reports, plans and filings of any nature
required to be filed by Corporation with any federal, state or local
governmental authorities and any third party payors have been properly
completed, except where the failure to be so completed or filed could not have a
material adverse effect on the business of the Corporation, and timely filed in
compliance with all applicable requirements. Each return, report, plan and
filling contains no materially untrue or misleading statements and does not omit
anything which would cause it to be misleading or inaccurate in any material
respect. Sellers shall retain and be responsible, for any liability incurred,
and Sellers shall be entitled to receive any refund or other benefit which may
result from the same in connection with any such return, report, plan and
filing.
10
SECTION FIFTEEN: TAXES
The Corporation have filed all federal, state and local tax returns and tax
reports required by such authorities to be filed at or prior to Closing. The
Corporation have paid all taxes, assessments, governmental charges, penalties,
interest and fines due or claimed to be due at or prior to Closing (including,
without limitation, taxes on properties, income, franchises, licenses, sales and
payrolls) by any federal, state or local authority. Additionally, the reserves
for taxes reflected in the Financial Statements are adequate to cover all tax
liabilities accrued, whenever payable. There has never been and is not now
pending a tax examination or audit of, nor any action, suit, investigation or
claim asserted or, to the best knowledge of Sellers, threatened against the
Corporation by any federal, state or local authority; and Corporation have not
been granted any extension of the limitation period applicable to any tax
claims.
Tax Returns; Taxes. Seller has filed all federal, state and local tax returns
--------------------
and tax reports required by such authorities to be filed at or prior to Closing.
Seller has paid all taxes, assessments, governmental charges, penalties,
interest and fines due or claimed to be due at or prior to Closing (including,
without limitation, taxes on properties, income, franchises, licenses, sales and
payrolls) by any federal, state or local authority. Additionally, the reserves
for taxes reflected in the Financial Statements are adequate to cover all tax
liabilities accrued, whenever payable. There has never been and is not now
pending a tax examination or audit of, nor any action, suit, investigation or
claim asserted or, to the best knowledge of Seller and Shareholder, threatened
against Seller by any federal, state or local authority; and Seller has not been
granted any extension of the limitation period applicable to any tax claims.
SECTION SIXTEEN: REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Sellers to enter into this Agreement and to consummate the
transactions contemplated herein, Buyer hereby represents and warrants to Seller
and Shareholder, which representations and warranties shall be true and correct
on the date hereof and on the date of Closing, as follows:
Organization, Qualification and Authority. Buyer is a corporation duly
--------------------------------------------
organized, validly existing and in good standing under the laws of the State of
Utah. Buyer has the full corporate power and corporate authority to own, lease
and operate its properties and assets as presently owned, leased and operated
and to carry on its business as it is now being conducted. Buyer 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 and to consummate the transactions contemplated on
the part of Buyer hereby. The execution, delivery and consummation of this
Agreement and all other agreements and documents executed in connection herewith
by Buyer has been duly authorized by all necessary corporate action on the part
of Buyer. No other action on the part of Buyer or any other person or entity is
necessary to authorize the execution, delivery and consummation of this
Agreement and all other agreements and documents executed in connection
herewith. This Agreement, and all other agreements and documents executed in
connection herewith by Buyer, upon due execution and delivery thereof, shall
constitute the valid binding obligations of Buyer, enforceable in accordance
with their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and by general principles of equity.
Agreement and all other agreements and documents executed in connection herewith
by Buyer will not constitute a violation of, be in conflict with, or, with or
without the giving of notice or the passage of time, or both, result in a breach
of, constitute a default under, or create (or cause the acceleration of the
maturity of) any debt, indenture, obligation or liability or result in the
creation or imposition of any security interest, lien, charge or other
encumbrance upon any of the Assets (except in the ordinary course pursuant to
Buyer's existing credit agreement) under: (a) any term or provision of the
11
Certificate of Incorporation or Bylaws of Buyer; (b) any contract, lease,
agreement, indenture, mortgage, pledge, assignment, permit, license, approval or
other commitment to which Buyer is a party or by which Buyer is bound; (c) any
judgment, decree, order, regulation or rule of any court or regulatory
authority, or (d) any law, statute, rule, regulation, order, writ, injunction,
judgment or decree of any court or governmental authority or arbitration
tribunal to which Buyer is subject.
SECTION SEVENTEEN: SELLERS' CONDITIONS TO CLOSE
The obligations of Sellers under this Agreement are subject to the satisfaction
on or prior to Closing, of the following conditions (which may be waived in
writing by Seller or Shareholder in whole or in part):
Representations and Warranties True at Closing; Compliance with Agreement. The
--------------------------------------------------------------------------
representations and warranties of Buyer contained in this Agreement (including
the Exhibits and attachments hereto) or in any certificate or document delivered
to Seller pursuant hereto, shall be deemed to have been made again at the
Closing and shall then be true in all respects; and Buyer shall have performed
and complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at Closing.
No Action/Proceeding. No action or proceeding before a court or any other
---------------------
governmental agency or body shall have been instituted or threatened to restrain
-----
or prohibit the transactions hereunder contemplated, and no governmental agency
or body or other entity shall have taken any other action or made any request of
Seller or Buyer as a result of which Seller reasonably and in good xxxxx xxxxx
that to proceed with the transactions hereunder may constitute a violation of
law. If applicable, the waiting periods specified under the Antitrust
Improvements Act with respect to the transactions contemplated under this
Agreement will have lapsed or been terminated.
Order Prohibiting Transaction. No order shall have been entered in any action
-------------------------------
or proceeding before any court or governmental agency, and no preliminary or
permanent injunction by any court shall have been issued which would have the
effect of (a) making the transactions contemplated under this Agreement illegal,
or (b) otherwise preventing consummation of such transactions. There shall have
been no United States federal or state statute, rule or regulations enacted or
promulgated after the date of this Agreement that would reasonably, directly or
indirectly, result in any of the consequences referred to in this paragraph.
SECTION EIGHTEEN: BUYER'S CONDITIONS TO CLOSE
The obligations of Buyer under this Agreement are subject to the satisfaction,
on or prior to Closing, of the following conditions (which may be waived in
writing by Buyer in whole or in part):
Representations and Warranties True at Closing; Compliance with Agreement. The
--------------------------------------------------------------------------
representations and warranties of Seller and Shareholder contained in this
Agreement (including the Exhibits and attachments hereto) or in any certificate
or document delivered to Buyer in connection herewith, shall be deemed to have
been made again at the Closing and shall then be true in all respects; and
Seller and Shareholder shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be performed or complied
with by them prior to or at Closing.
Regulatory Approvals. Buyer shall have obtained (a) certification for
---------------------
participation in the Medicaid Programs of the states where the Business is
conducted, (b) certification from the appropriate agency of the federal
government for participation in the federal Medicare Program, and (c) all other
consents, licenses, registrations, permits, approvals, provider contracts,
necessary in the judgment of Buyer to acquire and operate the Assets and
Business as contemplated hereunder. Buyer has the sole an absolute right to
waive this condition prior to the Closing.
12
No Action/Proceeding. No action or proceeding before a court or any other
---------------------
governmental agency or body shall have been instituted or threatened to restrain
or prohibit the transaction hereunder contemplated, and no governmental agency
or body or other entity shall have taken any other action or made any request of
Seller or Buyer as a result of which Buyer reasonably and in good xxxxx xxxxx
that to proceed with the transactions hereunder may constitute a violation of
law. If applicable, the waiting periods specified under the Antitrust
Improvements Act with respect to the transactions contemplated under this
Agreement shall have lapsed or been terminated.
Inspection of assets; UCC Searches, etc. Buyer and its representatives shall
-------------------------------------------
have had and continue to have reasonable rights of inspection of the Assets in
connection with Buyer's due diligence review, and the results of Buyer's
inspection and due diligence review shall be acceptable to it. Seller shall have
delivered to Buyer, at Seller's expense, all UCC financing statements and title
searches, local and central, including fixtures, and federal and state pending
litigation, tax lien and judgment searches, with respect to Seller, the Assets
and the Business, including all "DBA's," tradenames and fictitious names of
Seller, dated no more than ten (10) days prior to Closing, with results
satisfactory to Buyer.
Order Prohibiting Transaction. No order shall have been entered in any action
-------------------------------
or proceeding before any court or governmental agency, and no preliminary or
permanent injunction by any court shall have been issued which would have the
effect of (a) making the transactions contemplated under this Agreement illegal,
(b) otherwise preventing consummation of such transactions, or (c) imposing
material limitations on the ability of Buyer effectively to acquire and hold
Assets, to operate the Business, or, in any case, to exercise rights of
ownership pursuant thereto. There shall have been no federal or state statute,
rule or regulations enacted or promulgated after the date of this Agreement that
would reasonably result, directly or indirectly, in any of the consequences
referred to in this paragraph.
Consulting Agreement. Xxxxxxx X. XxXxxxxxx has agreed to act as a consultant to
--------------------
Buyer after the Closing pursuant to the terms and conditions acceptable to
Buyer.
Third Party Consents. Seller shall provide to Buyer all consents and
----------------------
authorizations of governmental agencies and other third parties believed by
Buyer to be necessary or advisable for the legal and proper consummation of all
agreements and transactions contemplated within this Agreement, each in form and
substance acceptable to Buyer.
Approval of Board of Directors. This Agreement and consummation of the
----------------------------------
transactions contemplated hereunder shall have been approved by the Board of
Directors of Buyer.
SECTION NINETEEN: OBLIGATIONS OF SELLER AND SHAREHOLDER AT CLOSING
At Closing, Sellers shall deliver or cause to be delivered to Buyer the
following in form and substance reasonably satisfactory to Buyer:
Documents Relating to Title. Seller shall execute, acknowledge, deliver and
------------------------------
cause to be executed, acknowledged and delivered to Buyer: (i) A Xxxx of Sale,
in form and substance satisfactory to Buyer, warranting and conveying to Buyer
good, valid and marketable title to all Assets, free and clear of all liens,
mortgages, pledges, encumbrances, security interests, covenants, easements,
rights of way, equities, options, rights of first refusal restrictions, special
tax or governmental assessments, defects in title, encroachments and other
burdens, except for the Assumed Leases, Contracts and Liabilities; (ii)
Certificates of title to all vehicles that constitute Assets endorsed by Seller
together with completed originals of any forms required by all applicable states
to transfer the same, free and clear of all liens, except for the Assumed
Leases, Contracts and Liabilities; and (iii) an effective and enforceable
assignment to Buyer of each Lease and Contract which Buyer has agreed to assume.
13
Possession. Seller shall deliver to Buyer full possession and control of the
----------
Business and Assets.
Opinion of Counsel. Seller and Shareholder shall deliver to Buyer the favorable
------------------
opinion of counsel for Seller and Shareholder, dated as of Closing, in the form
acceptable to Buyer.
Corporate Good Standing and Corporate Resolutions. Seller and Shareholder shall
-------------------------------------------------
deliver to Buyer certificates of good standing from the Secretary of State of
Mississippi, certified copies of the Bylaws and Charter of Seller (all dated the
most recent practical date prior to Closing), certified copies of the
resolutions of the Board of Directors and Shareholder of Seller authorizing the
execution, delivery and consummation of this Agreement and the execution,
delivery and consummation of all other agreements and documents executed in
connection herewith by them, including all deeds, bills of sale and other
instruments required hereunder, sufficient in form and content to meet the
requirements of the law of the state of Seller's incorporation relevant to such
transactions and certified by officers of Seller to be validly adopted and in
full force and effect and unamended as of Closing.
Third Party Consents. Seller shall deliver to Buyer, all consents, estoppels,
----------------------
approvals and authorizations of governmental agencies and other third parties
that Buyer believes are necessary or advisable for the legal and proper
execution, delivery and consummation of this Agreement, and the transactions
contemplated hereby, including, without limitation, those consents necessary for
the assignment of Leases and Contracts pursuant to this Agreement.
Taxes and Other Payments. Seller shall deliver to Buyer: (i) a certificate of
--------------------------
non-foreign status signed by the appropriate party and sufficient in form and
substance to relieve Buyer of all withholding obligations under Section 1445 of
the Code, and (ii) executed releases of all mortgages, security interests,
liens, pledges, restrictions or other encumbrances on or applicable to the
Assets, except those encumbrances permitted under paragraph 9.10.
Insurance. Seller shall deliver evidence of its current insurance coverage, as
---------
described in Section 4.17.
Additionally Requested Documents; Post Closing Assistance. At the reasonable
------------------------------------------------------------
request of Buyer at Closing and at any time or from time to time thereafter,
Seller and Shareholder shall cooperate with Buyer to put Buyer in actual
possession and operating control of the Assets and Business, execute and deliver
such further instruments of sale, conveyance, transfer and assignment, as Buyer
may reasonably request in order to effectively sell, convey, transfer and assign
the Assets and Business to Buyer, to execute and deliver such further
instruments and to take such other actions as Buyer may reasonably request to
release Buyer from all obligation and liability with regard to any obligation or
liability retained by Seller and/or Shareholder and to execute and deliver such
further instruments and to cooperate with Buyer as Buyer may reasonably request
or to enable Buyer to obtain all necessary health care or regulatory
certifications, approvals, registrations, consents and licenses, accreditation
or permits.
SECTION TWENTY: OBLIGATIONS OF BUYER AT CLOSING
At Closing, Buyer shall deliver or cause to be delivered to Seller the following
in a form and substance reasonably satisfactory to Seller:
Purchase Price. Buyer shall make available to Seller the Purchase Price upon
---------------
the terms specified in this Agreement.
14
Assumption of Liabilities. Buyer shall covenant to fully perform and comply
---------------------------
with all of the Assumed Leases, Contracts and Liabilities, subject to the
provisions of this Agreement, after Closing.
Corporate Good Standing and Board Resolutions. Buyer shall deliver to Seller a
----------------------------------------------
certificate of good standing from the Secretary of State of Utah, dated the most
recent practical date prior to Closing, together with a certified copy of the
resolutions of the Board of Directors of Buyer approving this Agreement and the
consummation of the transactions hereunder contemplated.
SECTION TWENTY-ONE: CONTINUING WARRANTIES
The warranties and representations in this Agreement shall be continuous and
shall survive the delivery by Sellers and the receipt by Buyer of the common
stock to be sold for a period of two years after the Closing.
SECTION TWENTY-TWO: INDEMNITY
Without in any way limiting or diminishing the warranties, representations, or
covenants contained in this agreement, or the rights or remedies available to
Buyer for the breach of this agreement, except for Assumed Leases, Contracts and
Liabilities, the Sellers agree to hold Buyer harmless from and against all loss,
liability, damages, or expenses, in excess of the Accounts Payable Stated Amount
and the Closing Cash-On-Hand, arising out of any claims, demands, penalties,
fines, taxes, or other loss resulting directly or indirectly from the assertion
against the corporation of claims by any government, corporation, partnership,
entity, or person arising before the Closing Date and not fully disclosed in or
not specifically excepted by the provisions of this Agreement, and such
indemnification to include:
A. The payment in full of any and all federal, state, county, or local
municipal taxes or assessments owed and due and payable at the Closing by the
Corporation that arise and were due prior to the Closing. Such tax obligations
-----
payable shall include, but not limited to, employee withholding tax obligations
(including both employee and employer obligations), sales taxes, property taxes,
personal property taxes, or personal property assessments.
B. Except as provided in Section 6(B) herein and the Assumed Leases,
Contracts and Leases, the Sellers shall be liable to the Buyers for any and all
liabilities incurred by the Corporation prior to Closing or that become
obligations of the Corporation as a result of any pending or actual litigation,
lawsuits, claims or disputes, judgments, or settlements of claims pending
against the Corporation prior to Closing to the extent such action(s) raise a
claim or claims against or create a financial obligation upon either Stock or
the assets of Corporation. Such claims shall include but not be limited to any
and all claims made upon the Corporation as a result of the failure of the
Corporation to have timely paid wages, salaries and benefits including, without
limitation, COBRA and WARN obligations, sick pay and accrued vacation not
expressly assumed by Buyer pursuant to Exhibit I attached hereto ("Assumed
Employee Obligations"), and other accrued employee benefits including rights of
Sellers' retirees to participate in Sellers' medical plans; all impositions of
income tax and other taxes, including, without limitation, payroll related
taxes; contract obligations, vendor contracts, Medicare and/or Medicaid offsets
or claims, and/or any other obligations (including penalties) prior to the
Closing.
C. The Buyers shall provide reasonable notice to the Sellers of any such
claims, litigation, lawsuits or disputes (the "Claims") and the Sellers shall
have the right to be represented by counsel and to defend against such Claims.
The Buyers shall not settle any Claims without first obtaining the consent of
the Sellers to such settlement, with such consent shall not be unreasonable
withheld.
15
SECTION TWENTY-THREE: WAIVER OF STOCK TRANSFER RESTRICTIONS
Sellers waive all preemptive rights and restrictions on the sale and transfer of
the common stock sold under this Agreement and agree to hold Buyer harmless from
and against all liabilities, loss, damages, or claims arising directly or
indirectly from Buyer's failure to obtain absolute, entire, and unconditional
ownership of the common stock of the Corporation, free and clear of all
restrictions, liens, charges, and encumbrances.
SECTION TWENTY-FOUR: DISSOLUTION OF CORPORATION
If it is determined by Buyer that it is to its advantage to liquidate and
dissolve Rx Solutions, Inc., Sellers specifically consent in advance to the
dissolution of the Corporation by Buyer. It is agreed by the parties that tax
considerations and their consequences materially affect Buyer, Sellers, and
Corporation. It is further agreed that in the even Buyer liquidates and
dissolves the Corporation, any income tax or State corporate tax incurred by the
Corporation caused by the dissolution shall be the obligation of Buyer.
SECTION TWENTY-FIVE: PERSONAL PROPERTY
Except for the personal property described on EXHIBIT "D" and the liens thereon,
----------
all personal property of the corporation, including inventory, shall be free
from any claim, lien, or demand.
SECTION TWENTY-SIX: NOTICES
Any notices to be given under this Agreement may be served on the parties
personally or served by registered or certified mail, addressed to the parties
and delivered to the escrow agent, if applicable. It shall be the responsibility
of the individual parties to this agreement to furnish the escrow agent with
their addresses and any change in the addresses. In the event of the failure of
any party to do so, the escrow agent shall be entitled to rely on the following
addresses as the addresses for forwarding any notice:
To Buyer: American Hospital Resources, Inc.
0000 Xxxx Xxx Xxxxx
Xxxxx Xxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
To Seller: Xxxxx Xxxxx
0000 Xxx Xxxxxxx 00, Xxxxx #0
Xxxxxxxxxxx, XX 00000
Copies to: Xxxxxx Xxxx
0000 Xxx Xxxxxxx 00, Xxxxx #0
Xxxxxxxxxxx, XX 00000
SECTION TWENTY-SEVEN: BROKER'S FEE
It is understood by the parties that neither Buyer nor Sellers shall not be
liable for any broker's fees for any person who has contacted and worked with
the other but instead any such fee for any such person shall be the obligation
of the applicable party.
16
SECTION TWENTY-EIGHT: CONTROLLING LAW AND ATTORNEY FEES
The laws of the State of Utah shall govern this Agreement. Any dispute that may
arise between the parties as a result of this Agreement shall be submitted to
binding arbitration in Salt Lake City, Utah with the full right of discovery.
All costs of such arbitration, including attorneys' fees, shall be awarded to
and recoverable by the prevailing party.
SECTION TWENTY-NINE: BINDING EFFECT AND COUNTERPARTS
Except as otherwise provided, this Agreement shall be binding on and inure to
the benefit of, and be enforceable by, the heirs, assigns, and legal
representatives of the parties, provided that no assignment of this Agreement or
any interest in it shall be valid without the prior written consent of Sellers.
The parties agree herein that this Agreement or any documents required for the
Closing can be executed in counterparts and that facsimile signatures will be
acceptable for Closing until such original documents can be circulated and all
signatures can be obtained. Buyer and Shareholders have executed this agreement
as indicated herein below.
Agreed and accepted this 8th day of May 2003.
"Buyer"
American Hospital Resources, Inc.
/s/Xxxxxxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxxxxxx X. Xxxxxxx
Chief Executive Officer
"Shareholders"
/s/Xxxxx Xxxxx
----------------
Xxxxx Xxxxx
/s/Xxxxxx Xxxx
---------------
Xxxxxx Xxxx
17
SCHEDULE OF EXHIBITS
----------------------
Exhibit "A": Description of Business of Corporation
Exhibit "B": Form of Buyer's Purchase Note
Exhibit "C": List and Description of Insurance Policies
Exhibit "D": List of Equipment and Furniture
Exhibit "E": Schedule of Inventory
Exhibit "F": Schedule of Accounts and Notes Receivable
Exhibit "G": Excluded Assets:
Exhibit "H": Listing and Copies of Stock Certificates of Shareholders
Exhibit "I": Financial Statements of the Corporation
Exhibit "J": Medicaid and Medicare Provider Agreements
Exhibit "K": Third Party Insurance Contracts
Exhibit "L": Copies of Contracts and Leases to be Assumed by Buyer at
Closing
Exhibit "M": Employee Lists
Exhibit "N": Deleted
Exhibit "O": Short-term Note
18
