Exhibit 10.10
PACER HEALTH CORPORATION
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
December 9, 2003
Xx. Xxxxxx X. Xxxx Revival Healthcare, Inc. 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxx 00000
RE: LETTER OF INTENT
Dear Xxxxxx:
This letter confirms the intent Pacer Health Corporation, a Florida
corporation ("Pacer"), or its assigns, to acquire all of the outstanding capital
stock ("Revival Shares") of Revival Healthcare, Inc. ("Revival"), a Louisiana
corporation, from the current shareholders of Revival (the "Revival
Shareholders"). (The transaction shall be referred to as the "Business
Combination"). The parties hereto agree to negotiate and enter into a formal and
binding agreement (the "Agreement") by December 31, 2003, which sets forth such
representations, warranties, covenants, indemnifications and other provisions as
are typical for a transaction of this nature and as are acceptable to the
parties in their sole discretion.
1. General Information. Revival is private company that owns the
Camelot Specialty Hospital of Cameron LLC , with assets including a 25 bed acute
care unit in Creole, Louisiana ("Cameron Memorial Hospital") and a 24 bed
geriatric behavior health unite in Lake Xxxxxxx ("Xxx Xxxx Hospital")
(collectively, the "Facilities"). The Facilities have all licenses,
certifications and regulatory approvals to operate their business in accordance
with state and federal laws including those laws applicable to health care
facilities. Revival is a formed Louisiana corporation in good standing which has
the authority to agree to the terms of this letter. Pacer is a fully reporting
and trading public company listed on the OTCBB, which has the authority to agree
to the terms of this letter.
2. Purchase Price. Pacer will acquire all of the Revival Shares free
and clear of all liens, encumbrances, etc. from the Revival Shareholders in
exchange for the delivery at the Closing (as defined herein below) of (i)
100,000,000 newly-issued shares of common stock of Pacer and (ii) the payment of
$100,000.00 to Revival for use to pay payroll taxes. The exact number of shares
to be issued to the Revival Shareholders and corporate structure of the Business
Combination will be determined and may change as a result of the Agreement.
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3. Closing. The Business Combination will be consummated at a closing
(the "Closing") to be held at the offices of Pacer's attorneys, on a date that
shall be on or before December 31, 2003.
4. Due Diligence Inspection. After the parties execute and agree to
the terms of this letter, each party may make examinations and inspections of
each other's financial condition, properties, legal matters, business and
affairs. Each party will cause their attorneys, accountants, including
accountants specialized in cost reports for medical facilities, and other
advisors and agents to cooperate with the other in its investigation and to make
their files and work papers available. Consummation of the Business Combination
will be subject to each party obtaining satisfactory results in its due
diligence investigation in their respective sole discretion. All inspections
will comply with HIPAA, and applicable SUPER confidentiality requirements.
5. No-Shop. From the date of this letter until January 31, 2004, the
Revival Shareholders, Revival, Revival's officers, directors, employees or other
agents of the foregoing shall not, directly or indirectly, take any action to
solicit, initiate or encourage any acquisition of substantially all of the
assets or any of the stock of Revival or any transaction similar to the
transaction outlined herein, nor will they entertain any unsolicited proposals
or approaches in this regard.
6. Costs. Each party agrees to pay, without right of reimbursement
from the other party and regardless of whether or not the Business Combination
is consummated, the costs incurred by it in connection with Business
Combination, including legal fees and other costs incidental to the negotiation
of the terms of the Agreement, the preparation of related documentation or due
diligence. Each party represents to the others that it has not dealt with any
finder or broker in connection with the Business Combination except Xxxx Xxxxxx.
Each party will indemnify and hold the others harmless from any loss, liability
or expense (including, without limitation, legal fees) resulting from the
indemnifying party's breach of the representations and agreements contained in
this Section 6. In addition, Revival and the Revival Shareholders shall pay
Pacer all of Pacer's costs and expenses associated with this letter, due
diligence, preparation and negotiation of the Agreement and the Business
Combination if Revival or the Revival Shareholders breach Section 5.
7. Governmental Consents and Authority. Each of the parties and their
affiliates will cooperate in the preparation of, and expeditiously file or
provide, information to governmental authorities, required or helpful, to
consummate the Business Combination.
8. Indemnification. The Agreement will contain indemnifications as are
typical for a transaction of this nature, including, but not limited to,
indemnification provided by the Revival Shareholders for all liability
associated with the Facilities provider numbers for all events and/or actions
occurring prior to the Closing.
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9. Rescission Rights of the Revival Shareholders. The Agreement shall
provide that the Revival Shareholders have the option to rescind the Business
Combination in its entirety for a period of two (2) years after the Closing (the
"Rescission Period") if Pacer defaults in the Rescission Period in any material
obligation in the Agreement which default is not cured within the time period
set forth therein. The Revival Shareholders must exercise their option to
rescind the Business Combination through the delivery of written notice to Pacer
at least thirty (30) days prior to the expiration of the Rescission Period. Such
exercise notice must be signed and agreed to by all of the Revival Shareholders.
A condition precedent to the Revival Shareholders' exercise of their option to
rescind the Business Combination is the return to Pacer of the $100,000 paid to
Revival for payroll taxes. These funds must be delivered to Pacer simultaneously
with the delivery of the Revival Shares to the Revival Shareholders. Upon any
such rescission, the parties will execute such documentation as is reasonable
necessary to carry out the rescission.
10. Rescission Rights of Pacer. The Agreement shall provide that if
the Closing takes place prior to Pacer obtaining all necessary local, state and
federal approvals, including approvals required for Pacer to become the owner of
the Facilities (the "Required Approvals"), Pacer has the option to rescind the
Business Combination in its entirety if Pacer is unable to obtain the Required
Approvals. Pacer shall also have the option to rescind the Business Combination
if the Revival Shareholders fail to satisfy their indemnification obligations to
Pacer, if necessary. Pacer must exercise its option to rescind the Business
Combination through the delivery of written notice to Revival at least thirty
(30) days prior to the rescission date. Upon Pacer exercising its option to
rescind the Business Combination, Pacer shall receive the return of the $100,000
paid to Revival for payroll taxes. These funds must be delivered to Pacer
simultaneously with the delivery of the Revival Shares to the Revival
Shareholders. Upon any such rescission, the parties will execute such
documentation as is reasonable necessary to carry out the rescission
11. Revival Financial Statements. The approximate financial statements
of Revival are attached hereto as Exhibit A. Revival shall deliver audited
financial statements prepared in accordance with the requirements of Rule
3-05(b) of Regulation S-X and all other requirements of GAAP and the SEC at or
prior to Closing.
12. Continued Operations. Revival will conduct its business only in
accordance with applicable laws and in the normal and ordinary course and in a
manner consistent with good business practices. Without the prior written
consent of Pacer, Revival will not (a) engage in any transaction which would
have an adverse effect on the business, operations, assets, financial condition
or prospects of Revival, (b) amend its organizational documents or any material
contracts, (c) issue any equity securities of Revival or securities convertible,
exercisable or exchangeable into equity securities of Revival, (d) assume or
incur any liabilities outside of the normal and ordinary course of business or
assume or incur any debt, or (e) enter into any new contracts or agreements.
Revival will preserve its business organization intact and preserve its existing
business relationships. Revival will also advise Pacer promptly of any material
adverse change in the financial condition or business of Revival.
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13. Confidentiality. Each of the parties agrees to maintain the
confidentiality of all information furnished to it by any other party hereto
concerning the business, operations and financial condition of the party
furnishing such information, except to the extent required by applicable law.
14. Press Releases. Prior to signing of the Agreement, none of the
parties will make any press release, statement to employees or other disclosure
of this letter or the Business Combination contemplated herein without the prior
written consent of the other parties, except as required by law.
15. Deadlines and Dates. The parties acknowledge that time is of the
essence and that each party will use its best efforts to finalize the Agreement
and close the Business Combination on or before December 31, 2003. The Agreement
shall be entered into between the parties based on the following targeted
deadlines. These deadlines may be accelerated by the parties if agreed:
Complete Due Diligence December 29, 2003
Complete Agreement December 31, 2003
Closing Date December 31, 2003
If the parties agree to enter into the Agreement and consummate the Business
Combination prior to Pacer obtaining the Required Approvals, the parties may
enter into a management agreement containing mutually agreeable terms and
conditions, pursuant to which Pacer would manage the Facilities.
16. Expiration. This letter shall expire and terminate at 5:00 P.M.
EST, January 31, 2004, unless an extension is agreed to by all of the parties in
writing.
17. Approval. The Business Combination shall be subject to the approval
of the Board of Directors of Pacer and the Board of Directors of Revival.
18. Employment of Xxxxxx Xxxxx. As part of the Business Combination,
Pacer shall employ Xxxxxx Xxxxx as its Chief Operating Officer pursuant to a
written employment agreement containing mutually agreed upon terms.
19. Non-Binding Letter of Intent. Except for Sections 5, 6, 12, 13, 14,
16, 19, 20 and 21 hereof, this letter is an expression of interest only and is
not intended to be a binding letter of intent, and the general principles set
forth in this letter shall not constitute an agreement to consummate the
Business Combination described herein. The parties will proceed to use their
best efforts to negotiate the terms of and enter into the Agreement. This letter
of intent is not an agreement to enter into any definitive agreement.
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20. Counterparts; Effectiveness. This letter may be signed in
counterparts, each of which will be considered an original and all of which will
constitute the same document. This letter shall be accepted and effective, when
the all of the parties shall have signed and transmitted to each other, by
telecopier or otherwise, copies of the signature pages hereto.
21. Governing Law. This letter shall be interpreted in accordance with
the laws of the State of Florida without regard to its conflicts of law
principles.
If this letter accurately reflects your understanding, please indicate
your agreement by signing this letter and returning it to me by December 8,
2003.
Sincerely yours,
PACER HEALTH CORPORATION
By:_________________________________
Name: Rainier Xxxxxxxx
Title: Chief Executive Officer
ACCEPTED AND AGREED THIS _____ DAY
OF DECEMBER, 2003:
REVIVAL HEALTHCARE, INC. REVIVAL SHAREHOLDERS
By: _______________________________ ____________________________________
Name:
Title:
_____________________________________
_____________________________________
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EXHIBIT A
REVIVAL APPROXIMATE FINANCIAL STATEMENTS
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