ASSETS PURCHASE AGREEMENT
THIS ASSETS PURCHASE AGREEMENT (the "Agreement") is made and entered into this
25th day of September, 1996, by and among PHYSICIAN RESOURCES, INC. ("PRI"),
a Maine corporation (the "Seller") and XXXXXX X. XXXXXXX and XXXXXXXXX XXXXX
(hereinafter collectively, jointly and severally, referred to as the
"Stockholders and/or "Majority Stockholders"), and ACADIA NATIONAL HEALTH
SYSTEMS, INC. ("ACADIA"), a Colorado corporation (the "Purchaser").
Explanatory Statement
A. The Seller is a Maine corporation that engages in the business of
providing physician practice management services including billing, consulting,
software, business systems, related services and sometimes financing to
physicians and other health care providers.
B. The Stockholders own of record and beneficially a majority of the
outstanding shares of the capital stock of the Seller, and constitute all of the
directors and officers of the Seller.
C. The Seller desires to sell, assign, transfer and deliver to the
Purchaser, and the Purchaser desires to purchase from the Seller, certain of the
assets of the Seller described in Section 1 hereof on the terms and subject to
the conditions hereinafter contained.
D. The Purchaser and the Stockholders desire to enter into certain
agreements among them providing for, among other things, the provision of
certain services by A and B for the Purchaser, on the terms and subject to the
conditions hereinafter contained.
NOW THEREFORE, in consideration of the Explanatory Statement that shall be
deemed to be a substantive part of this Agreement and the mutual covenants,
promises, agreements, representations and warranties contained in this
Agreement, the parties hereto do hereby covenant, promise, agree, represent and
warrant as follows:
1. Purchase and Sale of Assets.
1.1. Purchase and Sale. On the terms and subject to the conditions set
forth in this Agreement, at the Closing on the Closing Date (as such terms are
defined in Section 13 hereof), the Seller shall sell, assign, transfer and
deliver to the Purchaser and the Purchaser shall purchase from the Seller all of
the right, title and interest of
Seller in and to the following assets of the Seller (all of which assets of the
Seller are hereinafter collectively referred to as the "Assets"):
1.1.1. All of the Seller's equipment, furniture, materials and
supplies, including, but not limited to, all of the equipment, furniture,
materials and supplies described in Exhibit 1A attached hereto and incorporated
by reference herein (the "Equipment").
1.1.2. All of the Seller's fixed assets, including, but not limited
to, all of the fixed assets described in Exhibit 1B attached hereto and
incorporated by reference herein (the "Fixed Assets").
1.1.3. All of the Seller's Accounts Receivable (as defined in
Section 1.3 hereof).
1.1.4. All of the Seller's Inventory (as defined in Section 1.3
hereof).
1.1.5. All of the Seller's Cash (as defined in Section 1.3
hereof).
1.1.6. All of the Seller's customer lists and customer sales files
("Customer Lists").
1.1.7. All of the Seller's goodwill and copies of all of Seller's
employment and personnel records, books and records relating or pertaining to
Seller's business of providing physician practice management services including
billing, consulting, software, business systems, related services and sometimes
financing to physicians and other health care providers, including all sales
records and similar data (hereinafter collectively referred to as the
"Records"); the Seller shall deliver to the Purchaser copies of the Records upon
the written request of the Purchaser.
1.2. Purchase Price for Assets; Allocations. The purchase price for the
Assets shall be 300,000 shares of Acadia National Health Systems, Inc. common
capital stock no par value at a stated value of $.50 per share (the "Purchase
Price"). The parties agree that the Purchase Price for the Assets shall be
allocated among the Assets as follows:
Equipment
Fixed Assets
Goodwill
1.3. Closing Account Statement; Value of Certain Assets. At the
Closing, the Seller and the Stockholders shall deliver to the Purchaser a
closing account statement (the "Closing Account Statement") on which shall be
set forth the Value (as
hereinafter defined) of all of the Seller's (i) Accounts Receivable, billed
and unbilled ("Total Receivables"), (ii) inventory, including, but not limited
to, all of the inventory described in an inventory list (the "Inventory List")
prepared as hereinafter set forth in this Section 1.3 (the "Total Inventory"),
and (iii) cash, cash equivalents, including, but not limited to, all
certificates of deposit and money market accounts, and similar current assets
("Total Cash"), all as of the close of business on the day immediately
preceding the Closing Date. The Closing Account Statement shall be in accordance
with the true, complete and correct books and records of the Seller and shall
be true, complete and correct and accurately present the financial information
in respect of the Seller set forth therein as of the close of business on the
date thereof, and in accordance with the covenants, promises, agreements,
representations and warranties of the Seller set forth in this Agreement.
The Inventory List shall be prepared by representatives of the Seller and the
Purchaser (the "Closing Account Statement Representatives") jointly by the
taking of a physical inventory of the Seller's inventory beginning immediately
after the close of business on the day immediately preceding the Closing Date.
The Total Cash shall be verified by the Closing Account Statement
Representatives through examination of the books and records of the Seller,
including, but not limited to, the Seller's bank books, checking account
statements and cheek books, certificates of deposits, and money market account
statements, after the close of business on the day immediately preceding the
Closing Date.
1.3.1. For purposes of this Section 1.3, "Value" shall mean with
respect to:
1.3.1.1. Total Receivables or Accounts Receivable, the full,
aggregate, face value of the Total Receivables or Accounts Receivable.
1.3.1.2. Total Inventory or Inventory, the direct cost to the
Seller of the Total Inventory or Inventory.
1.3.1.3. Total Cash or Cash, the full, aggregate face value
thereof.
1.3.2. At the Closing on the Closing Date, the Seller shall sell,
assign, transfer and deliver to the Purchaser such of the Seller's Total
Receivables, Total Inventory and Total Cash in exchange for 300,000 shares of
Acadia National Health Systems, Inc., no par value common stock at a stated
value of $.50 per share.
1.3.3. In the event that the Value of the Inventory and Accounts
Receivable to be sold, assigned, transferred and delivered to the Purchaser at
the Closing shall be less than the Value of the Total Inventory and Total
Receivables, respectively, the Seller shall designate at the Closing those items
of Total Inventory and those of the Total Receivables that shall be sold,
assigned, transferred and delivered to the Purchaser at the Closing as the
Inventory and Accounts Receivable.
1.4. Consulting and Noncompetition Agreements. At the Closing, the
Purchaser and each officer shall enter into Consulting and Noncompetition
Agreements in the form attached hereto as Exhibit 2A (hereinafter referred to as
the "Consulting and Noncompetition Agreements") pursuant to which such
Stockholders shall agree to render consulting services to the Purchaser for a
period of 5 years from and after the Closing Date and shall agree not to compete
with the business of the Purchaser for a like period.
2. Liabilities of Seller. Anything contained in this Agreement to the
contrary notwithstanding, the Seller shall assign to Purchaser all debts,
obligations, duties and liabilities of the Seller including any debts and leases
not disclosed within this agreement that were the sole responsibility of the
Seller and its stockholders. The Purchaser shall assume, agree to pay or pay
any debts, obligations, duties or liabilities of any nature of the Seller or its
business, including, but not limited, to any debts, obligations, duties or
liabilities relating to the Seller's employees or employee benefit plans,
regardless of whether any such debt, obligation, duties or liability arises
under any contract, agreement, practice, arrangement, statute, law,
ordinance, rule, regulation or otherwise, and nothing in this Agreement or
otherwise is intended or shall be construed to the contrary. The parties further
covenant, promise and agree that the Purchaser is not and shall not be obligated
to employ any of the Seller's employees.
3. Creditor Matters.
3.1. Present and Reasonably Equivalent Value. The transactions
contemplated by this Agreement are intended by the parties to be a
contemporaneous exchange between the Seller and the Purchaser and will be
accomplished at Closing Date contemporaneously. To the extent that Purchaser
has assumed any obligations of the Seller and the Stockholders under this
Agreement, the assumption of the obligations at Closing Date shall be regarded
as a contemporaneous exchange for the transfer of assets as described in this
Agreement. The transactions contemplated by this Agreement represent a
regularly conducted, noncollusive sale, and have been negotiated by the parties
and their respective professional advisors in an arm's-length manner with due
regard for the respective obligations of the parties and value of the assets
transferred.
3.2. List of Creditors. The Stockholders shall provide the Purchaser
with a list of all existing creditors of the Seller and the Stockholders.
Existing creditors shall include any person who has a right to payment, whether
or not the right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured. The list of creditors will include the amounts of the claim or a
reasonable estimate of the amount if the exact amount of the claim is not known
including the name and address. If the Seller and the Stockholders are the
obligor of outstanding issue of bonds, debentures or similar instruments as to
which there is an indenture trustee, the list of creditors shall include the
name and address of the indentured trustee in the aggregate outstanding
principal
amount of the issue. The Treasurer of the county or counties wherein
any of the property being transferred under this Agreement is located shall be
listed as a creditor of the Seller and the Stockholders with respect to all
taxes, assessments, or other charges to be levied on the property being
transferred hereby. Seller and the Stockholders warrant and represent that the
list of creditors to be furnished under this paragraph shall be accurate and
complete without any omission or deletions.
3.3. Notice to Creditors. Seller and the Stockholders shall give
notice, at Seller and the Stockholders' expense, to all creditors listed under
the list provided by the Seller and the Stockholders under the foregoing
paragraph, which notice shall state the following:
(i) The transfer contemplated by this Agreement is about to be made;
(ii) The name and business address of the Seller and the Stockholders;
(iii) Whether or not all of the debts of the Seller and the
Stockholders are to be paid in full as they fall due as a result of
this transaction; and, if so, the address to which the creditors
should send their bills and invoices;
(iv) If the consideration to be given for the transactions
contemplated hereunder is not adequate to pay all Seller and the
Stockholders' creditors in full, the arrangements under which the
Seller and the Stockholders undertake to pay such creditors, and the
procedure to be followed by the creditors to assert their claims so
that they will be paid by the Seller and the Stockholders as
described in the notice.
3.4. Payment to Creditors. Seller covenants, represents and warrants
that it will pay all creditors of Seller and the Stockholders on the list
described in Section 3.2 and pursuant to the foregoing notice described in
Section 3.3.
4. Accounts Receivable.
4.1. Collection of Accounts Receivable. At the Closing, the Seller
shall deliver to the Purchaser a complete and correct list of the Seller's Total
Receivables (the "Total Receivables List") as of the close of business on the
day immediately preceding the Closing Date specifying the age of each of the
Accounts Receivable, the amount due, name and address of each account debtor on
the Total Receivables List (the "Total Account Debtors"). In the event that the
Value of the Accounts Receivable shall be less than the Value of the Total
Receivables pursuant to Section 1.3.3 hereof, the Seller shall, in addition to
the Total Receivables List, deliver to the Purchaser at the Closing a list of
all Accounts Receivable to be sold, assigned, transferred and delivered to the
Purchaser at the Closing (the "Accounts Receivable List"), specifying the age of
each of the Accounts Receivable, the amount due, name and address of each
account debtor on the Accounts Receivable List (the "Account Debtors"). Promptly
after the
Closing, the Seller and the Purchaser shall notify all Total Account
Debtors or the Account Debtors, as the case may be, by notice that the Purchaser
has purchased the Seller's Accounts Receivable, and shall direct all Account
Debtors or Total Account Debtors, as the case may be, to remit directly to the
Purchaser payment of all outstanding amounts represented by the Accounts
Receivable. The Seller and the Stockholders, jointly and severally, shall remit
promptly to the Purchaser in full the amount of any and all payments received by
any of them in respect of the Accounts Receivable, without any diminution,
offset, deduction or discount.
4.2. No Waiver, Discount or Indulgence. The Seller and the
Stockholders, jointly and severally, shall neither grant to any Account Debtor
any waiver, discount, indulgence or other delay in respect of the Accounts
Receivable, nor settle or compromise the amount of any Account Receivable or the
time in which any payment of any Account Receivable is due and payable.
4.3. Guarantee of Accounts Receivable. The Seller and the Stockholders
hereby absolutely and unconditionally guarantees to the Purchaser the payment in
full after the Closing Date of all of the Accounts Receivable of the Seller. The
parties hereto acknowledge and covenant, promise and agree that the guarantee by
the Seller contained in this Section is a guarantee of payment and collection;
accordingly, except as provided in Section 4.1 of this Agreement, the Purchaser
shall have no obligation whatsoever to enforce or attempt to enforce against any
Account Debtor or in respect of any collateral any right which the Purchaser has
or the Seller may have had in respect of any of the unpaid Accounts Receivable
or such collateral.
4.4. Security Interest in Accounts Receivable. With respect to and to
secure the Seller's obligation and duty hereunder to sell, assign, transfer and
deliver to the Purchaser the Accounts Receivable and the Seller's guarantee to
the Purchaser of payment of the Accounts Receivable as provided in Section 4.3
hereof, the Seller hereby grants to the Purchaser a security interest in all of
the Seller's Accounts Receivable, and all cash and noncash proceeds thereof. At
the Closing on the Closing Date, the Seller shall execute, acknowledge, seal and
deliver such number of financing statements and in such form and substance as
shall be required by the Purchaser to perfect its security interest in the
Accounts Receivable ("Financing Statements").
5. Removal of Assets. The Seller shall assemble by the time of Closing on the
Closing Date and thereafter maintain at the Seller's premises and place of
business located at the address set forth in Section 16.2 hereof (the
"Premises") all of the Assets (except for certain Records, the Accounts
Receivable, Cash and certificates of title to the Motor Vehicles, all of which
shall be delivered by the Seller to the Purchaser at the Closing) being
purchased by the Purchaser under this Agreement in order to facilitate the time,
place and delivery of the Assets to the Purchaser concurrently with and
following the Closing as hereafter provided. The Purchaser shall, concurrently
with the Closing and continuing for such period of time as shall be reasonably
necessary after the Closing, remove from the Premises such of the Assets being
purchased by the
Purchaser hereunder as shall not have been delivered by the Seller to the
Purchaser at the Closing. The Seller and the Stockholders shall cooperate fully
with the Purchaser in such removal, and the employees and agents of the
Purchaser for the purpose of such removal shall be granted and permitted access
to the Premises at any and all reasonable times. No rental, storage or other
charges shall be imposed upon the Purchaser or on any of the Assets while the
Assets are being removed from the Premises after the Closing on the Closing
Date.
6. Customer Lists and Records. Prior to or at the Closing the Seller shall
furnish the Purchaser with all of the Seller's Customer Lists, which shall
include a complete and correct list of all of the Seller's customers and their
addresses, and such other and further information as the Purchaser may
reasonably request in respect of the business of the Seller.
7. Approvals.
7.1. Other Permits, Licenses and Authorizations. Promptly after the
execution of this Agreement, the Purchaser shall use its best efforts to obtain
such approvals, consents, permits, licenses and authorizations, if any, of all
Governments and Governmental Agencies (as hereinafter defined in Section 10.1.4)
as may be required to complete lawfully the transactions contemplated hereby.
The Seller and the Stockholders, jointly and severally, agree to cooperate
fully, execute, acknowledge, swear to, seal and deliver such instruments and
documents and take all such other and further actions as may be necessary or
desirable in order to obtain such approvals, consents, permits, licenses and
authorizations.
8. Transfer of Cash. At the Closing, Seller shall deliver to the Purchaser
a check payable to the order of the Purchaser in an amount equal to the Cash of
Seller at the Closing on the Closing Date determined in accordance with Section
1.3.1.3.1.2 of this Agreement.
9. Representations and Warranties.
9.1. Representations and Warranties of Seller. The Seller represents
and warrants to the Purchaser as of the date hereof and as of the Closing on the
Closing Date that:
9.1.1. Ownership of Seller's Stock. The Stockholders are the sole
and exclusive record and beneficial owners of all of the outstanding shares of
the capital stock of the Seller, and constitute all of the directors and
officers of the Seller. The Stockholders have the absolute and unconditional
right, power and authority to cause the Seller to sell, assign, transfer and
deliver the Assets to the Purchaser in accordance with the terms of this
Agreement, to consummate the transactions contemplated hereby and to enter into
the Consulting and Noncompetition Agreements.
9.1.2. Due Organization; Name and Address; Good Standing, Authority
of Seller. The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maine. The only name and business
address of the Seller which has been used by the Seller at any time within the
past three years ending at the date of the Agreement is Physician Resources,
Inc., 000 Xxxx Xxxxxx, X.X. Xxx 0000 00000. The Seller has full right, power and
authority to own, lease and operate its properties and assets, and to
carry on its business of providing physician practice management services
including billing, consulting, software, business systems, related services and
sometimes financing to physicians and other health care providers. The Seller is
duly licensed, qualified and authorized to do business in each jurisdiction in
which the properties and assets owned by it or the nature of the business
conducted by it make such licensing, qualification and authorization legally
necessary. The Seller is not in breach or violation of, and the execution,
delivery and performance of this Agreement will not result in a breach or
violation of, any of the provisions of the Seller's articles of incorporation,
as amended to the date of this Agreement (the "Articles") or bylaws, as amended
to the date of this Agreement (the "Bylaws").
9.1.3. Authorization and Validity of Agreements. The Stockholders
have the legal capacity, right, power, and authority to enter into this
Agreement and the Consulting and Noncompetition Agreements. The Seller has the
full right, power and authority to execute, acknowledge, seal and deliver this
Agreement and to perform the transactions contemplated by this Agreement. The
execution, acknowledgment, sealing and delivery of this Agreement by the Seller
and the performance by the Seller of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate and stockholder
action. This Agreement has been duly executed, acknowledged, sealed and
delivered by the Seller and is the legal, valid and binding obligation of the
Seller and enforceable against the Seller in accordance with its terms. The
Consulting and Noncompetition Agreements, when executed, acknowledged, sealed
and delivered by the Seller, will be the legal, valid and binding obligation of
the Seller, enforceable against the Seller, in accordance with its terms, except
in each case as such enforceability may be limited by general principles of
equity, bankruptcy, insolvency, moratorium and similar laws relating to
creditors rights generally.
9.1.4. Agreement Not in Conflict with Other Instruments; Required
Approvals Obtained. The execution, acknowledgment, sealing, delivery, and
performance of this Agreement and the Consulting and Noncompetition Agreements
by the Seller, and the consummation of the transactions contemplated by this
Agreement and the Consulting and Noncompetition Agreements will not (a) violate
or require any consent, approval, or filing under, (i) any common law, law,
statute, ordinance, rule or regulation (collectively referred to throughout this
Agreement as "Laws") of any federal, state or local government (collectively
referred to throughout this Agreement as "Governments") or any agency, bureau,
commission, instrumentality or judicial body of any Governments (collectively
referred to throughout this Agreement as "Governmental Agencies"), or (ii) any
judgment, injunction, order, writ or decree of any court, arbitrator,
Government or Governmental Agency by which the Seller, any of the Assets or any
of the Stockholders are bound; (b) conflict with, require any consent, approval,
or filing under, result in the breach or termination of any provision of,
constitute a default under, or result in the creation of any claim, security
interest, lien, charge, or encumbrance upon any of the Assets pursuant to, (i)
the Seller's Articles or Bylaws, (ii) any indenture, mortgage, deed of trust,
license, permit, approval, consent, franchise, lease, contract, or other
instrument, document or agreement to which the Seller or any of the Stockholders
is a party or by which the Seller, any of the Stockholders or any of the Assets
is bound, or (iii) any judgment, injunction, order, writ or decree of any court,
arbitrator, Government or Governmental Agency by which the Seller, any of the
Assets or any of the Stockholders is bound; and all permits, licenses and
authorizations of any Government or Governmental Agency required to be obtained
prior to the Closing, shall have been obtained and shall be in full force and
effect as of the Closing Date.
9.1.5. Conduct of Business in Compliance with Regulatory and
Contractual Requirements. The Seller has conducted and is conducting its
business in compliance with all applicable Laws of all Governments and
Governmental Agencies. The Motor Vehicles, the Equipment and the Fixed Assets
and the use, operation and maintenance thereof, and the Inventory and the
maintenance and sale of the Inventory by the Seller (i) are in compliance with
all laws of all Governments and Governmental Agencies applicable with respect
thereto, and (ii) are in compliance with all restrictions, covenants,
agreements, contracts, commitments, understandings and arrangements applicable
with respect thereto.
9.1.6. Legal Proceedings. There is no action, suit, proceeding,
claim or arbitration, or any investigation by any person or entity, including,
but not limited to, any Government or Governmental Agency, (i) pending, to which
the Seller or any of the Stockholders is a party, or to the knowledge of the
Seller or any of the Stockholders, threatened against or relating to the Seller,
the Seller's business or any of the Assets, or (ii) challenging the Seller's or
the Stockholders' right to execute, acknowledge, seal, deliver, perform under or
consummate the transactions contemplated by this Agreement and, as respects the
Stockholders, the Consulting and Noncompetition Agreements, or (iii) asserting
any right with respect to any of the Assets, and, in each such case, there is no
basis for any such action, suit, proceeding, claim, arbitration or
investigation.
9.1.7. Tax Matters. Attached hereto as Exhibit 5 are complete and
correct copies of the income tax returns of the Seller for the Seller's three
fiscal years ended December 30, 1993, December 30, 1994, and December 30, 1995
(collectively, the "Returns"), as filed by the Seller with the Internal Revenue
Service (the "IRS"). All information reported on the Returns is true, accurate,
and complete. The Seller is not a party to, and is not aware of, any pending or
threatened action, suit, proceeding, or assessment against it for the collection
of taxes by any Government or Governmental Agency. The Seller has duly and
timely filed with all appropriate Governments and Governmental Agencies, all tax
returns, information returns, and reports required to be
filed by the Seller. Except for accruals for taxes payable (the "Accrued
Taxes") as set forth in the Seller's Balance Sheet as of September 30, 1995
(the "Balance Sheet"), the Seller has paid in full all taxes, interest,
penalties, assessments and deficiencies owed by the Seller to all taxing
authorities. All taxes and other assessments and levies which the Seller is
required by applicable Law to withhold or to collect have been duly withheld
and collected and have been paid over to the proper Governments and Governmental
Agencies or are properly held by the Seller for such payment. All claims by the
IRS or any state taxing authorities for taxes due and payable by the Seller have
been paid by the Seller. The provisions for the Accrued Taxes are adequate for
the payment of all of the Seller's liabilities for unpaid taxes (whether or not
disputed). All federal income tax returns required to be filed by the Seller
have either been examined by the IRS, or the period during which any assessments
may be made by the IRS has expired without waiver or extension for all years
through the Seller's fiscal year ended September 30, 1995, and any deficiencies
or assessments claimed or made have been paid, settled or fully provided for in
the Financial Statements. The Seller has not filed a consent pursuant to Section
341(f) of the Internal Revenue Code of 1986, as amended. The Seller is not a
party to, and is not aware of, any pending or threatened action, suit,
proceeding, or assessment against it for the collection of taxes by any
Government or Governmental Agency.
9.1.8. Accounts Receivable. The Accounts Receivable, including all
Accounts Receivable reflected on the Seller's Balance Sheet, all Accounts
Receivable arising after the date of the Balance Sheet and all Accounts
Receivable reflected on the Accounts Receivable List and Total Receivables List
are bona fide accounts receivable, arising from bona fide transactions in the
ordinary course of the Seller's business, the full amount of which is actually
owing to the Seller, subject to no Claims.
9.1.9. Title to Assets; Equipment and Fixed Assets. The Seller has
sole and exclusive, good and marketable title to all of the Assets free and
clear of any and all pledges, claims, threats, liens, restrictions, agreements,
leases, security interests, charges and encumbrances, All of the Equipment and
Fixed Assets are in good, working and operating condition and repair, reasonable
wear and tear excepted, fit for its intended purposes, and free from any defects
known to the Seller.
9.1.10. Inventory. All of the Inventory is transportable and
storable in the ordinary manner in which similar products are transported and
stored; conforms to all applicable Laws of all Governments and Governmental
Agencies; and none of the Inventory consists of products the age of which is
beyond or outside of the guidelines (the "Guidelines") or Inventory the age of
which will go beyond or outside of the Guidelines within reasonable time after
the Closing Date. All of the Inventory was valued in the Financial Statements on
the basis of accounting principles historically utilized by the Seller and
consistently applied. The value of any Inventory not in compliance with this
Section 10.1.12 is not included in any of the Financial Statements. No product
the age of which exceeds the Guidelines will be found in the possession of
a retailer to whom the Seller sold such product prior to the date of this
Agreement. All goods, including Inventory, previously sold by the Seller were of
merchantable quality, and the Seller has not breached any express or implied
warranties in connection with the sale of any and all of such goods.
9.1.11. Records. The Records, including, but not limited to, the
Customer List, that have been delivered by the Seller to the Purchaser or that
shall be delivered by the Seller to the Purchaser are true, complete and
correct.
9.1.12. Employment Matters.
9.1.12.1. None of the Seller's employees are covered by a
collective bargaining agreement or are represented by a labor organization, and
no petition for representation concerning any of the Seller's employees has been
filed with the National Labor Relations Board; the Seller is not aware of any
union organizational activity and has no reason to believe that any such
activity is being contemplated. The Seller has not engaged in any unfair labor
practice.
9.1.12.2. Seller is not in violation of applicable equal
employment opportunity wage and hour or any other Laws of any Government or
Governmental Agency relating to employment; there are no active, pending, or
threatened administrative or judicial proceedings under any Laws of any
Government or Governmental Agency; there are no claims, charges, and employment
related suits or controversies which have occurred within the last 10 years or
are presently pending or threatened under any employment related Laws of any
Government or Governmental Agency; and the Seller is not subject to any
judgments, decrees, conciliation agreements and settlement agreements concerning
employment related matters.
9.1.12.3. The Seller has not entered into any employment
agreements with any of its employees, and all employees may be terminated at
will; there is no contractual obligation or special termination or severance
arrangement in respect of any of Seller's employees; and there is no provision
of any agreement or arrangement with any of the Seller's employees, or any other
legal or contractual requirement, which would obligate the Seller to require the
Purchaser of the Assets to employ any of the Seller's employees.
9.1.12.4. The Seller has paid all wages or amounts that have been
listed within this agreement, bonuses, commissions and other benefits and sums
due (and all required taxes, insurance, social security and withholding
thereon). All accrued vacation, accrued sick leave, accrued benefits and accrued
payments (and pro rata accruals for a portion of a year) to its employees.
9.1.12.5. The Seller has maintained in effect all insurance
policies and other employee benefits covering any employee claims incurred
through the Closing Date and will assign, transfer and deliver contracts to the
Purchaser.
9.1.12.6. The Purchaser is under no obligation or duty, whether
under any contract, agreement, understanding or arrangement or under any
applicable Law of any Government or Governmental Agency to assume or be
responsible for any obligation, duty or liability, now existing or hereafter
arising, relating to or in connection with the Seller's employees or any
compensation, benefits or benefit plans in respect of the Seller's employees, or
otherwise arising out of or in connection with the transactions contemplated by
this Agreement, and the Seller has made no commitment and is under no obligation
to cause the Purchaser of the Assets to assume or to be responsible for any such
obligation, duty or liability.
9.1.14. Absence of Certain Changes or Events. Since December 30,
1995, the Seller has not:
9.1.14.1. Incurred any indebtedness, obligation, duty or liability
(contingent or otherwise) or acted as a guarantor or surety of any debt, except
normal trade or business obligations incurred in the ordinary course of the
Seller's business, as such business has been operated historically.
9.1.14.2. Subjected to pledge, lien, charge, claim, security
interest, agreement, deed of trust or encumbrance any of the Assets.
9.1.14.3. Sold, assigned, transferred, leased, disposed of, or
agreed to sell, assign, transfer, lease, or dispose of, any of the Assets,
except inventory sold in the ordinary course of the Seller's business, as such
business has been operated historically, at the full wholesale prices and rates
currently in effect, without discount or rebate.
9.1.14.4. Canceled or compromised any of the Accounts Receivable,
debts due to or claims of the Seller, or waived or released any of its rights
against Account Debtors or other third parties.
9.1.14.5. Made any capital expenditure in excess of Fifty Thousand
Dollars ($50,000.00) or entered into any contract, agreement, arrangement,
understanding or commitment therefor; or acquired or leased any assets or
property of any third person or party other than in the ordinary course of
Seller's business, as such business has been operated historically.
9.1.14.6. Suffered any casualty loss or damage, whether or not
such loss or damage is or was covered by insurance.
9.1.14.7. Suffered any adverse change in Seller's operations,
earnings, assets, liabilities, or business (financial or otherwise).
9.1.14.8. Changed the nature or manner of operation of the
Seller's business, the method of the Seller's accounting or the Seller's fiscal
year.
9.1.14.9. Other than in the ordinary course of the Seller's
business, as such business has been operated historically, made any payment or
entered into any transaction, contract, agreement, lease, arrangement,
understanding or commitment.
9.1.14.10. Failed to pay any indebtedness or other obligation,
including any taxes and other charges, when due.
9.1.14.11. Increased any salary, wages or other remuneration or
benefits to any officer, director or employee of the Seller.
9.1.14.12. Repurchased, redeemed or retired shares of its capital
stock or any debt securities (as defined in the Securities Act of 1933)
("Securities"), or issued or sold any Securities.
9.1.14.13. Dissolved, liquidated, or wound up or carried out any
partial liquidation, distribution or other transaction in the nature of a
partial liquidation or distribution; or effected any recapitalization or
reorganization.
9.1.14.14. Entered into any merger or share exchange with any
other person or entity.
9.1.14.15. Amended the Articles.
9.1.14.16. Organized any subsidiary or acquired, directly or
indirectly, any interest in any other person or entity.
9.1.14.17. Funded or advanced money, credit or property to or for
the benefit of any other person or entity.
9.1.14.18. Entered into any transaction with any of the
Stockholders.
9.1.15. Adverse Conditions. Seller has no knowledge of any past,
present or future condition, state of facts or circumstances which has affected
or which might affect adversely the business of the Seller or prevent the
Purchaser from carrying on the Seller's business.
9.1.16. Full Disclosure. This Agreement (including the Exhibits
hereto) does not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements contained herein not
misleading. There is no fact known to the Seller which is not disclosed in this
Agreement which materially
adversely affects the accuracy of the representations and warranties contained
in this Agreement or the Seller's financial condition, operations, business,
earnings, assets, or liabilities.
9.1.17. No Brokerage. The Seller has not incurred any obligation
or liability, contingent or otherwise, for brokerage fees, finder's fees,
agent's commissions, or the like in connection with this Agreement or the
transactions contemplated hereby.
9.1.18. Customers. The Seller is not aware that any customer of
the Seller intends to cease doing business with the Seller or intends to alter
adversely the amount of business such customer has done with the Seller.
9.1.19. Operation of Business. Since December 30, 1995, the Seller
has used, and from the date hereof until the Closing the Seller shall use its
best efforts to preserve the business of the Seller. Since December 30, 1995,
the Seller has maintained and preserved, and from the date hereof until the
Closing the Seller shall maintain and preserve the Seller's business at or above
the levels at which the business was previously operated and the relationship of
the Seller with its suppliers and customers.
9.1.20. Disclaimer of Fraudulent Intent. Seller represents and
warrants that the transactions described in this Agreement have been undertaken
in good faith, considering their obligations to any person or entity to whom the
Seller owes a right to payment, whether or not the right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured (collectively such persons
with such claims are called "Creditors" under this paragraph), and have
undertaken these transactions without any intent to hinder, delay or defraud any
such Creditors, and either have disclosed in the ordinary course of business or
will undertake to disclose to all such Creditors the existence of this
transaction, and have not and will not conceal this transaction or the proceeds
of this transaction from any such Creditors. Seller further represents and
warrants that: (1) they will not retain possession or control of any of the
property transferred under this Agreement following the closing, except as
expressly provided in this Agreement and then only for and on behalf of the
account of the Purchaser; (2) the Seller has not been sued or threatened with
suit by any Creditor prior to the execution of this Agreement, except as fully
disclosed in an exhibit to this Agreement; (3) the Seller has not removed or
concealed any assets from any Creditors; (4) the Seller has not incurred any
individual or aggregate substantial debt that is significantly greater than the
normal and customary debts of the Seller in the ordinary course of business;
(5) the Seller at closing believes in good faith that Seller will receive
consideration reasonably equivalent to the value of the assets transferred under
this Agreement.
9.1.21. Representations as to Solvency. Seller represents and warrants
that:
a. Prior to and after the closing of the transactions contemplated by
this Agreement, Seller will not engage in any business or transaction for which
the remaining assets of the Seller are unreasonably small in relation to the
business or transactions in which they undertake or intend to engage; and
b. Seller does not intend to incur or have no reasonable basis to
believe that they will incur any debts beyond the Seller's ability to pay as
they become due; and
c. Seller has and will continue to have assets greater than the
Seller's debts, based upon a fair valuation; and
d. As of the date of this Agreement and at closing, Seller shall have
paid and will pay their debts as they become due; and
e. The Purchaser is entitled to rely upon the foregoing representations
in asserting that the Purchaser has no reasonable cause to believe that the
Seller is or will become insolvent as a result of the transactions contemplated
by this Agreement.
9.2. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Seller as of the date hereof and as of the
Closing on the Closing Date that:
9.2.1. Due Organization; Good Standing; Power. The Purchaser is
a corporation duly incorporated, validly existing, and in good standing under
the laws of the State of Colorado. The Purchaser has full right, power and
authority to enter into this Agreement and the Consulting and Noncompetition
Agreements and to perform its obligations hereunder and thereunder.
9.2.2. Authorization and Validity of Documents. The execution,
delivery and performance by the Purchaser of this Agreement and the Consulting
and Noncompetition Agreements and the transactions contemplated hereby and
thereby, have been duly and validly authorized by the Purchaser. This Agreement
has been duly executed, acknowledged, sealed and delivered by the Purchaser and
is a legal, valid and binding obligation of the Purchaser, and the Consulting
and Noncompetition Agreements, when executed and delivered, will be legal, valid
and binding obligations of the Purchaser, each enforceable against the Purchaser
in accordance with its terms except as such enforceability may be limited by
general principles of equity, bankruptcy, insolvency, moratorium and similar
laws relating to creditors' rights generally.
9.2.3. No Brokerage. The Purchaser has not incurred any obligation
or liability, contingent or otherwise, for brokerage fees, finder's fees,
agent's commissions, or the like in connection with this Agreement or the
transactions contemplated hereby.
10. Particular Covenants.
10.1. Affirmative Covenants. The Seller covenants, promises and agrees
that from the date hereof and until the Closing the Seller shall:
10.1.1. Continue to operate the business of the Seller diligently;
and not take any action, omit to take any action, or engage in any transaction
other than in acts or transactions in the ordinary course of business, as such
business has been operated historically.
10.1.2. Preserve the business of Seller and preserve the
relationship of the business with suppliers, customers and others.
10.1.3. Maintain and continue normal and usual maintenance and
repair of the Equipment and Fixed Assets.
10.1.4. Cooperate with the Purchaser to achieve an orderly
transition of the business of the Seller to the Purchaser and an orderly
transfer of the Assets to the Purchaser.
10.1.5. Pay or provide for payment of all sales, use, personal
property, social security, withholding, payroll, unemployment compensation,
income and other taxes, assessments, fees and public charges due and payable by
the Seller in respect of its business and the Assets through the Closing Date
and any portion thereof applicable to any period prior to the Closing Date.
10.1.6. Pay all wages, bonuses, commissions and other employment
benefits and sums (and all required taxes, insurance and withholding thereon).
All accrued vacation, accrued sick leave, accrued benefits and accrued payments
(and pro rata accruals for a portion of a year) due to its employees through the
Closing Date will be carried forth on the book of the Purchaser.
10.1.7. Maintain in effect all insurance policies and other
employee benefits covering any employee claims which may be incurred through the
Closing Date and will assign, transfer and deliver contracts to the Purchaser.
10.1.8. Fully perform and comply with all covenants, promises and
agreements hereunder which are required to be performed or complied with by the
Seller prior to or at the Closing, and exert their best efforts to completely
satisfy and
fulfill all conditions precedent to the Purchaser's obligations to close
hereunder at the Closing on the Closing Date.
10.1.9. Exert their best efforts to prevent the occurrence of any
event which could result in any of Seller's representations and warranties
contained in this Agreement not being true and correct at or as of the time
immediately after the occurrence of such event, and the Seller shall promptly
notify the Purchaser of the occurrence of any event or the discovery of any fact
which would cause any of their covenants, promises and agreements to be breached
or violated or any of their representations and warranties to become not true
and correct or which could interfere with or prevent the consummation of the
transactions contemplated hereby.
10.1.10. Not apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of Seller
or any of their respective property, make a general assignment for the benefit
of creditors, or file a petition for relief under Title 11 of the United States
Code or any similar federal or state statute.
10.1.11. (i) Provide the Purchaser and its representatives with
full access during normal business hours to all of the Seller's properties,
Assets and Records, (ii) provide the Purchaser and its representatives with such
financial and operating data and other information with respect to the Seller's
business and properties as the Purchaser shall from time to time request, and
(iii) permit the Purchaser and its representatives to consult with the Seller's
representatives, officers, employees and accountants up to the time of Closing
and for 120 days thereafter.
10.1.12. Take none of the actions described in Section 10.1.15 of
this Agreement or any action which is or would cause a violation of any Laws of
any Governments or Governmental Agencies.
10.2. Risk of Loss. All risk of loss or damage to or destruction of the
Assets, in whole or in part, shall be and remain with the Seller until the
Closing and all of the transactions contemplated hereby shall have been
consummated. The Seller shall, promptly following the Seller's execution hereof,
have all of Seller's policies of insurance insuring the Assets duly endorsed to
protect the respective interests of the Seller and the Purchaser under this
Agreement and shall deliver to the Purchaser a copy of such policy endorsement.
10.3. Negotiations with Other Persons. Until the Closing, the Seller
shall not initiate, encourage the initiation by others, or participate in any
discussion or negotiations with any other person or entity relating to the sale
of any or all of the Assets, the business of the Seller or any Securities of the
Seller. From the date of this Agreement and until after the Closing and the
consummation of the transactions contemplated by this Agreement, the
Stockholders shall not offer for sale, sell or
otherwise transfer (with or without consideration) any Securities of the Seller
owned of record or beneficially by them.
12. Opinions of Counsel.
12.1. Opinion of Seller's Counsel. At the Closing, the Seller shall
deliver to the Purchaser the opinion of their counsel, dated as of the Closing
Date, that:
12.1.1. Ownership of Seller's Stock. The Stockholders are the sole
and exclusive record and beneficial owners of all of the outstanding shares of
the capital stock of the Seller, and constitute all of the directors and
officers of the Seller. The Stockholders have the absolute and unconditional
right, power and authority to cause the Seller to sell, assign, transfer and
deliver the Assets to the Purchaser in accordance with the terms of this
Agreement, to consummate the transactions contemplated hereby and to enter into
the Consulting and Noncompetition Agreements.
12.1.2. Due Organization; Good Standing; Authority of Seller. The
Seller is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Maine. The Seller has full right, power, and
authority to own, lease and operate its properties and assets, and to carry on
its business of providing physician practice management services including
billing, consulting, software, business systems, related services and sometimes
financing to physicians and other health care providers. The Seller is duly
licensed, qualified and authorized to do business in each jurisdiction in which
the properties and assets owned by it or the nature of the business conducted by
it make such licensing, qualification and authorization legally necessary. The
Seller is not in breach or violation of, and the execution, delivery and
performance of this Agreement will not result in a breach or violation of, any
of the provisions of the Seller's Articles or Bylaws.
12.1.3. Authorization and Validity of Agreements. The Stockholders
have the legal capacity, right, power and authority to enter into this Agreement
and the Consulting and Noncompetition Agreements. The Seller has the full right,
power and authority to execute, acknowledge, seal and deliver this Agreement and
to perform the transactions contemplated by this Agreement. The execution,
acknowledgment, sealing and delivery of this Agreement by the Seller and the
performance by the Seller of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action. This Agreement has
been duly executed, acknowledged, sealed and delivered by the Seller and is the
legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms. The Consulting and Noncompetition
Agreements are legal, valid and binding obligations of each of the Stockholders,
enforceable against each of the Stockholders in accordance with its terms,
except in each case as such enforceability may be limited by general principles
of equity, bankruptcy, insolvency, moratorium and similar laws relating to
creditors' rights generally.
12.1.4. Agreement Not in Conflict with Other Instruments; Required
Approvals Obtained. The execution, acknowledgment, sealing, delivery, and
performance of this Agreement and the Consulting and Noncompetition Agreements
by the Seller, and the consummation of the transactions contemplated by this
Agreement and the Consulting and Noncompetition Agreements will not (a) violate
or require any consent, approval, or filing under, (i) any Laws of any
Governments or any Governmental Agencies, or (ii) any judgment, injunction,
order, writ or decree of any court, arbitrator, Government or Governmental
Agency by which the Seller or any of the Assets are bound; (b) conflict with,
require any consent, approval, or filing under, result in the breach or
termination of any provision of, constitute a default under, or result in the
creation of any claim, security interest, lien, charge, or encumbrance upon any
of the Assets pursuant to, (i) the Seller's Articles or Bylaws, (ii) any
indenture, mortgage, deed of trust, license, permit, approval, consent,
franchise, lease, contract, or other instrument, document or agreement to which
the Seller is a party or by which any of the Assets of any of the Stockholders
is bound, or (iii) any judgment, injunction, order, writ or decree of any court,
arbitrator, Government or Governmental Agency by which the Seller or any of the
Assets is bound.
12.1.5. Conduct of Business in Compliance with Regulatory and
Contractual Requirements. The Seller has conducted and is conducting its
business in compliance with all applicable Laws of all Governments and
Governmental Agencies. The Equipment and the Fixed Assets and the use,
operation and maintenance thereof and the Inventory and the maintenance and sale
of the Inventory by the Seller (i) are in compliance with all Laws of all
Governments and Governmental Agencies applicable with respect thereto, and (ii)
are in compliance with all restrictions, covenants, agreements, contracts,
commitments, understandings and arrangements applicable with respect thereto.
12.1.6. Legal Proceedings. There is no action, suit, proceeding,
claim or arbitration, or any investigation by any person or entity, including
any Government or Governmental Agency, (i) pending, to which the Seller is a
party, or to the knowledge of the Seller, threatened against or relating to the
Seller, the Seller's business or any of the Assets, or (ii) challenging the
Seller's right to execute, acknowledge, seal, deliver, perform under or
consummate the transactions contemplated by this Agreement and the Articles and,
as respects the Stockholders, the Consulting and Noncompetition Agreements, or
(iii) asserting any right with respect to any of the Assets, and there is no
basis for any such action, suit, proceeding, claim, arbitration or
investigation.
12.1.7. Truth of Warranties. To the best knowledge of counsel, all
representations and warranties of the Seller contained herein are true, complete
and correct, and the Seller is not in breach or violation of or in default under
any covenant, promise or agreement in this Agreement.
12.2. Opinion of Purchaser's Counsel. At the Closing, the Purchaser
shall deliver to the Seller the opinion of its counsel, dated as of the Closing
Date, that:
12.2.1. Due Organization; Good Standing; Authority of Purchaser.
The Purchaser is a corporation duly incorporated, validly existing, and in good
standing under the laws of the State of Colorado. The Purchaser has all
requisite corporate power to execute, acknowledge, seal and deliver this
Agreement, the Articles and the Consulting and Noncompetition Agreements and to
perform its obligations hereunder and thereunder.
12.2.2. Authorization and Validity of Agreements. The execution,
delivery, and performance of this Agreement and the Consulting and
Noncompetition Agreements by the Purchaser, and the consummation by the
Purchaser of the transactions contemplated hereby and thereby, have been duly
and validly authorized by the Purchaser. This Agreement and the Consulting and
Noncompetition Agreements have been duly executed, acknowledged, sealed and
delivered by the Purchaser and are the legal, valid, and binding obligations of
the Purchaser, each enforceable against the Purchaser in accordance with its
terms except as such enforceability may be limited by general principles of
equity, bankruptcy, insolvency, moratorium and similar laws relating to
creditors' rights generally.
13. Closing.
13.1. Time, Date and Place. The closing of the purchase and sale of the
Assets and the other transactions contemplated by this Agreement (referred to
throughout this Agreement as the "Closing") shall take place at the offices of
Physician Resources, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000, at 10:00 o'clock
A.M., E.S.T., on September 27, 1996, if such day shall be a business day, and if
not a business day, then on the next succeeding day that shall be a business
day. The time, place and date of the Closing are referred to throughout this
Agreement as the "Closing Date."
13.2. Seller's Conditions to Close. The Seller's obligation to close
the transactions contemplated hereby at the Closing shall be subject to the
complete satisfaction and fulfillment of all of the following conditions
precedent, any or all of which may be waived in whole or in part by the Seller
(but no such waiver of any such condition precedent shall be or constitute a
waiver of any covenant, promise, agreement, representation or warranty made by
the Purchaser in this Agreement):
13.2.1. All representations and warranties made by the Purchaser
in this Agreement shall be complete and accurate at and as of the Closing on the
Closing Date.
13.2.2. All covenants, promises and agreements made by the
Purchaser in this Agreement and all other actions required to be performed or
complied
with by the Purchaser under this Agreement prior to or at the Closing
shall have been fully performed or complied with by the Purchaser.
13.3. Purchaser's Conditions to Close. The Purchaser's obligation to
close the transactions contemplated hereby at the Closing shall be subject to
the complete satisfaction and fulfillment of all of the following conditions
precedent, any or all of which may be waived in whole or in part by the
Purchaser (but no such waiver of any such condition precedent shall be or
constitute a waiver of any covenant, promise, agreement, representation or
warranty made by the Seller in this Agreement):
13.3.1. All representations and warranties made by the Seller in
this Agreement shall be complete and accurate at and as of the Closing on the
Closing Date.
13.3.2. All covenants, promises and agreements made by the Seller
in this Agreement and all other actions required to be performed or complied
with by the Seller under this Agreement prior to or at the Closing shall have
been fully performed or complied with by the Seller.
13.3.3. Seller shall have fully disclosed this transaction to all
creditors of Seller and shall not have concealed this transaction from any
creditor; Seller shall not have been sued or threatened with suit, except as
otherwise fully disclosed to Purchaser in an exhibit to this Agreement; Seller
shall not have removed or concealed any assets, whether or not such assets are
to be transferred under this Agreement; Seller shall have assets greater than
Seller's debts, using a fair valuation; Seller shall pay and continue to pay
their debts as they become due; and Seller shall not have incurred individually
or in the aggregate any substantial debt that is substantially greater than the
debts incurred by the Seller in the ordinary course of Seller's business.
13.3.4. The Purchaser shall have received all things required to
be delivered or furnished to the Purchaser by the Seller hereunder prior to or
at the Closing.
13.3.5. All necessary permits, licenses and approvals pursuant to
Section 7 of this Agreement shall have been obtained.
13.3.6. There shall not have occurred any material adverse change
in the business of Seller or in the Assets.
13.4. Actions to Be Taken at the Closing. At the Closing, the following
actions, among others, shall occur:
13.4.1. The Seller shall deliver to the Purchaser the Closing
Account Statement pursuant to Section 1.3 hereof.
13.4.2. The Seller shall deliver to the Purchaser the Total
Receivables List or the Accounts Receivable List, and, if not previously
delivered, the Customer List, pursuant to Sections 4.1 and 6.1 hereof,
respectively, and shall deliver the Inventory List in accordance with Section
1.3 hereof.
13.4.3. The Seller shall execute, acknowledge, seal, and deliver
to the Purchaser a Warranty Xxxx of Sale in the form attached hereto as Exhibit
7 and incorporated herein by reference pursuant to which the Seller shall sell,
assign, and transfer to the Purchaser the Equipment, Fixed Assets and the
Inventory.
13.4.4. The Stockholders and the Purchaser shall execute,
acknowledge, seal and deliver the Consulting and Noncompetition Agreements
attached hereto as Exhibits 2A in accordance with Section 1.4 hereof.
13.4.5. The Purchaser shall deliver to the Stockholders the
Contract Price of 300,000 shares of Acadia National Health Systems, Inc. as full
consideration in accordance with Section 1.2 hereof.
13.4.6. The Seller and the Purchaser shall each deliver to the
other the opinions of their respective counsel in accordance with Section 12
hereof.
13.4.7. The Seller and the Purchaser shall instruct the
Accountants to perform the post-Closing review of the Closing Balance Sheet
pursuant to Section 1.3 hereof.
13.5. Contemporaneous Transfer. All transfers, assignments,
conveyances, and transactions under this Agreement shall be effected
contemporaneously and shall be a contemporaneous exchange for present value
between the Seller and the Purchaser.
13.6. Effective Date of Transfer and Closing. Notwithstanding anything
to the contrary in this Agreement, the Purchaser may extend and postpone the
closing, and the delivery of consideration hereof, and the closing as extended
shall be regarded as contemporaneous and simultaneous, until (i) all deeds and
conveyances of real property have been so far perfected that a good faith
purchaser of the real property from the Seller against whom applicable law
permits the transfer to be perfected cannot acquire an interest in the real
properties superior to the interests of the Purchaser; (ii) with respect to
assets that are not real property, or that are fixtures, when the transfer to
the Purchaser is so far perfected that a creditor on a simple contract cannot
acquire a judicial lien against the Seller superior to the interests of the
Purchaser; and (iii) until the Purchaser has physical possession of all other
such assets.
13.7. Operation of Business. From and after the close of business on
the day immediately preceding the Closing Date, the Seller shall cease to
operate the business of providing physician practice management services
including billing, consulting, software, business systems, related services and
sometimes financing to physicians and other health care providers, and shall
thereafter not take any action with respect to any of the Assets, except as
expressly provided herein.
14. Indemnification.
14.1. Indemnification by Seller. The Seller shall defend, indemnify and
hold harmless the Purchaser, its officers, directors, stockholders, agents,
servants and employees and their respective heirs, personal and legal
representatives, guardians, successors and assigns, from and against any and all
claims, threats, liabilities, taxes, interest, fines, penalties, suits, actions,
proceedings, demands, damages, losses, costs and expenses (including attorneys'
and experts' fees and court costs) of every kind and nature arising out of,
resulting from, or in connection with:
14.1.1. Any misrepresentation or breach by the Seller of any
representation or warranty contained in this Agreement.
14.1.2. Any nonperformance, failure to comply or breach by Seller
of any covenant, promise or agreement of the Seller contained in this Agreement.
14.1.3. Any debts, obligations, duties and liabilities of the
Seller unless herein disclosed specifically.
14.1.4. Any matter, act, thing or occurrence caused by or
resulting from any act or omission of Seller prior to the Closing.
14.2. Indemnification by Purchaser. Purchaser shall defend, indemnify
and hold harmless the Sellers and their respective heirs, personal and legal
representatives, guardians, successors and assigns, from and against any and all
claims, threats, liabilities, taxes, interest, fines, penalties, suits, actions,
proceedings, demands, damages, losses, costs and expenses (including attorneys'
and experts' fees and court costs) of every kind and nature arising out of,
resulting from, or in connection with:
14.2.1. Any misrepresentation, omission or breach by Purchaser of
any representation or warranty contained in this Agreement.
14.2.2. Any nonperformance, failure to comply or breach by the
Purchaser of any covenant, promise or agreement of the Purchaser contained in
this Agreement.
14.3. Defense of Claims. In the event of any claim, threat, liability,
tax, interest, fine, penalty, suit, action, proceeding, demand, damage, loss,
cost or expense with respect to which indemnity is or may be sought hereunder
(an "Indemnity Claim"), the indemnified party shall promptly notify the
indemnifying party of such Indemnity Claim, specifying in reasonable detail the
Indemnity Claim and the circumstances under which it arose. The indemnifying
party may elect to assume the defense of such Indemnity Claim, at its expense,
by written notice to the indemnified party given within 10 days after the
indemnifying party receives notice of the Claim, and the indemnifying party
shall promptly engage counsel reasonably acceptable to the indemnified party to
direct and conduct such defense; provided, however, that the indemnified party
shall have the right to engage its own counsel, at its own expense, to
participate in such defense. In the event the indemnifying party does not so
elect to assume the defense of such Indemnity Claim in the manner specified
above, or if, in the reasonable opinion of counsel to the indemnified party,
there are defenses available to the indemnified party which are different from
or additional to those available to the indemnifying party or which give rise to
a material conflict between the defense of the indemnified party and of the
indemnifying party, then upon notice to the indemnifying party, the indemnified
party may elect to engage separate counsel to conduct its defense, at the
expense of the indemnifying party, and the indemnifying party shall not have the
right to direct or conduct such defense.
14.3.1. In the event the indemnifying party assumes the defense
of any Indemnity Claim, it may at any time notify the indemnified party of its
intention to settle, compromise or satisfy such Indemnity Claim and may make
such settlement, compromise or satisfaction (at its own expense) unless within
20 days after the giving of such notice the indemnified party shall give notice
of its intention to assume the defense of the Indemnity Claim, in which event
the indemnifying party shall be relieved of its duty hereunder to indemnify the
indemnified party. Unless the indemnified party shall have given the notice
referred to in the preceding sentence, (I) the indemnified party shall not
consent to or make any settlement, compromise or satisfaction with respect to
the Indemnity Claim without the prior written consent of the indemnifying party,
which consent shall not be unreasonably withheld, and (ii) any settlement,
compromise or satisfaction made by the indemnifying party with respect to such
Indemnity Claim shall be deemed to have been consented to by and shall be
binding upon the indemnified party.
15. Expenses of Transactions. All sales, transfer and use taxes incurred in
connection with the sale, assignment, transfer and delivery of the Equipment,
the Fixed Assets and the Motor Vehicles, and all filing and recording fees and
taxes in connection with the filing and recordation of the Financing Statements
shall be paid by the Purchaser.
16. Miscellaneous.
16.1. Survival of Representations, Warranties and Agreements. All of
the representations, warranties, covenants, promises and agreements of the
parties contained in this Agreement (or in any document delivered or to be
delivered pursuant to this Agreement or at or in connection with the Closing)
shall survive the execution, acknowledgment, sealing and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
16.2. Notices. All notices, requests, demands, consents, and other
communications which are required or may be given under this Agreement
(collectively, the "Notices") shall be in writing and shall be given either (a)
by personal delivery against a receipted copy, or (b) by certified or registered
United States mail, return receipt requested, postage prepaid, to the following
addresses:
(i) If to Seller, to
Physician Resources, Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
with a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxx, Taintor & Xxxxxx, P.A.
00 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
(ii) If to the Majority Stockholders, to
Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Xxxxxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
with a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxx, Xxxxxxx & Xxxxxx, P.A.
00 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
(iii)If to the Purchaser:
Acadia National Health Systems, Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
with a copy to:
Xxxx X. Xxxxxxxx, Esquire
Xxxx X. Xxxxxxxx, P.C.
000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
or to such other address of which written notice in accordance with this Section
16.2 shall have been provided by such party. Notices may only be given in the
manner hereinabove described in this Section 16.2 and shall be deemed received
when given in such manner.
16.3. Entire Agreement. This Agreement (including the Exhibits hereto)
constitutes the full, entire and integrated agreement between the parties hereto
with respect to the subject matter hereof, and supersedes all prior
negotiations, correspondence, understandings and agreements among the parties
hereto respecting the subject matter hereof.
16.4. Assignability. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other parties hereto.
16.5. Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
personal and legal representatives, guardians, successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights, remedies, obligations, or liabilities.
16.6. Severability. Any provision of this Agreement which is held by
a court of competent jurisdiction to be prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability, without
invalidating or rendering unenforceable the remaining provisions of this
Agreement.
16.7. Amendment; Waiver. No provision of this Agreement may be amended,
waived or otherwise modified without the prior written consent of all of the
parties hereto. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement herein contained. The waiver by any party hereto
of a breach of any provision or condition contained in this Agreement shall not
operate or be construed as a waiver of any subsequent breach or of any other
conditions hereof.
16.8. Section Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
16.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
16.10. Applicable Law; Jurisdiction and Venue; Service of Process.
16.10.1. This Agreement was made in the State of Maine, and shall
be governed by, construed, interpreted and enforced in accordance with the laws
of the State of Maine. Any suits, proceedings and other actions relating to,
arising out of or in connection with this Agreement shall be submitted to the in
personam jurisdiction of the courts of the State of Maine and venue for all such
suits, proceedings and other actions shall be in Androscoggin County, Maine. The
Seller and the Purchaser hereby waive any claim against or objection to in
personam jurisdiction and venue in the courts of Maine.
16.10.2. The Seller hereby irrevocably appoints XXXXX X. XXXXX,
ESQ, as its, his or her true and lawful agent to receive service of process in
any suit, action or proceeding against it, him or her relating to, arising out
of or in connection with this Agreement, and hereby consents and agrees that
service upon the aforementioned attorney and agent shall be of the same force
and validity as if served personally upon each of them.
16.11. Remedies. The parties hereto acknowledge that in the event of
a breach of this Agreement, any claim for monetary damages hereunder may not
constitute an adequate remedy, and that it may therefore be necessary for the
protection of the parties and to carry out the terms of this Agreement to apply
for the specific performance of the provisions hereof. It is accordingly hereby
agreed by all parties that no objection to the form of the action or the relief
prayed for in any proceeding for specific performance of this Agreement shall be
raised by any party, in order that such relief may be expeditiously obtained by
an aggrieved party. All parties may proceed to protect and enforce their rights
hereunder by a suit in equity, transaction at law or other appropriate
proceeding, whether for specific performance or for an injunction against a
violation of the terms hereof or in aid of the exercise of any right, power or
remedy granted hereunder or by law, equity or statute or otherwise. No course of
dealing and no delay on the part of any party hereto in exercising any right,
power or remedy shall operate as a waiver thereof or otherwise prejudice its
rights, powers or remedies, and no right, power or remedy conferred hereby shall
be exclusive of any other right, power or remedy referred to herein or now or
hereafter available at law, in equity, by statute or otherwise.
16.12. Further Assurances. The Seller agrees to execute, acknowledge,
seal and deliver, after the date hereof, without additional consideration, such
further assurances, instruments and documents, and to take such further actions,
as the
Purchaser may reasonably request in order to fulfill the intent of this
Agreement and the transactions contemplated hereby.
16.13. Use of Genders. Whenever used in this Agreement, the singular
shall include the plural and vice versa, and the use of any gender shall include
all genders and the neuter.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement under seal, with the intention of making it a sealed instrument, on
the date first above written.
ATTEST: SELLER:
PHYSICIAN RESOURCES, INC.
By:
XXXXXXXXX X. XXXXX, XXXXXX X. XXXXXXX,
Secretary President
WITNESS: MAJORITY STOCKHOLDERS:
By:
XXXXXX X. XXXXXXX
By:
XXXXXXXXX X. XXXXX
PURCHASER:
ATTEST: ACADIA NATIONAL HEALTH
SYSTEMS, INC.
By
XXXXXXXXX X. XXXXX, XXXXXX X. XXXXXXX,
Vice President and Secretary President
EXHIBIT LIST
Exhibit 1 Asset List
1A Equipment
1B Fixed Assets
Exhibit 2A Consulting and Noncompetition Agreement
Exhibit 4 Financial Statements
Exhibit 5 Tax Returns
Exhibit 6 Articles of Transfer
Exhibit 7 Warranty Xxxx of Sale
FIXED ASSETS
DESCRIPTION ACQUIRED COST
NUR Sp Mnth CL Life SV or Bus % ITC
Group #1 - EQUIPMENT
2 1 Sharp Copier 05/31/92 $2,066.00
N S M 5
6 1 Fax Machine 05/31/92 $1,054.00
N S M 5
10 1 Multimate-Comp Disc 05/31/92 $332.00
N S M 5
11 1 Printer 05/31/92 $1,232.00
N S M 5
12 1 Toshiba Printer/Modems 05/31/92 $1,193.00
N S M 5
13 1 MCRCM Modem 05/31/92 $389.00
N S M 5
18 1 Math Co-processor 05/31/92 $259.00
N S M 5
19 12 Xxxx Xxxxx Terminals 05/31/92 $312.00
N S M 5
21 1 Epson DFX Printer 05/31/92 $928.00
N S M 5
24 1 Data Set 5/31/92M $440.00
N S M 5 100.00L
25 14 Modems 5/31/92M $792.00
N S M 5 100.00L
27 5 Data Set 7/792M $3,000.00
N S M 5 100.00L
28 1 Microcomputer 8/6/92M $4,091.60
N S M 5 100.00L
29 1 Microcomputer 10/13/92M $2,113.64
N S M 5 100.00L
30 1 Data Set 10/15/92M $1,000.00
N S M 5 100.00L
33 1 Data Set 12/1/92M $1,500.00
N S M 100.00L
34 5 Data Set 02/01/93 $4,500.00
N M 100.00L
35 1 Phone System 07/01/93 $4,311.23
N M 5
36 1 MS Computer 11/01/93 $1,185.40
N M 5 100.00L
37 1 Fax Machine 5/4/94M $1,322.70
N M 5
39 1 Epson Printer 10/26/94M $2,795.00
N X 0
00 0 00XXx Xxxxxxxx System 12/12/94M $3,656.90
N M 5
41 1 A/C Unit 06/15/95 $958.25
N M 5
42 1 Data Set 07/14/95 $1,315.00
N M 5
43 12 A/C Unit 07/27/95 $947.04
N M 5
3 Computers - Computer Support Ass. 03/31/96 $7,923.50
1 Sharp Photocopier - ABS 07/31/96 $7,308.70
1 Module - Wolf Communication 09/30/96 $1,394.85
1 Fax Machine - ABS 09/30/96 $848.00
Healthpac - partial payment 10/02/96 $8,000.00
Hardware/Monolith -
American Business Systems 10/02/96 $13,836.18
Total: $81,004.99
Group #2 - FURNITURE
1 1 "Office Furniture Cen, Inc." 05/31/92 $195.00
N S M 7
2 1 "Xxxx Xxxxxxx, Inc." 05/31/92 $10,750.00
N S M 7
3 1 Gallery 1257 05/31/92 $3,470.00
N S M 7
4 1 Xxxxx Office 05/31/92 $143.00
N S M
5 1 FX Xxxxxxxx 05/31/92 $2,442.00
N S M 7
6 1 Refrigerator 06/30/93 $587.95
N M 7
Total: $17,587.95
Group #3 - LEASEHOLD IMPROVEMENTS
2 1 Improvements 01/31/95 $1,500.00
R M 39
3 1 Improvements 01/31/95 $4,000.00
R M 39
4 1 Improvements 02/28/95 $1,590.23
R M 39
5 1 Improvements 03/30/95 $3,000.00
R M 39
6 1 Improvements 04/30/95 $3,000.00
R M 39
7 1 Improvements 04/30/95 $1,450.00
R M 39 $14,540.23
Total:
Grand Total: $113,133.17
EXHIBIT 2A
CONSULTING AND NONCOMPETITION AGREEMENT
THIS CONSULTING AND NONCOMPETITION AGREEMENT ("Agreement") is made
this 27th day of September, 1995, by and among ACADIA NATIONAL HEALTH SYSTEMS,
INC. (the "Company"), a Colorado corporation, and PHYSICIAN RESOURCES, INC. (the
"Consultant"), a Maine corporation and its shareholders Xxxxxxxxx X. Xxxxx and
Xxxxxx X. Xxxxxxx.
Explanatory Statement
On the date hereof, the Company purchased substantially all of the assets
of the Consultant.
The Company recognizes that the Consultant has unique knowledge and
experience in the Business and of the exclusive territory of the Consultant (the
"Territory"), and that the Consultant has personal relationships with persons
and entities that, on the date hereof are, or at any time during the two years
preceding the date hereof were, customers of the Consultant ("Customers").
Accordingly, the Company desires to engage the services of the Consultant, and
the Consultant agrees to provide such services, and the parties hereto have
agreed to certain other terms governing their relationship, on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Explanatory Statement hereto,
which the parties agree constitutes a substantive part of this Agreement, the
mutual covenants, promises and agreements herein contained, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby covenant, promise and agree as
follows:
1. Consulting Services.
1.1. Provided that the Consultant is not dissolved, the Consultant
hereby agrees to be available to the Company from time to time, at reasonable
times, upon prior reasonable notice, during the term of this Agreement, to
consult with the Company regarding the Business, the Territory, the Customers
and all other matters concerning the Consultant and its products, including, but
not limited to, advising the Company regarding the following consultation
matters (the "Services"):
(a) The Company's relationship with the Customers and the
collection of accounts receivable.
(b) Potential new customers and customer locations, and new
developments and contacts in the Territory.
Customer tastes and preferences, purchasing habits, trends in
the Customer base and the Territory, and Customer demand.
(d) The Company's purchases, including timing, quantities,
components of orders and selection of new products.
(e) Marketing, development of new markets, achieving greater
market penetration, marketing techniques and market performance.
(f) The relationship of Company personnel with the Customers,
contact with the Customers, planning of delivery routes and scheduling.
In the event the Consultant shall be unable to perform the Services due to
dissolution or reasonable unavailability, then the Company by reason thereof
shall not have the right to recover any part of the consideration.
2. Term. The term of this Agreement shall be for a period of 5 years from
the date hereof.
3. Covenant against Competition.
3.1. The parties hereto acknowledge and agree that the Consultant's
services will be of a special and unusual character which have a unique value to
the Company, the loss of which cannot be adequately compensated by damages in an
action at law and, if used in competition with the Company, could cause serious
harm to the Company. Further, the Consultant and the Company also recognize that
an important part of the Consultant's duties will be to develop the Company's
customer base through the Consultant's personal contact with the Customers and
other persons having business relationships with the Company, and that there is
a danger that this customer base may follow the Consultant. Accordingly, the
Consultant agrees that, during the period that the Consultant is engaged as a
consultant to the Company hereunder, the Consultant shall not do any of the
following:
(a) Offer to sell, or solicit an offer to buy, any products sold
by the Consultant during the two years preceding the date hereof or sold by the
Company during the term hereof ("Products") to any Customers or any persons or
entities that are or were customers or accounts of the Company at any time
during the term hereof ("Company Customers") to or for the benefit or account of
any person or entity other than the Company.
(b) Sell or attempt to sell any Products to any Customer or
Company Customer to or for the benefit or account of any person other than the
Company.
(c) Solicit for employment or employ to or for the benefit or
account of any person or entity other than the Company any employee of the
Company, nor shall the Consultant urge, directly or indirectly, any Customers or
Company Customers to discontinue, in whole or in part, business with the Company
or not to do business with the Company.
(d) Engage, either as a consultant, independent contractor,
proprietor, stockholder, partner, member, manager, officer, director, employee,
or, otherwise in any business which sells Products or which otherwise competes
with the Company in Counties of the State of Maine.
3.2. The parties hereto agree that to the extent that any provision or
portion of Section 3.1 of this Agreement shall be held, found or deemed to be
unreasonable, unlawful or unenforceable by a court of competent jurisdiction,
then any such provision or portion thereof shall be deemed to be modified to the
extent necessary in order that any such provision or portion thereof shall be
legally enforceable to the fullest extent permitted by applicable law; and the
parties hereto do further agree that any court of competent jurisdiction shall,
and the parties hereto do hereby expressly authorize, request and empower any
court of competent jurisdiction to, enforce any such provision or portion
thereof or to modify any such provision or portion thereof in order that any
such provision or portion thereof shall be enforced by such court to the fullest
extent permitted by applicable law.
3.3. As used in this Section 3, "Customers" and "Company Customers"
shall include any person or entity that, directly or indirectly, through one or
more intermediaries, controls or is controlled by, or is under common control
with, any such "Customers" or "Company Customers."
4. Confidential Information. The Consultant and the Company recognize that
due to the nature of the Consultant's engagement with the Company and the
relationship of the Consultant to the Company's business, the Consultant will
have access to and will acquire, and may assist in developing, confidential and
proprietary information (as described below) relating to the business and
operations of the Company. The Consultant acknowledges that such information has
been and will continue to be of critical importance to the business of the
Company and that disclosure of it to or its use by others could cause
substantial loss to the Company. The Consultant and the Company also recognize
that an important part of the Consultant's duties will be to develop strong
business relationships for the exclusive benefit of the Company through the use
of such confidential and proprietary information and the Consultant's personal
contact with customers, agents and others having business relationships with the
Company. Accordingly, the Consultant agrees as follows:
4.1. The Consultant will keep confidential any and all "trade secrets
and confidential and proprietary information" of the Company which are now known
or which hereafter may become known to the Consultant as a result of the
Consultant's relationship with the Company and shall not at any time directly or
indirectly disclose any such information to any person, or entity, or use the
same in any way other than in connection with the business of the Company during
and at all times after the term hereof. The Consultant further agrees that, upon
termination of this Agreement the Consultant shall return to the Company all
books, records, lists and other written, typed or printed materials or data, and
all copies thereof and excerpts therefrom, whether furnished by the Company or
prepared by the Consultant, which contain any information relating to the
Company's business, and agrees neither to make nor retain any copies of such
materials after termination of this Agreement.
4.2. For purposes of this Agreement, "trade secrets and confidential
and proprietary information" shall include information, whether written or
otherwise, unique to the Company which has a significant business purpose and is
not known or generally available from sources outside the Company or typical of
industry practice, including, but not limited to, information with respect to
costs, pricing, present and prospective products, Customers and Company
Customers and prospective customers, sales and marketing information and data,
data relating to customers' buying practices and procedures, prospective and
executed contracts and other business arrangements, information regarding
earnings, forecasts, reports, bidding information, marketing, and any other
information regarding the Company, its business, methods of operations,
personnel, assets and activities.
5. Remedies.
5.1. As the violation by the Consultant of any of the provisions of
Section 3 and Section 4 of this Agreement would cause irreparable injury to the
Company, and there is no adequate remedy at law for such violation, the Company
shall have the right, in addition to any other remedies available at law or in
equity, to enjoin the Consultant in a court of equity from violating such
provisions, and no objection as to the form of relief prayed will be raised by
the Consultant, or if raised, shall not be effective, in connection with any
such action.
5.2. The provisions of Sections 3.1(a) through (d) of this Agreement
and of Section 4 of this Agreement are cumulative. Compliance with all
provisions of such Sections is a condition precedent to the Company's obligation
to make any payments of any nature to the Consultant whether under this
Agreement or otherwise. Nothing in this Agreement shall be construed as
prohibiting the Company from pursuing any other remedies available to it for a
breach or threatened breach of Section 3 or Section 4 of this Agreement.
6. Consideration. In consideration of the Services and the covenants and
agreements of the Consultant under Section 3 hereof, the Company shall pay the
Consultant, concurrently with the execution of this Agreement, good and valuable
consideration (the "Contract Price"), and the Consultant, by executing this
Agreement, hereby acknowledges receipt of payment in full of the Contract Price.
The parties acknowledge and agree that the amount of the Contract Price
represents (I) consideration for the Services for each year during the term
hereof, and (ii) consideration for the covenants and agreements contained in
Section 3 hereof for each year during the term hereof.
7. Miscellaneous.
7.1. Survival of Certain Covenants. The covenants of the Consultant
contained in Sections 3 and 4 of this Agreement shall survive the termination
and expiration of the term of this Agreement, except that this shall not be
construed to have the effect of preventing the Consultant from engaging in the
full range of activities available to him prior to the execution of this
Agreement after the term of this Agreement shall have expired.
7.2. Notices. All notices, requests, demands, consents, and other
communications which are required or may be given under this Agreement
(collectively, the "Notices") shall be in writing and shall be given either (a)
by personal delivery against a receipted copy, or (b) by certified or registered
U.S. mail, return receipt requested, postage prepaid, to the following
addresses:
If to the Consultant:
PHYSICIAN RESOURCES, INC.
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
If to the Company:
Xxxxx X. Xxxxx, Esq.
Xxxxxxx, Taintor & Xxxxxx, P.A.
00 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
or to such other address of which written notice in accordance with this
Section. 7.2 shall have been provided by such party. Notices may only be given
in the manner hereinabove described in this Section 7.2 and shall be deemed
received when given in such manner.
7.3. Entire Agreement. This Agreement constitutes the full, entire and
integrated agreement between the parties hereto with respect to the subject
matter hereof, and supersedes all prior negotiations, correspondence,
understandings and agreements among the parties hereto respecting the subject
matter hereof.
7.4. Assignability. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other party hereto.
7.5. Severability. Any provision of this Agreement which is held by a
court of competent jurisdiction to be prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability, without
invalidating or rendering unenforceable the remaining provisions of this
Agreement.
7.6. Amendment; Waiver. No provision of this Agreement may be amended,
waived, or otherwise modified without the prior written consent of all of the
parties hereto. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any provision herein
contained. The waiver by any party hereto of a breach of any provision or
condition contained in this Agreement shall not operate or be construed as a
waiver of any subsequent breach or of any other conditions or terms hereof.
7.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
7.8. Applicable Law; Jurisdiction and Venue; Service of Process.
(a) This Agreement was made in the State of Maine, and shall be
governed by, construed, interpreted and enforced in accordance with the laws of
the State of Maine. All suits, proceedings and other actions relating to,
arising out of or in connection with this Agreement shall be submitted to the in
personam jurisdiction of the courts of the State of Maine, and venue for all
such suits, proceedings and other actions shall be in Androscoggin County,
Maine. The Consultant hereby waives any claim against or objection to in
personam jurisdiction and venue in the courts of Androscoggin County, Maine.
(b) The Consultant hereby irrevocably appoints XXXXX X. XXXXX,
ESQ., whose address is 00 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, as its true and
lawful agent to receive service of process in any suit, action or proceeding
against the Consultant relating to, arising out of or in connection with this
Agreement, and hereby consents and agrees that service upon the aforementioned
agent shall be of the same force and validity as if served personally upon the
Consultant.
7.9. Use of Genders. Whenever used in this Agreement, the singular
shall include the plural and vice versa, and the use of any gender shall include
all genders and the neuter.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement under seal, with the intention of making it a sealed instrument, on
the date first above written.
ATTEST: COMPANY:
ACADIA NATIONAL HEALTH
SYSTEMS, INC.
By:
XXXXXXXXX X. XXXXX, XXXXXX X. XXXXXXX,
Secretary President
WITNESS: CONSULTANT:
PHYSICIAN RESOURCES, INC.
By:
Xxxxxx X. Xxxxxxx, Stockholder
By:
Xxxxxxxxx X. Xxxxx, Stockholder
State of Maine
Department of State
I the Secretary of State of Maine, certify that according to the
provisions of the Constitution and Laws of the State of Maine,
the Department of the Secretary of State is the legal custodian
of the Great Seal of the State of Maine which is hereunto affixed
and of the records of organization, amendment, and dissolution
of corporations and annual reports filed by the same.
I further certify that PRI, INC., formerly
PHYSICIAN RESOURCES, INC., is a duly organized business
corporation under the laws of the State of Maine and that the
date of incorporation is 04/03/1992.
I further certify that said business corporation has filed annual
reports due to this Department, and that no action is now
pending by or on behalf of the State of Maine to forfeit the
charter and that according to the records in the Department
of the Secretary of State,, said corporation is a legally existing
business corporation in good standing under the laws of the
State of Maine at the present time.
In testimony whereof, I have caused the Great Seal of the State
of Maine to be hereunto affixed, given under my hand at
Augusta, October 30. 1996.
/s/ Xxxx Xxxxxxx
XXXX XXXXXXX
Secretary of State
Authentication: 17409476
MINUTES OF THE SPECIAL MEETING OF
STOCKHOLDERS OF
PHYSICIAN RESOURCES, INC.
October 16, 1996
Pursuant to written notice to each of the Stockholders, a Special Meeting of
Stockholders of PHYSICIAN RESOURCES, INC. (the Corporation), a Maine
corporation, was held at 00 Xxxx Xxxxxx, Xxxxxx, Xxxxx, xx October 16, 1996, at
9:00 a.m. local time. Xxxxxx X. Xxxxxxx, President of the Corporation, presided.
The President called the meeting to order and the Clerk established proof of
notice to Stockholders and presented a copy of the notice sent to each. The
Clerk confirmed that the notice had been timely mailed.
The Clerk announced that there was represented at the meeting in person or by
proxy the following shares:
XXXXXX X. XXXXXXX
(shares being a majority of the issued and outstanding capital stock of the
Corporation.)
XXXXXXXXX X. XXXXX
The Clerk announced that there was a quorum present, and that all the stock
represented at the meeting was qualified to vote.
The President then announced that the purpose of the meeting was to consider
and vote upon the Transfer of the Assets of the Corporation in exchange for
capital stock of Acadia National Health Systems, Inc. (hereinafter referred to
as "Acadia").
Upon motion made, duly seconded and passed by the vote of ninety-three (93)
shares, being the entire amount of stock represented at the meting and
constituting a majority of the issued and outstanding capital stock of the
Corporation, it was
RESOLVED: That the transfer of assets of the Corporation on substantially the
terms and conditions as set forth in the form of the Agreement for Purchase and
Sale of Assets of the Corporation, attached hereto and incorporated by reference
herein, be and the same is hereby approved.
RESOLVED: That the President of the Corporation is hereby authorized and
directed to execute and deliver the Agreement for Purchase and Sale of Assets in
substantially the form attached hereto and incorporated by reference herein, and
the proper officers of the Corporation be and they are hereby authorized to take
any and all action to execute, acknowledge, seal, file and perform any and all
instruments, documents and actions deemed necessary or proper in
connection therewith or to complete the transactions contemplated therein.
There being no further business, the Special Meeting of Stockholders was, upon
motion, adjourned.
/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Clerk
PHYSICIAN RESOURCES, INC.
Written Consent of the Board of Directors
Recommending the Transfer of Assets
October 9, 1996
The undersigned, constituting all of the Directors of PHYSICIAN RESOURCES,
INC., a Maine corporation (hereinafter referred to as the "Corporation"), in
accordance with Section 712 of the Maine Business Corporation Act, do hereby
take the actions below set forth, and to evidence their waiver of any right to
dissent from such actions, do hereby consent as follows:
RESOLVED: That the transfer of assets of the Corporation on substantially the
terms and conditions as set forth in the proposed Agreement for Purchase and
Sale of Assets attached hereto and incorporated by reference herein, be and the
same is hereby approved.
RESOLVED: That the Agreement for Purchase and Sale of Assets be submitted for
consideration by all of the stockholders entitled to vote thereon at a special
meeting of such stockholders at 9:00 Wednesday, October 16, 1996, at the office
of the Clerk at 00 Xxxx Xxxxxx, Xxxxxx, Xxxxx.
RESOLVED: That the proper officers of the Corporation be and they are hereby
authorized and directed in the name and on behalf of the Corporation to execute,
acknowledge, seal and deliver the Agreement for Purchase and Sale of Assets to
the other parties thereto following the due approval thereof by the stockholders
of the Corporation, and to take any and all other actions and to execute,
acknowledge, seal and file any and all instruments and documents deemed
necessary or proper in connection therewith.
This Written Action of Directors may be executed in counterparts.
WITNESS the execution hereof the day and year first above written.
BOARD OF DIRECTORS:
/s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
/s/Xxxxxxxxx X. Xxxxx
XXXXXXXXX X. MANGO
Xxxxx X. Xxxxx
October 1, 1996
Acadia National Health Systems, Inc.
000 Xxxx Xx.
Xxxxxxxx, XX 00000
RE: Physician Resources, Inc.
Gentlemen:
We are counsel to Physician Resources, Inc., a Maine corporation
(hereinafter referred to as the "Corporation") We have recently represented
the Corporation in connection with certain transactions which are closing,
and you have asked for our opinion with respect to certain Corporate matters.
We have examined either original, certified copies, or copies otherwise
authenticated to our satisfaction of the following:
(1) The Corporation's Certificate of Good Standing dated October 30,
1996, issued by the Maine Secretary of State;
(2) The Corporation's corporate record book;
(3) The written action of directors of the Corporation dated October 9,
1996;
(4) The Minutes of Special Meeting of Stockholders dated October 16,
1996; and
(5) The Assets Purchase Agreement dated September 25, 1996.
Based upon the foregoing, we are of the opinion that:
(a) The Corporation is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maine, and has full
corporate power and authority to own and use Corporation's properties and
carry on Corporation's business as being conducted immediately prior to the
Closing Date;
(b) The majority of the authorized and outstanding common stock is
owned by Xxxxxx X. Xxxxxxx and Xxxxxxxxx X. Xxxxx; and
(c) The Agreement and the consummation of the transactions
contemplated thereby have been duly authorized by the Board of Directors
and by the Shareholders and the Agreement has been duly executed and
delivered by the Corporation and the Shareholders.
The opinions set forth above are subject to the following
limitations and qualifications:
(a) We express no opinion with respect to title to any property or
interest purported to be conveyed by any of the documents executed by
the Corporation in connection with this transaction (the "Documents"),
or the validity, binding effect and enforceability of the Documents.
(b) We are not admitted to practice in any jurisdiction other than
the State of Maine. Accordingly, we express no opinion as to the laws
of any State or jurisdiction other than those of the State of Maine.
This opinion is rendered solely for your benefit in connection
with the transaction described herein and may not be furnished to
or relied upon any other party or entity for any purpose without our
prior written consent. This opinion has been furnished to you at your
request and at the instruction of and with authorization from our client
in connection with the transaction referred above.
Very truly yours,
Xxxxx X. Xxxxx
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS,
That PHYSICIAN RESOURCES, INC., a Maine business
corporation ("Seller"), in consideration of 300,000 shares
of the common capital stock of Acadia National Health
Systems, Inc. ("Purchaser") and other valuable
consideration, the receipt whereof is hereby acknowledged,
does hereby grant, sell, transfer and deliver unto the said
Purchaser, the following goods and chattels, namely: all of
Seller's Equipment, Fixed Assets, Accounts Receivable,
Inventory, Cash, Customer Lists, and Records, and Seller's
goodwill, and all Seller's other assets, as those terms are
defined and described in that certain Assets Purchase
Agreement between the Purchaser and the Seller dated
September 25, 1996, collectively referred to herein as "the
Assets."
TO HAVE AND TO HOLD, all and singular the said Assets to
the Purchaser, its successors and assigns, to their own use
and behoof forever.
AND Seller does hereby covenant with the Purchaser that
it is the lawful owner of said Assets; that they are free
from all encumbrances other than those encumbrances which
the Purchaser has expressly agreed to assume; that it has
good right to sell the same as aforesaid; and that it will
warrant and defend the same unto the said Purchaser, its
successors and assigns, against the lawful claims and
demands of all persons.
IN WITNESS WHEREOF, the Seller, has caused this
instrument to be signed and sealed this 27th day of September,
1996, by Xxxxxx X. Xxxxxxx, its President, duly authorized
thereunto.
SIGNED AND SEALED IN THE
PRESENCE OF
PHYSICIAN RESOURCES, INC.
/s/ Mala A Vandal /s/Xxxxxx X. Xxxxxxx
By:
Witness Xxxxxx X. Xxxxxxx, President
STATE OF MAINE
ANDROSCOGGIN, SS.
The foregoing instrument was acknowledged before me this St.
day of November, 1996, by Xxxxxx X. Xxxxxxx, President of
Physician Resources, Inc., on behalf of the corporation.
/s/ Xxxxx X. Xxxxx
Notary Public
Xxxxx X. Xxxxx
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