EXHIBIT 2.1
ASSET PURCHASE AGREEMENT BY AND BETWEEN
RTIN HOLDINGS, INC. ("BUYER") AND
ADVANCED PHARMACY SOLUTIONS, LLC. ("SELLER")
This Agreement is entered into by and between BUYER, a Texas
corporation, with its principal place of business in Longview, Xxxxx County,
Texas, and SELLER, an Oklahoma limited liability corporation, with its principal
place of business in Oklahoma City, Oklahoma, on this 5th day of December, 2003.
WHEREAS, SELLER currently owns and operates a business that contracts
with mental health clinics to provide all of their prescription drug needs
including Medicaid patients, third party pay patients and indigent patients; and
WHEREAS, SELLER operates pharmacies in Colorado, Oklahoma and
Mississippi, with the Oklahoma pharmacy operating as a "central fill" pharmacy
and ships prescription drugs into Virginia and Arkansas; and
WHEREAS, SELLER owns 100% of the tangible and intangible Assets of the
business which SELLER wishes to sell; and
WHEREAS, BUYER desires to purchase all of the tangible and intangible
Assets of SELLER, free and clear of any and all liabilities unless expressly
assumed, and the rights to operate pharmacies in existing locations/states as
well as locations throughout the United States and abroad; and
WHEREAS, SELLER and BUYER deem it is in the best interest of both
Parties for SELLER to sell and BUYER to purchase all of the Assets of SELLER.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and subject to the covenants set forth below, the parties agree
as follows:
1. Description of Assets
1.1 Subject to Section 1.2 below, the Assets (the "Assets") of the SELLER
which are the subject of this transaction and consist of all Assets
listed on the attached Exhibit "A".
1.2 Notwithstanding anything to the contrary in Section 1.1, the Assets
exclude accounts receivable, reimbursements, cash, short-term
investments or other cash equivalents due to SELLER under the Patient
Assistance Program which is in the current approximate amount of $2.2
million.
1
2. Purchase Price, Prorations and Related Agreements
2.1 Except as otherwise provided on Exhibit "B", at the closing, SELLER
agrees to assign, transfer and convey the Assets to BUYER and to
execute and deliver to BUYER all titles, bills of sale, deeds,
assignments and any other documents necessary to fully transfer to
BUYER good and marketable title, free and clear of liens or
encumbrances, to and the right to use the Assets transferred and other
closing documents required by this Agreement. BUYER agrees to pay a
total purchase price calculated as set forth in Section 2.2 below.
2.2 The purchase price to be paid by BUYER shall be 895,455 shares of RTIN
Holdings, Inc. common stock ("the RTIN shares"). The RTIN shares shall
be common shares of registered stock pursuant to a registration
statement to be filed no later than fifteen (15) days after the Closing
Date until the RTIN Shares shall become registered, pursuant to the
terms and conditions of the Registration Rights Agreement executed of
even date herewith, the RTIN Shares will be restricted shares.
The term "restricted shares" when used in this Agreement shall be
defined as: The restrictions imposed pursuant to Rule 144 of the
Securities Act of 1933, as amended. Each certificate representing the
RTIN Holdings, Inc. restricted stock will bear the following legend
substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE MORTGAGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES
ACT OF 1933 OR AN OPINION OF COUNSEL FOR THE CORPORATION THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
Any shares of stock herein referred to and designated as "restricted
shares" shall mean that any transfer, sale and ownership of such shares
are expressly subject to the limitations and restrictions imposed by
Rule 144 of the Federal Securities Act of 1933 as the same may be
amended from time to time.
BUYER agrees that should SELLER, at any time, subject only to its
restricted terms, choose to sell its RTIN Shares referenced in 2.2 (c)
when the market price as determined by the Stock Exchange upon which
RTIN Holdings, Inc. shares are publicly traded (the "Market Price") is
less that $2.00 per share, RTIN Holdings, Inc. agrees and obligates
itself to pay to SELLER a sum equal to the difference between the net
market price per share, after payment of standard or discounted
commissions and transaction fees (not to exceed $.10 in the aggregate)
and $2.00 per share for all of such shares then sold by SELLER.
2
2.3 As additional consideration for the purchase of SELLER's Assets by
BUYER, BUYER agrees to assume SELLER's liability to Amerisourcebergen
Drug Corporation ("ADC"), which amount is estimated to be One Million
Dollars ($1,000,000), payable by SELLER that are personally guaranteed
by Xxxxxxx Xxxxx. The parties hereby acknowledge Xxxxxxx Xxxxx is to be
fully and unconditionally released from his personal guarantee, subject
to approval by ADC, on such obligation and that ADC shall execute any
and all documents necessary to effect such release, should such release
eventually be approved by ADC. Notwithstanding the foregoing, the
parties hereto agree that BUYER, and BUYER'S successors and assigns
shall hold SELLER and Xxxxxxx Xxxxx harmless from and pay any loss,
damage, cost or expense (including, without limitation, legal fees and
court costs) which SELLER incurs by reason of ADC's failure to release
Xxxxxxx Xxxxx from any and all liability on said obligation. No other
liabilities, debts or accounts payable of SELLER or any parent or
subsidiary or any officer, director, employee or representative of
SELLER are assumed by BUYER.
2.4 Intentionally blank.
2.5 Intentionally blank.
2.6 The following items shall be prorated or adjusted, as of the close of
business on the date of Closing:
a. Employee Compensation: SELLER agrees to pay any and all
compensation and amounts due to and including the Closing
date, to SELLER'S employees, and shall thereafter remit all
sums due to governmental entities or any other parties and
arising out of such employment through the Closing date
including, without limitation, salaries, social security
taxes, bonuses, earned and accrued vacation per schedule
prepared by SELLER and reviewed by BUYER, group medical and
life insurance. The employees for SELLER will be terminated by
SELLER on the day of Closing. BUYER may choose to hire some or
all previous employees of SELLER. BUYER shall not have any
responsibility or obligation to previous employees of SELLER
with respect to any pension plan that may have been provided
by SELLER; nor does BUYER have any obligation to provide a
pension plan for the benefit of previous employees of SELLER.
b. Consulting: Xxxxxxx Xxxxx will provide consulting services to
the BUYER to assist in the transition of the Assets of the
business for a period of 30 days without pay. Such consulting
services shall not require more than 10 hours of consultation
time per week and such can be done telephonically.
c. Taxes and Assessments: Personal property taxes will be
prorated between the parties based on the number of days the
property is owned by each party during the tax year covering
the date of closing.
3
d. Utilities: All utilities owed by the business shall be charged
to and paid by SELLER to and including the Closing date.
Billing accounts shall be changed from SELLER to BUYER the day
after Closing and SELLER shall fully cooperate with BUYER in
changing such accounts.
e. Rental Payments: Payment for rent on the office spaces under
lease by SELLER shall be prorated to the date of Closing and
shall be reimbursed to SELLER at closing. SELLER shall provide
to BUYER copies of all leases of the business.
2.7 Subject to the prorations, if any, called for by Section 2.6, BUYER
agrees to assume only the SELLER's obligations which are specifically
assumed herein and/or that arise after the closing date. Such
assumptions include, but may not be limited to, any leases that are in
effect as of the date of closing. In addition to any other indemnity
agreements provided herein below, SELLER shall indemnify and hold BUYER
harmless from any liability, cost, expense or demand relating to
assessment, payment and/or collection of taxes, federal and state, of
and against SELLER, its Assets and properties including inventory and
equipment for all periods prior to the date of closing.
2.8 At the closing, BUYER and Advanced Pharmacies Marketing, Inc., an
Arkansas corporation will enter into a written Sales Management
Agreement in the form attached hereto as Exhibit "C".
2.9 At the closing, the following individuals who are officers, directors,
employees or representatives of SELLER shall sign and enter into a
non-compete agreement in the form attached hereto as Exhibit "D":
Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx
3. Closing, Resolution of Closing Conditions and Termination Rights
3.1 The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place in Longview, Xxxxx County, Texas, on
December 5, 2003, at the offices of Harbour, Xxxxx, Xxxxxx & Xxxxxxx at
10:00 o'clock a.m. In the event all conditions to the closing have not
been materially satisfied, such closing shall take place not later than
ten days following the satisfaction of all conditions necessary for
closing.
3.2 Either of the parties may terminate this Agreement if the closing has
not occurred by _________________, 2004 provided that the party
proposing such termination is not in default of any covenant contained
in this Agreement and that such termination shall not relieve any party
in breach of any obligation under this Agreement from liability for
such breach.
4. Representation and Warranties of SELLER
4.1 SELLER represents and warrants to BUYER as follows:
4
(a) SELLER is duly incorporated and validly existing under the
laws of the State of Oklahoma;
(b) SELLER has the corporate power and authority to execute,
deliver and perform this Agreement and any other agreement or
document executed by either of them under or in connection
with this Agreement;
(c) SELLER has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement and
any such other agreement or document. This Agreement
constitutes, and any such other agreement or document when
executed will constitute, the legal, valid and binding
obligations of SELLER enforceable against SELLER and in
accordance with their respective terms.
(d) To Seller's knowledge, neither the execution nor delivery of
this Agreement nor the transactions contemplated herein, nor
compliance with the terms and conditions of this agreement
will:
[i] contravene any provision of law or any statute,
decree, rule or regulation binding upon SELLER or
contravene any judgment, decree, franchise, order or
permit applicable to SELLER; or
[ii] conflict with or result in any breach of any terms,
covenants, conditions or provisions of, or constitute
a default (with or without the giving of notice or
passage of time or both) under the Articles of
Incorporation or By-Laws or any agreement, except
those listed on Exhibit "B", or other instrument to
which SELLER is a party or by which it is bound, or
result in the creation or imposition of any lien,
security interest, charge or encumbrance upon any of
the Assets, rights, contracts or other property of
the SELLER.
(e) All authorizations, consents or approvals of, or exemptions
required to be obtained by SELLER by any governmental,
judicial or public body or authority required to authorize, or
required in connection with [i] the execution, delivery and
performance of this Agreement by SELLER, or [ii] any of the
transactions contemplated by this Agreement, or [iii] any of
the certificates, instruments or agreements executed by SELLER
in connection with this Agreement, or [iv] the taking of any
action by SELLER have been obtained and are in full force and
effect. Applications have been made to the Drug Enforcement
Agency and the Boards of Pharmacy for approval of the transfer
and/or re-issuance of SELLER's licenses.
5
(f) The unaudited financial statements, including profit and loss
statements for the period ending on the closing date and
balance sheets (the "Financial Statements") present fairly, in
the case of the profit and loss statements, the results of
operations for the one-year and monthly periods then ended,
and in the case of the balance sheets, the financial condition
at same dates. As of said dates, SELLER did not have any
liabilities (contingent or otherwise) or Assets which are not
disclosed in the Financial Statements or, in the case of
liabilities, reserved against therein or otherwise disclosed
in writing. The Financial Statements have been prepared in
accordance with generally accepted accounting principles and
practices in the United States consistently applied. SELLER
affirms that since the dates of the Financial Statements, [i]
there have been no adverse changes in the business or
financial condition of SELLER, and SELLER has conducted its
business in accordance with its normal and past practices,
[ii] SELLER has not incurred any additional obligations or
liabilities except trade debts in the ordinary course of
business, [iii] SELLER has not declared or paid any dividend
or made or agreed to make any other distribution or payment in
respect to any of its shares or otherwise to any of its
shareholders, and [iv] SELLER has not purchased or redeemed or
agreed to purchase or redeem any of its shares. BUYER affirms
that it has had the opportunity to review the Financial
Statements and upon the assumption that such is true, accurate
and reflective of the financial condition of SELLER accepts
the same as being satisfactory.
SELLER has filed all tax returns which it has been required to
file and has paid all taxes and interest and penalties, if
any, which it has been required to pay other than as disclosed
in writing to BUYER.
Apart from the Assets set forth in the Financial Statements,
SELLER has no Assets, rights or other property, and no other
Asset right or property is required or advisable for SELLER to
conduct any of its business or activities.
(g) To SELLER's knowledge, neither any of SELLER's Assets nor the
use of any of them [i] violates or infringes any contract,
copyright, trademark, service xxxx, right of privacy, patent
or other right, or [ii] contains any material which SELLER is
not duly authorized to use, or [iii] misuses or
misappropriates any trade secret or confidential or
proprietary information.
(h) Except as set forth in Exhibit "E", SELLER has no current
litigation or arbitration to which the SELLER is a party.
There is no litigation or arbitration or administrative
proceeding or claim asserted, pending or threatened respecting
or involving the SELLER, the business of SELLER or any of the
SELLER's Assets other than those listed on Exhibit "E".
(i) SELLER is under no orders, writs, injunctions or decrees of
any court, government or governmental agency or any
arbitration award affecting the SELLER, or the business of the
SELLER. To SELLER'S knowledge, there are no orders, writs,
injunctions or decrees of any court, government or
governmental agency or any arbitration award affecting the
SELLER, the business of SELLER or any of the SELLER's Assets
or other Assets of the SELLER. To SELLER'S knowledge, the
SELLER and its Assets and operations are in compliance with
all applicable laws, rules, regulations and ordinances.
6
(j) SELLER is the sole owner of the Assets of SELLER and of all
rights in and to the Assets; except as set forth in Exhibit
"B" there are no UCC's, liens, security interest, restrictions
or other encumbrances on the SELLER's Assets, and SELLER,
except as set forth on Exhibit "B", may sell the Assets to
BUYER pursuant to this Agreement without the consent or
approval of any person, corporation, partnership, governmental
authority or other entity; except as set forth in Exhibit "B"
SELLER will deliver good and marketable title to the Assets
and SELLER has not sold, transferred or assigned any of its
rights in and to any of the Assets; except as set forth in
Exhibit "B" the Assets are free and clear of any liens,
claims, encumbrances and restrictions of any kind. SELLER has
no liabilities or obligations of any nature that adversely
affect the Assets other than those set forth on Exhibit "B". -
(k) SELLER is in the process of confirming its status as a Small
Business Corporation pursuant to Section 1362 of the Code.
With the exception of receiving such confirmation from the
Internal Revenue Service, SELLER has complied with all
federal, state and local governmental requirements relating to
the filing of income tax returns, or property tax returns. All
outstanding tax liabilities, including penalties and interest,
if any, of any federal, state and local governmental
authorities will be paid. SELLER will prepare a tax estimate
for taxes accrued but not yet due as of the Closing date and
SELLER shall make estimated tax payments to the appropriate
authorities or credit BUYER for the estimated amounts. If,
despite any required deposits, taxes are due to any
governmental entity for activities or revenues of the business
for periods prior to closing, SELLER shall pay such taxes
within 15 days of its receipt of notice from BUYER indicating
that taxes are owed. BUYER shall submit with its notice
evidence of the taxes due.
(l) SELLER makes no representation or warranty, express or
implied, with respect to the condition or state of repair of
the assets, including without limitation, any implied
warranties of merchantability or fitness for a particular
purpose; provided however, the inventory items included in
this sale are, in all material respects, in good and saleable
condition. In reasonable business judgment of Seller, the
Assets comprise all material assets necessary to conduct the
Business as presently conducted by Seller.
5. Representations and Warranties of BUYER
5.1 BUYER represents and warrants to SELLER as follows.
(a) BUYER is duly incorporated and validly existing under the laws
of Texas; BUYER has the corporate power and authority to
execute, deliver and perform this Agreement and any other
agreement or document in connection with this Agreement; and
BUYER has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement and
any such other agreement or document. This Agreement
constitutes, and any such other agreement or document when
executed will constitute, the legal, valid and binding
obligations of BUYER enforceable against BUYER in accordance
with their respective terms.
7
(b) Neither the execution nor delivery of this Agreement nor the
transactions contemplated herein, nor compliance with the
terms and conditions of this Agreement will:
[i] contravene any provision of law or any statute,
decree, rule or regulation binding upon BUYER or
contravene any judgment, decree, franchise, order or
permit applicable to BUYER; or
[ii] conflict with or result in any breach of any terms,
covenants, conditions or provisions of, or constitute
a default (with or without the giving of notice or
passage of time or both) under the Articles of
Incorporation or By-Laws of the BUYER or any
agreement or other instrument to which BUYER is a
party or by which either is bound, or result in the
creation or imposition of any lien, security
interest, charge or encumbrance upon any of the
Assets, rights, contracts or other property of the
BUYER.
(c) All authorizations, consents or approvals of, or exemptions
by, any governmental, judicial or public body or authority
required to authorize, or required in connection with (i) the
execution, delivery and performance of this Agreement by
BUYER, or (ii) any of the transactions contemplated by this
Agreement, or (iii) any of the certificates, instruments or
agreements executed by BUYER in connection with this
Agreement, or (iv) the taking of any action by BUYER, have
been or at the Closing will have been obtained and at the
Closing will be in full force and effect.
(d) The RTIN Shares that BUYER issues to SELLER in accordance with
Section 2.2 at the Closing, shall be duly and validly issued,
fully paid and non-assessable, free of preemptive rights and
free of all other restrictions on transfer except those
imposed by applicable federal and state securities laws or
otherwise disclosed in writing to SELLER. The RTIN Shares are
being issued pursuant to a valid registration statement to be
filed no later than fifteen (15) days after the Closing Date.
Notwithstanding the foregoing, and until the RTIN Shares
become registered, the RTIN Shares are being issued as of the
date hereof to SELLER pursuant to an exemption from
registration under Section 4(2) of the Securities Act of 1933
and Regulation D promulgated thereunder.
(e) BUYER is knowledgeable and experienced in making investment
decisions and is able to bear the economic risk of loss of its
investment in the Assets of SELLER, except to the extent that
such loss is the result of a material misrepresentation or
breach by SELLER.
8
(f) BUYER'S common stock is traded on the OTC BB. No circumstances
exist, to BUYER's knowledge, that could reasonably be expected
to result in BUYER's being ineligible for trading on the OTC
BB as of the Closing.
(g) BUYER acknowledges that (i) it has inspected the Assets and
agrees to accept the Assets in their "AS IS" condition and
state of repair and (ii) SELLER has made no representation or
warranty, express or implied, with respect to the condition or
state of repair of any of the Assets.
6. Indemnities
6.1 The representations and warranties of the SELLER and BUYER will be
deemed made on execution of this Agreement and at the Closing, and all
of those representations and warranties and all of the covenants and
obligations of the parties under this Agreement will survive the
Closing for a period of one (1) year except for fraud, which shall
survive until the applicable statute of limitations has expired.
6.2 BUYER will hold SELLER harmless from and pay any loss, damage, cost or
expense (including, without limitation, legal fees and court costs)
which SELLER incurs by reason of any representation or warranty of
BUYER being incorrect or by reason of any breach by BUYER of any of its
covenants or obligations under this Agreement.
6.3 SELLER will hold BUYER harmless from and pay any loss, damage, cost or
expense (including, without limitation, legal fees and court costs)
which BUYER incurs by reason of any representation or warranty of
SELLER being incorrect or by reason of any breach by SELLER of any of
its covenants or obligations under this Agreement.
6.4 BUYER acknowledges that SELLER has represented to it that there is
approximately $1 million owed by SELLER and guaranteed by Xxxxxxx Xxxxx
in the aggregate to third party creditors ("the Indebtedness"). BUYER
has agreed to assume certain indebtedness pursuant to Paragraph 2.3 of
the Agreement, that is personally guaranteed by Xxxxxxx Xxxxx. The
third party creditors to which this indebtedness is owed are listed on
Exhibit "F". BUYER shall have no obligation to assume or pay any
indebtedness of SELLER other than the indebtedness specified in
Paragraph 2.3 of this Agreement.
9
6.5 The parties will hold each other harmless, defend and indemnify each
other from any loss, damage, cost or expense (including, without
limitation, legal fees and court costs) from any claim for commissions,
transaction fees and brokerage fees arising, directly or indirectly, to
the transaction made the subject of this Agreement and SELLER expressly
warrants and represents that there are no commissions, transaction
fees, brokerage fees or other fees due and owing or which may become
due and owing as the result of any relationship, agreement or
understanding between SELLER and a third party.
6.6 The rights and remedies of the parties under this Section 6 are in
addition to and not by the way of limitation upon any other rights and
remedies. The rights and remedies of the parties are cumulative, but a
party will not be entitled to incidental or consequential damages or
loss of profits.
6.7 SELLER shall hold harmless and indemnify BUYER from any and all
liabilities and claims whatsoever which relate to the business prior to
closing or which relate to the sale and purchase of the Assets and hold
BUYER harmless for costs and expenses, including reasonable attorney
fees relating thereto. In the event any claim or liability for which
SELLER may be responsible under this section is made known to BUYER,
BUYER shall promptly notify SELLER of such claim or liability and allow
SELLER the opportunity to object to and/or defend against such claim or
liability. Except with respect to matters constituting fraud or
intentional or willful breach or misrepresentation, SELLER shall not be
required to provide indemnification hereunder unless:
(i) the claim, together with all other claims previously made,
if any, exceeds Five Thousand Dollars ($5,000); and
(ii) written notice of such claim for indemnification is given
to the other party hereto within one (1) year following the Closing
Date.
7. Transactions Completed at Closing
7.1 The following requirements will be completed or satisfied, as the case
may be, at the Closing.
(a) SELLER delivers to BUYER an Omnibus Xxxx of Sale covering all
Assets.
(b) BUYER will deliver to SELLER a Registration Rights Agreement
with respect to the RTIN shares.
10
(c) SELLER will deliver a Resolution of the Board of Directors of
SELLER which approves the sell of the Assets to BUYER.
(d) SELLER will deliver to BUYER a Marketing Agreement allowing
BUYER to operate the business of SELLER in the name of SELLER
until the appropriate federal and state licensing requirements
are met.
(e) SELLER and its officers, directors, employees and
representatives will deliver to BUYER a signed non-compete
agreement in the form attached hereto as Exhibit "D".
(f) Within four (4) business days of the Closing, BUYER, or its
transfer agent, delivers to SELLER the certificates for
restricted shares representing the RTIN Shares, registered in
the name of Xxxxxxx Xxxxx.
(g) SELLER certifies that the officers and directors of the
Companies are as follows:
Chairman: Xxxx Xxxxxxx
President: Xxxxxxx Xxxxx
Secretary: Xxxxx Xxxxxxxxxx
VP Marketing/GM: Will Xxxxxxxxxx
(h) The BUYER will be furnished with resignations by all current
officers and directors of the SELLER.
(i) The parties furnish each other with certificates by one of
their officers or directors (i) certifying the adoption by
their directors and, if necessary, by their shareholders, of
resolutions authorizing the execution, delivery and
performance of this Agreement and any other agreements and
documents in connection herewith, and (ii) also certifying the
names, positions and signatures of the persons authorized to
sign on their behalf.
(j) SELLER will furnish to BUYER certificates of the appropriate
governmental authority in Oklahoma, Colorado, Mississippi,
Arkansas and Virginia, as the case may be, dated within five
(5) days of the Closing confirming that the SELLER is in
existence and in good standing in its respective jurisdictions
("Certificates of Good Standing").
7.2 Except for the Certificates of Good Standing, the agreements,
certificates, consents and other documents to be executed and delivered
at the Closing shall be dated the date of the Closing.
7.3 BUYER shall notify the applicable governing authorities concerning this
transaction within the applicable periods provided by law. SELLER shall
comply with all reasonable requests by BUYER to assist in the
notification of the governing authorities and transfer of licenses, if
applicable.
11
7.4 Completion or satisfaction, as the case may be, of all of the
requirements under Section 7 (including the correctness of the
statements in the certificates and other documents delivered) are
conditions precedent to completing the Closing under this Agreement. No
part of the Closing under this Agreement will be deemed completed
unless all requirements under this Agreement shall have been completed
or satisfied.
8. Right of Offset
8.1 Except as set forth in Exhibit "B", it is understood and agreed that
BUYER expects to receive possession and control of the Assets free and
clear of any debts and encumbrances, claims of state and federal taxes,
liens, leases, or claims of any other party except as set for herein.
If, and in the event after Closing, BUYER shall become aware of any
claim, tax, lien, lease or debt against the Assets of the business
purchased by BUYER, not disclosed by SELLER in writing and assumed by
BUYER in writing at the time of Closing, and said debts, claim or taxes
adversely affect the Assets purchased by BUYER, BUYER shall promptly
notify SELLER in writing of such claim(s). In the event SELLER does not
cure default or has not paid such valid claim(s) within the twenty (20)
days following receipt of such notice from BUYER, or notify BUYER in
writing that such claim(s) is in dispute and begun to resolve the
dispute, then, and in the event, BUYER may pay the same and deduct the
amount of debt or default from any monies due and owing to SELLER under
this Agreement.
9. Governing Law
This Agreement will be governed by and construed in accordance with the
laws of Texas. Venue shall lie solely in a state court in and for Xxxxx
County, Texas.
10. Amendment and Waiver
10.1 This Agreement may not be amended or terminated except by an instrument
in writing signed by all of the parties hereto or upon material breach
with remedies stated therefor.
10.2 No provision of this Agreement and no right or obligation under this
Agreement may be waived except by an instrument in writing signed by
the party waiving the provision, right or obligation in question.
11. Assignment
12
No party may transfer or assign any of its rights or obligations under
this Agreement and any attempt thereat shall be null and void.
12. Notices
12.1 Any notice, request, demand, waiver, consent, approval, or other
communication which is required or permitted to be given to any party
under this Agreement shall be in writing and shall be given to that
party with copy at the addresses or fax numbers set forth below or, in
the event of a change in any address or fax number, then to such other
address or fax number as to which notice of the change is given:
(a) If to SELLER:
Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy to (which shall not constitute notice):
Xxx Xxxxx or Xxxxx Xxxxxx
Friday, Xxxxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
(b) If to BUYER:
RTIN Holdings, Inc.
000 X. Xxxx 000, Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxx X. Xxxxx
P. O. Drawer 2072
Xxxxxxxx, Xxxxx 00000
Fax No. (000) 000 0000
12.2 Notice shall be deemed given on receipt.
13
13. Section Headings
Section headings are for convenient reference only and shall not affect
the meaning or have any bearing on the interpretation of any provision
of this Agreement.
14. Severability
If any provision of this Agreement is held invalid under applicable
law, such provision will be deemed ineffective to the extent of such
invalidity, and such invalid provision will be modified to the extent
necessary to make it valid and enforceable. Any such invalidity will
not invalidate the remainder of this Agreement to the extent that such
remainder does not result in an unjust hardship or an inequitable
hardship on one or both of the parties.
15. Interpretation
Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved against BUYER and SELLER, whether under any rule
of construction or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted
according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of all parties hereto.
16. Counterparts
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same
Agreement.
17. Separate Counsel
The Parties acknowledge and agree that with respect to the agreements
contained in this Agreement, each such party is relying solely on its
own legal counsel and not on any advice, statements or representations
of the other party's counsel.
18. Attorney's Fees
In the event either party retains an attorney to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to
the award of its attorney's fees incurred in connection therewith.
14
19. Entire Agreement
SELLER and BUYER acknowledge that this Agreement and the documents
referred to herein constitute the entire agreement by and between the
Parties and no other documents and/or writings are relied upon by the
Parties hereto.
20. Execution by Facsimile
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier or facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement.
21. Incorporation by Reference
All Exhibits and documents referred to in the Agreement shall be deemed
incorporated herein by any reference thereto as if fully set out.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Advanced Pharmacy Solutions, LLC.
By:_____________________________
Xxxxxxx Xxxxx, President
RTIN Holdings, Inc.
By:_____________________________
Xxxxxx Xxxxxxx, President
16
RESOLUTION OF BOARD OF DIRECTORS OF
RTIN HOLDINGS, INC.
BE IT RESOLVED that the President of this corporation, Xxxxxx Xxxxxxx,
is hereby authorized and empowered for and on behalf of, and in the name of this
corporation, to execute any and all documents necessary on behalf of this
corporation to effectuate the asset purchase in this corporation of the Advance
Pharmacy Solutions, Inc.
BE IT FURTHER RESOLVED that said officer is further authorized to sign
all papers, documents and acts necessary in order to accomplish the foregoing
purpose, containing such terms as he, in his sole judgment, deems advisable, to
receive and receipt for the proceeds thereof and to do any and all things as
shall, in his sole discretion and judgment, be appropriate and desirable to
accomplish the foregoing, containing such terms as he, in his sole judgment,
deems advisable to accomplish the foregoing.
The above and foregoing constitutes a true and correct copy of
resolutions duly adopted at a meeting of the Board of Directors of said
corporation held on November 4, 2003, at which meeting quorum was present and
voted in favor of said resolutions, and said resolutions have never been
modified and rescinded and are still in full force and effect.
Dated November 4, 2003.
_________________________________
Xxxxxx X. Xxxxxxx Asst. Secretary
XXXX OF SALE
------------
Date: December ____, 2003
Seller: Advanced Pharmacy Solutions, Inc., an Oklahoma corporation
Seller's Mailing
Address: 0000 X. Xxxxxxx, Xxxxx 000X, Xxxxxxxx Xxxx, Xxxxxxxx 00000
Buyer: RTIN Holdings, Inc., a Texas corporation
Buyer's Mailing
Address: 000 X. Xxxx 000, Xxxxx 000, Xxxxxxxx, Xxxxx 00000
Consideration: Ten and No/100 Dollars ($10.00) and other good and valuable
consideration paid and to be paid, the receipt and sufficiency
of which is hereby acknowledged
Personal Property:
(a) All pharmaceutical drug inventory owned by Seller and situated in and
upon the premises of each of the businesses operated by Seller and
located in Oklahoma, Colorado and Mississippi;
(b) All office equipment used, owned and held by Seller in its business and
more particularly described on Exhibit "A" attached hereto and made a
part hereof;
(c) All miscellaneous equipment and related machines used by Seller in its
pharmacy business located in Oklahoma, Colorado and Mississippi.
For value received Seller hereby grants, bargains, sells, assigns,
transfers and delivers the Personal Property to Buyer. Seller warrants and
represents that the Assets will be free and clear of all liens, security
interests, claims, taxes and encumbrances of any nature whatsoever, except as
otherwise disclosed. Seller agrees to defend marketable title to the Personal
Property to Buyer and Buyer's successors and assigns against all lawful claims.
ADVANCED PHARMACY SOLUTIONS, INC. RTIN HOLDINGS, INC.
By __________________________ By __________________________
EXHIBIT A
LIST OF ASSETS
1. Any and all prescription drug inventories.
2. All of Seller's list of customers (and any customer agreements),
together with any new customers accepted between the date of this
agreement and the closing date.
3. The furnishings, fixtures, equipment, computers to support the same,
billing systems, software, equipment used or sold in the normal course
of the business and supplies.
4. All accounts receivable save and except the accounts receivable due to
Seller under the Patients Assistance Program referred to in Paragraph
1.2 of the Asset Purchase Agreement.
5. Goodwill of the business, including the rights to use the name Advanced
Pharmacy Solutions, Inc., logs trademarks, all other trade names and
other similar property without limitation, customer lists, written and
oral, customer contracts/agreements and reputation.
6. All supplier lists, sale records, working files, licenses,
certificates, promotional materials and other similar property and
intellectual rights.
7. All pre-paid and security deposits.
EXHIBIT B
---------
LIEN SEARCH
-----------
The following represents all security interests filed against Seller's
assets:
Document Type: FINANCING STATEMENT - S Description:
Filing Date: 9/6/2001 9:14:00 AM PHARMACY SYSTEM, DELL OPTIPUX GX
Page Count: 2
Debtors Secured Parties
ADVANCED PHARMACY SOLUTIONS LLC XXXXX FARGO FINANCIAL LEASING INC
0000 Xxxxxxxxxxxx, Xxxxx 000X 000 Xxxxxx, 00xx Xxxxx
Xxxxxxxx Xxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Document Type: FINANCING STATEMENT - S Description:
Filing Date: 1/31/2003 10:50:20 AM ALL PROPERTY, EQUIPMENT, MACHINERY,
Page Count: 2 FURNITURE, FURNISHINGS, FIXTURES,
MOTOR VEHICLES, ACCOUNTS, ACCOUNTS
RECEIVABLE, INVENTORY, GOODS,
PROCEEDS.
Debtors Secured Parties
ADVANCED PHARMACY SOLUTIONS LLC XXXXXXX XXXXX
0000 Xxxxxxxxxxxx, Xxxxx 000X 0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Document Type: FINANCING STATEMENT - S Description:
Filing Date: 1/31/2003 10:51:28 AM ALL PROPERTY, EQUIPMENT, MACHINERY,
Page Count: 2 FURNITURE, FURNISHINGS, FIXTURES,
MOTOR VEHICLES, ACCOUNTS, ACCOUNTS
RECEIVABLE, INVENTORY, GENERAL
INTANGIBLES.
Debtors Secured Parties
ADVANCED PHARMACY SOLUTIONS LLC XXXXXXX XXXXX
0000 Xxxxxxxxxxxx, Xxxxx 000X 0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Document Type: FINANCING STATEMENT - S Description:
Filing Date: 1/31/2003 10:50:20 AM ALL GOODS, CHATTELS, MACHINERY,
Page Count: 2 EQUIPMENT, MOTOR VEHICLES,
COMPUTERS, INVENTORY, CHATTEL PAPER
AND GENERAL INTANGIBLES.
Debtors Secured Parties
ADVANCED PHARMACY SOLUTIONS LLC XXXXXX & XXXXXXX CO LTD
0000 Xxxxxxxxxxxx, Xxxxx 000X X.X. Xxx 0000
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Document Type: FINANCING STATEMENT - S Description:
Filing Date: 7/1/2003 4:02:44 PM PROPERTY, RIGHTS, TANGIBLE AND
Page Count: 2 INTANGIBLE, EQUIPMENT, MACHINERY,
FURNITURE, FURNISHINGS, FIXTURES,
MOTOR VEHICLES, PERSONAL PROPERTY,
ADDITIONS, ACCESSIONS, REPLACEMENTS,
SUBSTITUTIONS, ACCOUNTS, CHATTEL
PAPER, DOCUMENTS, INSTRUMENTS,
INVENTORY, CONTRACTS, COPYRIGHTS,
PROCEEDS.
Debtors Secured Parties
ADVANCED PHARMACY SOLUTIONS LLC XXXXXXX XXXXX
0000 Xxxxxxxxxxxx, Xxxxx 000X 0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Document Type: FINANCING STATEMENT - S Description:
Filing Date: 9/24/2003 11:20:04 AM ALL PERSONAL PROPERTY OF DEBTOR
Page Count: 2 INCLUDING ACCOUNTS, CHATTEL PAPER,
INVENTORY, EQUIPMENT, INSTRUMENTS,
INVESTMENTS PROPERTY, DOCUMENTS,
DEPOSIT ACCOUNTS, GENERAL
INTANGIBLES, PRODUCTS AND PROCEEDS.
Debtors Secured Parties
ADVANCED PHARMACY SOLUTIONS LLC AMERISOURCEBERGEN DRUG CORPORATION
0000 Xxxxxxxxxxxx, Xxxxx 000X 0000 Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
ADVANCED PHARMACY SOLUTIONS LLC
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
EXHIBIT C
---------
MARKETING AGREEMENT BY AND BETWEEN
ADVANCED PHARMACY SOLUTIONS, INC.
AND RTIN HOLDINGS, INC.
This Marketing Agreement is entered into this ______ day of December,
2003 by and between Advanced Pharmacy Solutions, Inc. ("APS") and RTIN Holdings,
Inc. ("RTIN").
WHEREAS, APS and RTIN have entered into an Asset Purchase Agreement
whereby RTIN is buying 100% of the tangible and intangible Assets of APS; and
WHEREAS, RTIN will be applying for federal and state licenses with,
among others, the various state licensing boards and the Drug Enforcement
Agency; and
WHEREAS, in order to fully and completely utilize the Assets of the
business purchased by RTIN, it will be necessary for RTIN to market its services
under the APS licenses until the new licensing has been approved; and
WHEREAS, RTIN and APS deem it in the best interest of both parties to
enter into this Marketing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and subject to the covenants set forth below, the parties agree
as follows:
1. Description of Licenses
1.1 APS is the owner of certain licenses, both federal and state, with
various state licensing boards and the Drug Enforcement Agency. The purpose of
these licenses is to operate the business, contract with mental health clinics
and to provide all of the prescription drug needs to the mental health clinics
including Medicaid patients, third party pay patients and indigent patients.
1.2 It will be necessary for RTIN to apply for federal and state
licenses in order to fully utilize and operate the Assets being purchased by
RTIN from APS. Such licensing procedure requires application and approval for
which such application and approval takes a certain period of time before
licenses are issued.
2. Marketing and Use of Licenses
2.1 APS agrees to allow RTIN to utilize its name and licenses in order
to operate and utilize the Assets being purchased by RTIN from APS until such
licenses have been obtained by RTIN as referenced in Paragraph 1.2 above.
3. Fees, Expenses and Indemnity
3.1 During the time period that RTIN markets and utilizes these Assets
under the name APS, RTIN will be responsible for all Assets under the name APS
3.2 RTIN agrees to indemnify and hold harmless APS from all accounts,
expenses or debts incurred by RTIN following the date of this Marketing
Agreement and until the date that licenses are secured by RTIN in order to
operate the business in its own name.
4. Term of Contract
4.1 This Marketing Agreement shall terminate upon the approval of
licenses for RTIN by federal and state authorities in order for RTIN to fully
utilize the Assets it has acquired from APS. RTIN shall give notice of the
approval of licenses as they are acquired to APS.
5. Governing Law
5.1 This Marketing Agreement shall be governed by and construed in
accordance with the laws of the State of Texas. Venue shall lie solely in Xxxxx
County, Texas.
6. Amendment and Waiver
6.1 This Agreement may not be amended or terminated except by an
instrument in writing signed by all of the parties hereto. No provision of this
Agreement and no right or obligation under this Agreement may be waived except
by an instrument in writing signed by the party waiving the provision, right or
obligation in question.
7. Assignment
7.1 No party may transfer or assign any of its rights or obligations
under this Agreement and any attempt thereat shall be null and void.
8. Notices
8.1 Any notice, request, demand, waiver, consent, approval, or other
communication which is required or permitted to be given to any party under this
Agreement shall be in writing and shall be given to that party with copy at the
addresses or fax numbers set forth below or, in the event of a change in any
address or fax number, then to such other address or fax number as to which
notice of the changes is given:
(a) If to APS:
Xxxxx Xxxxx
____________________
____________________
With a copy to (which shall not constitute notice):
Xxx Xxxxx or Xxx Xxxxx
Friday, Xxxxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
(b) If to RTIN:
RTIN Holdings, Inc.
000 X. Xxxx 000, Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxx X. Xxxxx
P. O. Drawer 2072
Xxxxxxxx, Xxxxx 00000
Fax No. (000) 000 0000
9. Section Headings
9.1 Section hearings are for convenient reference only and shall not
affect the meaning or have any bearing on the interpretation of any provision of
this Agreement.
10. Severability
10.1 If any provision of this Agreement is held invalid under
applicable law, such provision will be deemed ineffective to the extent of such
invalidity, and such invalid provision will be modified to the extent necessary
to make it valid and enforceable. Any such invalidity will not invalidate the
remainder of this Agreement.
11. Interpretation
11.1 Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed or resolved against APS or RTIN, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by
all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish the purposes and intentions
of all parties hereto.
12. Counterparts
12.1 This Agreement may be executed in any number of counterparts and
by different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken
togther, shall constitute but one and the same Agreement.
13. Separate Counsel
13.1 RTIN and APS acknowledge and agree that with respect to the
agreements contained in this Agreement, each party is relying solely on its own
legal counsel.
14. Attorney's Fees
14.1 In the event either party retains an attorney to enforce the
provisions of this Agreement, the prevailing party shall be entitled to the
award of its attorney's fees incurred in connection therewith.
15. Entire Agreement
15.1 This Agreement constitutes the entire agreement among the parties
with respect to the matters described herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ADVANCED PHARMACY SOLUTIONS, INC. RTIN HOLDINGS, INC.
By __________________________ By __________________________
EXHIBIT D
---------
COVENANT NOT TO COMPETE
-----------------------
This Covenant Not to Compete is made by and between _________________,
an individual, ADVANCED PHARMACY SOLUTIONS, INC., an Oklahoma corporation
(hereinafter collectively referred to as "Seller"), and RTIN Holdings, Inc., a
Texas corporation (hereinafter referred to as "Buyer").
WHEREAS, on this date Buyer has purchased from Seller the Assets of
Advanced Pharmacy Solutions, Inc.
FOR AND IN CONSIDERATION of the purchase of said Assets, Seller agrees
that it will not at any time within the five (5) years immediately following the
date of this Covenant Not to Compete directly or indirectly engage in, own,
operate, manage, control, be employed by, or have any interest in or be
connected in any manner with any person, firm, corporation or business (whether
as an employee, officer, director, agent, security holder, creditor, consultant
or otherwise) that engages in any way in the providing of prescription drug
needs to mental health clinics including Medicaid patients, third party pay
patients and indigent patients within the States of Oklahoma, Mississippi,
Colorado, Arkansas or Virginia. During the five (5) years following the date
hereof, Seller will not solicit any of Buyer's employees or former employees of
Seller. Seller also agrees that it will not at any time during the non-compete
period (a) induce or otherwise take any actions which may cause any person or
entity who is or was a client or customer of Seller at any time prior to the
date hereof or who is or was a client or customer of Buyer at any time during
such non-compete period, to terminate, alter or reduce such person's or entity's
business with Buyer, or (b) in any other manner, directly or indirectly, divert
business away from Buyer. Notwithstanding the foregoing, if Seller desires to
hire a former employee of the business, Seller shall be required to get Buyer's
consent.
The parties agree that the remedy at law shall be inadequate and that
the injured party shall be irreparably harmed for the breach of this Covenant
Not to Compete and in such event the breaching party agrees than an injunction
shall be entered against them upon the request of the non-defaulting party;
however, the remedies are not limited to an injunction, but to any remedy at law
or equity, and the prevailing party in any litigation shall be entitled to
collect attorneys' fees and costs.
EXECUTED this _____ day of December, 2003.
ADVANCED PHARMACY SOLUTIONS, INC. RTIN HOLDINGS, INC.
By __________________________ By __________________________
COVENANT NOT TO COMPETE
-----------------------
This Covenant Not to Compete is made by and between _________________,
an individual, (hereinafter referred to as "____________"), and RTIN Holdings,
Inc., a Texas corporation (hereinafter referred to as "Buyer").
WHEREAS, on this date Buyer has purchased the Assets of Advanced
Pharmacy Solutions, Inc. (hereinafter referred to as "APS").
FOR AND IN CONSIDERATION of the purchase of said Assets, __________
agrees that he/she will not at any time within the five (5) years immediately
following the date of this Covenant Not to Compete directly or indirectly engage
in, own, operate, manage, control, be employed by, or have any interest in or be
connected in any manner with any person, firm, corporation or business (whether
as an employee, officer, director, agent, security holder, creditor, consultant
or otherwise) that engages in any way in the providing of prescription drug
needs to mental health clinics including Medicaid patients, third party pay
patients and indigent patients within the States of Oklahoma, Mississippi,
Colorado, Arkansas or Virginia. During the five (5) years following the date
hereof, ________ will not solicit any of Buyer's employees or former employees
of APS. _______ also agrees that he/she will not at any time during the
non-compete period (a) induce or otherwise take any actions which may cause any
person or entity who is or was a client or customer of APS at any time prior to
the date hereof or who is or was a client or customer of Buyer at any time
during such non-compete period, to terminate, alter or reduce such person's or
entity's business with Buyer, or (b) in any other manner, directly or
indirectly, divert business away from Buyer. Notwithstanding the foregoing, if
_________ desires to hire a former employee of the business, ________ shall be
required to get Buyer's consent.
The parties agree that the remedy at law shall be inadequate and that
the injured party shall be irreparably harmed for the breach of this Covenant
Not to Compete and in such event the breaching party agrees than an injunction
shall be entered against them upon the request of the non-defaulting party;
however, the remedies are not limited to an injunction, but to any remedy at law
or equity, and the prevailing party in any litigation shall be entitled to
collect attorneys' fees and costs.
EXECUTED this _____ day of December, 2003.
RTIN HOLDINGS, INC.
By __________________________ By __________________________
__________________________ Xxxxxx Xxxxxxx, President
EXHIBIT E
---------
LITIGATION OR ARBITRATION
1. Seller currently has three (3) EEOC claims pending against it.
2. Seller currently is the defendant in one (1) lawsuit filed against it
with respect to the Grand Prairie lease.
3. Seller has been threatened with two (2) lawsuits in Greensboro, North
Carolina involving a lease.
EXHIBIT F
---------
LIST OF CREDITORS FOR WHICH XXXXXXX XXXXX
HAS GUARANTEED THE INDEBTEDNESS
1. Amerisourcebergen Drug Corporation
2. Xxxxxx & Xxxxxxx Co Ltd
