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 ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇ 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.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇, Taintor & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(ii) If to the Majority Stockholders, to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(iii)If to the Purchaser:
Acadia National Health Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇
▇. ▇▇▇▇▇, 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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Secretary President
WITNESS: MAJORITY
STOCKHOLDERS:
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
PURCHASER:
ATTEST: ACADIA NATIONAL
HEALTH
SYSTEMS, INC.
By
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
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 ▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇ 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 ▇ ▇
▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 "▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ Office 05/31/92 $143.00
N S M
5 1 FX ▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
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.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, Taintor & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇ ▇.
▇▇▇▇▇, ESQ., whose address is ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Secretary President
WITNESS: CONSULTANT:
PHYSICIAN RESOURCES, INC.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Stockholder
By:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
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/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ October
16, 1996, at 9:00 a.m. local time. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(shares being a majority of the issued and outstanding capital
stock of the
Corporation.)
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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/▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, 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 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. MANGO
▇▇▇▇▇ ▇. ▇▇▇▇▇
October 1, 1996
Acadia National Health Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; 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,
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President, duly authorized
thereunto.
SIGNED AND SEALED IN THE
PRESENCE OF
PHYSICIAN RESOURCES, INC.
/s/ Mala A Vandal /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
Witness ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
STATE OF MAINE
ANDROSCOGGIN, SS.
The foregoing instrument was acknowledged before me this
1st. day of November, 1996, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President of
Physician Resources, Inc., on behalf of the corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇
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