PURCHASE AGREEMENT
AGREEMENT made the 24th day of July, 1998 between ▇▇▇▇▇▇ Drug
Corporation, a Texas Corporation ("Seller"), and HORIZON Pharmacies,
Inc., a Delaware Corporation ("Buyer").
W I T N E S S E T H
WHEREAS, Seller operates a retail pharmacy doing business as
Interurban Pharmacy, (the Drug Store") located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Retail Location").
WHEREAS, Seller desires to sell to Buyer and Buyer desires to
purchase certain assets utilized in connection with and as part of
Seller's operation of the Drug Store upon the terms and conditions
stated herein:
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. SALE OF ASSETS.
1.1 ASSETS TO BE PURCHASED Seller hereby agrees to convey, transfer,
assign, and deliver to Buyer on a going concern basis, and Buyer
hereby agrees to purchase from Seller all of Seller's assets
located at or used in connection with Seller's operation of the
Drug Store including but not limited to:
A. MARKETABLE INVENTORY. All marketable pharmaceutical and retail
inventory of Seller held for retail sale by the Drug Store, a
summary of which is attached as Exhibit "C".
B. PRESCRIPTION FILES AND PATIENT PROFILES. All prescription files,
patient profiles and customer list and telephone numbers.
C. FURNITURE, FIXTURES AND EQUIPMENT. Supplies and all furniture,
fixtures, equipment described in Exhibit "A" attached hereto and
made a part hereof, including but not limited to computers,
peripherals, cash registers, refrigerators, typewriters,
microfiche, fax machines, copiers, sound system, alarm system,
telephone equipment, shelving, counters, bottles, vials, ointment
jars and other usable supplies.
D. COPYRIGHTS, TRADE NAMES, AND TRADEMARKS. All copyrights, trade
names and trademarks associated with the Pharmacy Location (s)
including, but not limited to Interurban Pharmacy and all
variations thereof.
1.2 ASSETS NOT PURCHASED BY BUYER Unless otherwise agreed by the
parties in writing, Buyer shall not purchase the following:
(I) consigned merchandise; (ii) merchandise held in layaway;
(iii) merchandise which is damaged; (iv) merchandise which is
unsalable because its expiration date has expired; or (v) prescription
merchandise expiring within 30 days or prescription merchandise or
over-the-counter drugs which are (a) in a partially filled container
with a date which will expire within 30 days of the closing date; or
(b) in a full, sealed container with a date which is expired; (vi)
all accounts receivable for services rendered on or before closing,
including, but not limited to, third party insurance receivables,
individual charge account receivables, and Worker's Compensation
receivables; (vii) and Seller's full interest in a class action
lawsuit brought against certain pharmaceutical companies based on
claims of anti-trust and other legal violations, which lawsuit is
currently pending.
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1.3 TELEPHONE NUMBERS. Seller agrees to use all reasonable efforts and
take all action necessary to assure that all telephone numbers used
at the Drug Store shall be transferred without interruption to Buyer.
1.4 POST OFFICE AND LOTTERY. Buyer acknowledges that a portion of the
premises is being used as Post Office and that the Seller sells
Lottery tickets. Additionally, Buyer acknowledges that Buyer is
responsible for making the necessary arrangements to continue both
services.
2. PURCHASE PRICE.
2.1 COMPUTATION. The purchase price to be paid by the Buyer for the
Drug Stores Assets shall be computed as follows: (i) $180,000 for
prescription files, patient profiles, furniture, fixtures,
equipment, and goodwill; plus (ii) the discounted fair market value
of all inventory constituting a part of the Drug Store Assets
determined in accordance with Section 2.6, below;
2.2 ALLOCATION. The total purchase price described in Section 2.1,
above, shall be allocated as set forth in Exhibit "B" attached
hereto and made a part hereof.
2.3 PAYMENT OF THE PURCHASE PRICE. Buyer shall cause the purchase
price to be paid to Seller as follows:
(a) $200,000 on the Closing Date by Company, certified or cashier's
check (less the ▇▇▇▇▇▇▇ Money Deposit as such term is defined in
Section 2.4, below);
(b) Shares of Buyer's common stock, par value $ .01 per share (the
"HORIZON Common Stock"), equivalent to $462,203.00 based upon
the average closing price for the HORIZON common stock as
reported in the Wall Street Journal for the ten (10) business
days immediately preceding the Closing Date, as such term is
defined in Section 7.1, below. The dollar amount will be equal
to the actual valuation of the store inventory plus or minus
any adjustments pursuant with 2.3(c) and 2.3(d).
(c) Buyer shall deduct from the purchase price payable at Closing
an amount equal to the sum of (i) Seller's pro rata share of
personal property taxes as described in Section 2.5.2, below, and
(ii) one half of the fee charged by the third party inventory
service.
(d) Additionally, Buyer and Seller shall prorate rent and utilities
for the month of July upon presentation of invoices by Buyer
(which may occur after closing) and Buyer shall purchase ▇▇▇▇▇
cash and register cash from Seller at closing and reimburse
Seller for any security deposit on deposit with the landlord
for the retail location.
(e) Adjustments to the total purchase price, up or down, based on the
actual inventory shall be made in the number of shares of Buyer's
common stock given as consideration.
2.4 ▇▇▇▇▇▇▇ MONEY DEPOSIT. Buyer herewith deposits with ___________
_________ (the "Escrow Agent"), the sum of $5,000 (the "▇▇▇▇▇▇▇
Money Deposit")), which sum shall be applied to the cash portion
of the purchase price at Closing. In the event Seller fails to
perform each and every covenant and condition required hereunder,
Buyer may terminate this Agreement by giving Seller written notice
and Seller shall return the ▇▇▇▇▇▇▇ Money to Buyer within three (3)
days of Seller's receipt of such notice. In the event Buyer fails
to perform each and every obligation hereunder, Seller may
terminate this Agreement and retain the
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▇▇▇▇▇▇▇ Money as liquidated damages. The remedies provided in this
Section shall be the exclusive remedies for a breach of this Section.
2.5 TAXES
2.5.1 SALES, USE, AND TRANSFER TAXES Buyer shall pay any and all
sales, use, and transfer taxes arising out of the sale of the
Drug Store Assets pursuant to this Agreement.
2.5.2 PERSONAL PROPERTY TAXES. Seller shall pay all personal
property taxes attributable to the Drug Store Assets for the
period up to and including the Closing Date, and Buyer shall
pay all personal property taxes attributable to the Drug Store
Assets for the period following the Closing Date. The parties
shall, using last year's tax returns, estimate as of the
Closing Date the personal property taxes anticipated to be
owed on the Drug Store Assets for the current calendar year,
and Seller's pro rata portion of such estimated taxes shall be
withheld by Buyer from the purchase price described in Section
2.3, above.
2.6 INVENTORY EVALUATION A physical inventory of the Drug Store Assets
shall be performed on the Closing Date by an independent third
party inventory service. Each party shall pay one-half of the fee
charged by the service company, with Seller's pro rata share of
such costs to be deducted from the purchase price payable by Buyer
at Closing. For purposes of calculating that portion of the
purchase price attributed to inventory under Section 2, above, the
marketable inventory shall be valued as follows, except as
otherwise provided herein:
Marketable Inventory Method of Valuation
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Prescription inventory Acquisition cost or AWP less 16%
except for special deal prescription
items or generic items which shall be
valued at acquisition cost
Non-Prescription inventory Acquisition cost
In the event Seller is unable to establish the acquisition cost of any
non-prescription inventory, the following formula shall be applied in
valuing such inventory.
Category of Merchandise Method of Valuation
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HBA Retail price less 25%
OTC Retail price less 25%
Gifts Retail price less 50%
Cards Retail price less 50%
Cosmetics Retail price less 33 1/3%
Watches/Cameras Retail price less 33 1/3%
Fragrances Retail price less 25%
Candy (box) Retail price less 40%
Candy (loose) Retail price less 30%
Jewelry Retail price less 50%
Miscellaneous Retail price less 50%
Seasonal Merchandise Retail price less 50%
3. REPRESENTATIONS AND WARRANTIES.
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3.1. The Seller does hereby represent and warrant to Buyer as follows:
3.1.1 ORGANIZATION. Seller is a corporation duly organized and
existing in good standing under the laws of its state of incorporation
and is entitled to own and lease its properties and to carry on its
business as and in the places where such properties are now owned,
leased or operated and such business is conducted.
3.1.2 AUTHORITY. The execution, delivery and performance of this
agreement by Seller has been duly authorized by all necessary
corporate action and constitutes a legal, valid, and binding
obligation on Seller enforceable in accordance with its terms.
3.1.3 TITLE TO PROPERTIES. The Seller has good and marketable
title to all of the Drug Store assets, free and clear of all
mortgages, liens, encumbrances, pledges, or security interests of
any nature whatsoever, except for secured debts, if any, listed on
Exhibit "D" attached hereto which shall be satisfied and released
at or prior to closing.
3.1.4 BOOKS AND RECORDS. Seller's books and records which have been
provided to Buyer for inspection are true, correct and complete, and
contain no material omission with respect to Seller's business,
operation or status.
3.1.5 STATEMENTS NOT MISLEADING. No representation, warranty or
other information disclosed to Buyer in connection with this Agreement
omits or will omit to state the material facts necessary to make such
representation, warranty or information not misleading.
3.1.6 COMPLIANCE WITH APPLICABLE LAWS. Seller has received no
notice of violation of any applicable law, regulation or
requirement relating to the operation of the Drug Store, the Drug
Store Assets or the Retail Location, and Seller has no knowledge of
or reason to believe any such violation exists. Seller is in full
compliance with all wages and hour laws, and to the best of its
knowledge is not engaged in any unfair labor practice or
discriminatory employment practice and no complaint of any such
practice against Seller is filed or threatened to be filed with or
by the National Labor Relation Board, the Equal Employment
Opportunity Commission or any other administrative agency, Federal
or state, that regulates labor or employment practices, nor is any
grievances filed or threatened to be filed against Seller by any
employee pursuant to any collective bargaining or other employment
agreement to which Seller is a party. To the Seller's best
knowledge it is in compliance with all applicable Federal and state
laws and regulations regarding occupational safety and health
standards and has received no material complaints from any Federal
or state agency or regulatory body alleging violations of any such
laws and regulations. The Drug Store and the use and operation
thereof are currently in compliance with all applicable laws,
ordinances, rules and regulations relating to public health and
safety and protection of the environment. Seller has not released,
generated, discharged, manufactured, treated, transported or
disposed of hazardous material on, in, under or from the Drug Store
or placed or stored any hazardous material on the property. To the
best of Seller's knowledge, (a) no release, generation, discharge,
manufacture, treatment, transportation or disposal of hazardous
material has occurred on, in, under or from the Drug Store, (b) no
hazardous material is or has been stored or otherwise located on,
in or under the Drug Store, and (c) there are no underground
storage tanks on the Drug Store premises. There are no pending or
to the best of Seller's knowledge threatened requests for
information, action or proceedings from or by any governmental
agency or any other person or entity regarding the condition or use
of the
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Drug Store or the release, generation, discharge, manufacture,
treatment, transportation or discharge of hazardous material on,
in, under or from the Drug Store.
3.1.7 CONTRACTS. Seller is not a party to any contract,
understanding or commitment whether in the ordinary course of
business or not, relating to Seller's operation of the Drug Store
which extends beyond the Closing Date except those listed on
Exhibit "F", which Buyer agrees to assume.
3.1.8 EMPLOYMENT CONTRACTS. Seller is not a party to any oral or
written contract of employment between Seller and any officer or other
employee, and the employment of each of Seller's officers and all the
Drug Store's employees is terminable at will without any penalty or
severance obligation of any kind.
3.1.9 LITIGATION. Seller is not a party to and has no knowledge
of any suit, action, proceeding, investigation, claim, complaint or
accusation pending or threatened against or affecting Seller or the
Drug Store Assets, in any court or before any arbitration panel of
any kind or before or by any Federal, state, local, foreign or
other government agency, department, commission, board, bureau,
instrumentality or body, and to the best knowledge and belief of
Seller, there is no basis for any such suit, action, litigation,
proceeding, investigation, claim, complaint or accusation. There
is no outstanding order, writ, injunction, decree, judgment or
award by any court, arbitration panel or government body against or
affecting Seller, Drug Store, the Drug Store Assets or the Retail
Location.
3.1.10 EMPLOYEE BENEFITS All sums due for employee compensation
and benefits and all vacation time owing to any employees of Seller
have been duly and adequately accrued and reflected in the
accounting records of Seller. Seller shall be responsible for all
employee benefits, including but not limited to payment for accrued
vacation, to the Closing Date. To the Seller's best knowledge, all
employees of Seller are either United States citizens or resident
aliens specifically authorized to engage in employment in the
United States in accordance with all applicable laws.
3.1.11 TAXES.
(a) Seller has filed all required Federal, state, local,
foreign and other tax returns, notices and reports
(including, but not limited to, income, property, sales,
use, franchise, capital, stock, excise, added value,
employee's income withholding, social security and
unemployment tax returns) heretofore due; and to Seller's
best knowledge all such returns, notices, and reports are
correct, accurate, and complete.
(b) Seller has made all deposits required to be made in
connection with any tax including but not limited to,
estimated income, franchise, sales, use, and employee
withholding taxes.
3.1.12 INVESTMENT PURPOSE. Seller is acquiring the HORIZON Common
Stock for investment, and not with a view to the sale or
distribution thereof. Seller understands and acknowledges that the
transfer of the HORIZON Stock issuable hereunder will be restricted
and that Seller may not sell or otherwise dispose of such shares
unless and until a registration statement under the Security Act of
1933, as amended (the "Securities Act"), is in effect with respect
thereto and Seller has fully complied with the Securities Act and
all applicable regulations thereunder, or Seller has received an
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opinion from Buyer's counsel that the contemplated sale or other
disposition of the HORIZON Common Stock will not require
registration under the Security Act.
3.1.13 INSURANCE. All inventories, buildings and fixed assets
owned or leased by Seller are and will be adequately insured
against fire to the Closing Date, valid policies therefor are and
will be outstanding and in force, and the premiums will be paid
before the Closing Date.
3.1.14 NO CHANGES. Until the Closing Date, Seller will not, except
with Buyer's prior written consent: (i) conduct its business except
in the regular and ordinary course; (ii) increase the amount of
compensation currently being paid to employee or agent, or make any
bonus arrangement with any employee or agent; (iii) enter into any
transaction other than in the ordinary course of business; or (iv)
pay out of assets being sold to Buyer any debt, obligation or
liability which Buyer has not agreed to assume under the terms of
this Agreement.
3.2 Buyer does hereby represent and warrant to Seller as follows:
3.2.1 ORGANIZATION. Buyer is a corporation duly organized and
existing in good standing under the laws of Delaware, and is
entitled to own or lease properties and carry on its business as
and in the places where such properties are now owned, leased or
operated and such business is now conducted.
3.2.2 COMMON STOCK. Buyer has authorized 14,000,000 shares of
HORIZON Common Stock of which approximately 5,400,000 shares are
currently issued and outstanding, and 1,000,000 share of preferred
stock, par value $0.01 per share, none of which are currently
issued and outstanding.
4. CONDITIONS TO CLOSING.
4.1. BUYER'S CONDITIONS TO CLOSING. All obligations of Buyer
under this Agreement are subject to the fulfillment, prior
to or at Closing, of each of the following conditions
(unless waived in writing by Buyer).
4.1.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement shall be
true and complete at the Closing Date as if they were made
at such time.
4.1.2 COMPLIANCE. Seller shall have performed and complied with
all terms and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing
Date.
4.1.3 CONSENTS. All necessary consents to the transfer of the
Drug Store Assets have been obtained from vendors and
other third party, if any.
4.1.4 NO CASUALTY. The Drug Store's business and property shall
not have been adversely affected in any material way as a
result of any strike, lock-out, accident or other casualty
or act of God or the public enemy, or any judicial,
administrative or governmental proceeding.
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4.1.5 LEASE OF RETAIL LOCATION. Buyer shall have executed a lease
assignment covering the Retail Location.
4.1.6 LICENSE TO OPERATE RETAIL PHARMACY. Buyer shall have obtained
a valid license to operate a retail pharmacy under the HORIZON
Pharmacies, Inc. name in the state of TEXAS.
4.2 SELLER'S CONDITIONS TO CLOSING. All obligations of Seller under
this Agreement are subject to the fulfillment, prior to or at Closing,
of each of the following conditions (unless waived in writing by
Seller).
4.2.1 REPRESENTATIONS. The representations and warranties of Buyer
contained in this Agreement shall be true and complete at the
Closing Date as if they were made at such time.
4.2.2 COMPLIANCE. Buyer shall have performed and complied with all
terms and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date.
4.2.3 INSURANCE. Buyer shall have documentation of insurance
coverage.
5. LIABILITIES NOT ASSUMED BY BUYER. The parties expressly agree and
acknowledge that Buyer shall not, by virtue of this Agreement, the
consummation of the transactions contemplated herein or otherwise,
assume any liabilities or obligations of Seller or any liabilities or
obligations constituting a charge, lien, encumbrance or security
interest upon the Drug Store Assets, regardless of whether such
liabilities or obligations are absolute or contingent, liquidated or
unliquidated or otherwise; except as provided in Section 3.1.7
6. INDEMNIFICATION.
6.1 SELLER'S INDEMNIFICATION OF BUYER. Seller and ▇▇▇▇▇ ▇▇▇▇▇▇ shall
indemnify and hold harmless Buyer against and in respect of any and
all liabilities concerning or otherwise connected to the conduct or
operation of the Drug Store as of or prior to the Closing Date, and
with the exception of liabilities expressly assumed by Buyer, all
liabilities and obligations of the Seller, of every kind and
description, regardless of whether such liabilities or obligations
are absolute or contingent, liquidated or unliquidated, accrued or
otherwise, and regardless of how and when the same may have arisen,
which are asserted against Buyer as a result of this Agreement or
the consummation of the transactions contemplated herein. Seller
and ▇▇▇▇▇ ▇▇▇▇▇▇ also indemnify, defend, and hold harmless Buyer
against and in respect of any cost, damage, expense, liability or
loss incurred or suffered by Buyer resulting from or arising out of
the breach, inaccuracy, misrepresentation or untruth of any
representation or warranty which survives the Closing, or the
nonfulfillment of the post-closing agreements of Seller, including
without limitation the agreements of Seller set forth in Section
8.5 regarding access to records in order for Buyer to conduct an
audit of the last two (2) fiscal years and unaudited financial data
up to the Closing Date. The foregoing indemnifications shall be
joint and several, and indemnified costs and expenses shall include
reasonable attorney's fees and related expenses. The right of
indemnification shall be in addition to and shall not operate as a
limitation on any other right or remedy pursuant to this agreement
or any document or instrument executed in connection with the
consummation of the sale and
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purchase of the Drug Store. The provisions of this paragraph shall
survive the closing of this transaction for a period of one (1) year.
6.2 BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify and hold
harmless Seller against and in respect of any and all liabilities
concerning or otherwise connected to the conduct or operation of the
Drug Store following the Closing Date, or arising out of any
misrepresentation or breach of any of the provisions contained herein.
The provisions of this paragraph shall survive the closing of this
transaction for a period of one (1) year.
7. CLOSING.
7.1 CLOSING DATE. The closing shall take place at the Retail Location
on or before July 24, 1998 (the "Closing Date") but in no event
later than August 8, 1998 unless otherwise agreed by the parties in
writing.
7.2 SELLER'S OBLIGATIONS AT CLOSING. Seller shall deliver to Buyer at
closing of this Agreement a ▇▇▇▇ of Sale effective to vest in Buyer
good and marketable title to the Drug Store Assets, free and clear
of all mortgages, security interest, liens, encumbrances, pledges
and hypothecation of every nature and description and all other
instruments and documents that are necessary or appropriate to the
sale and delivery of the Drug Store Assets.
7.3 BUYER'S OBLIGATIONS AT CLOSING. Buyer shall deliver to Seller at
closing: (i) a check for the cash portion of the purchase price
provided for in Section 2.3 made payable to Seller and Seller's
secured lender; and (ii) evidence that the shares of Common Stock
provided for in Section 2.3.(b) shall be promptly delivered.
8. MISCELLANEOUS.
8.1 SURVIVAL OF REPRESENTATION, WARRANTIES AND INDEMNIFICATIONS. All
of the representations, warranties and indemnifications of the
parties set forth in this Agreement shall survive the Closing
hereof. The provisions of this paragraph shall survive the closing
of this transaction for a period of one (1) year.
8.2 RISK OF LOSS. The risk of loss of damages of Drug Store Assets shall
be upon Seller until the closing hereof.
8.3 COVENANT NOT TO COMPETE. Except as otherwise provided herein,
▇▇▇▇▇ ▇▇▇▇▇▇ shall not, for a period of six (6) years after the
Closing Date, directly or indirectly own an equity interest in,
operate, manage or assist any person or entity other than Buyer in
operating or managing, any business which includes a retail
pharmacy, nursing home or home health care company, or which offers
for sale or lease durable medical equipment within a five (5) miles
radius of store location, excluding Shan-La, inc. d/b/a Park Plaza
Pharmacy, located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇. The parties expressly agree that ▇▇▇▇▇ ▇▇▇▇▇▇ may serve no
more than one (1) day per week as a relief pharmacist at retail
pharmacies not owned or
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operated by Buyer. The parties acknowledge that the territorial
and time limitations contained in the paragraph are reasonable and
properly required for the adequate protection of the business to be
conducted by Buyer with the assets and properties to be transferred
hereunder and can not be changed except by written permission of
Buyer.
8.4 RIGHT TO ENJOIN BREACH. The parties agree that in the event of a
breach by Seller of any provision of this paragraph, monetary
damages alone would be inadequate and Buyer shall, in addition to
all other legal remedies, be entitled to obtain an order enjoining
Seller from violating the covenants set forth herein.
8.5 ACCESS TO RECORDS. Seller shall give Buyer, its counsel,
accountants and representatives, reasonable access during normal
business hours to all of Seller's books, contracts, commitments and
records and furnish Buyer with all information which Buyer
reasonably may request to conduct a financial audit of the last two
(2) fiscal years and unaudited financial data up to Closing Date at
Buyer's expense. The Buyer's audit will be conducted after the
Closing Date.
Seller and ▇▇▇▇▇ ▇▇▇▇▇▇ agree and certify that they are aware that
the post-Closing audit by Buyer is required in order to satisfy
Buyer's regulatory reporting and disclosure requirements and for
Buyer's general business purposes, that their prompt and complete
cooperation and compliance with the provisions of this Section are
required in order for such audit to be completed on a thorough and
timely basis and that their failure to cooperate and comply could
subject them to a claim to be indemnified, defended and held
harmless or for other remedies available under this agreement or
pursuant to applicable law or regulation.
8.6 SELLER'S COLLECTION OF ACCOUNTS RECEIVABLE. Buyer acknowledges and
agrees that Seller will need assistance from Drug Store employees
to properly direct collections on account and to properly allocate
between Buyer and Seller based upon the invoice date referenced by
the payment.
8.7 GOVERNING LAW. This agreement shall be governed and construed in
accordance with the laws of the state of Texas.
8.8 ENTIRE AGREEMENT MODIFICATION. This agreement contains the entire
agreement between the parties, and no representations, warranties
or promises, unless contained herein, shall be binding upon the
parties hereto, their successors and assigns. This Agreement may
not be amended or terminated except by an instrument executed by
both parties.
8.9 ASSIGNMENT. This agreement may not be assigned by Buyer without
written consent of Seller, which consent will not be unreasonably
withheld.
8.10 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
BUYER: HORIZON Pharmacies, Inc.
Witness:
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▇▇▇▇ ▇▇▇▇▇▇, President
SELLER: ▇▇▇▇▇▇ Drug Corporation
Witness:
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▇▇▇▇▇ ▇▇▇▇▇▇, President
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