ASSETS PURCHASE AGREEMENT
This is an Assets Purchase Agreement dated as of January 26, 1998 (the
"Agreement"), by and among (i) Adult Daycare of America, Inc., a Delaware
corporation (the "Buyer"), (ii) Home Care Solutions, Inc., a Connecticut
corporation (the "Seller"), and (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Shareholder").
The Seller and the Shareholder are referred to collectively as the "Selling
Parties".
Recitals
A. The Seller is engaged in the business of providing home care, companion,
chore, personal and health care services (the "Business") based in Danbury,
Connecticut, serving the State of Connecticut (the "Territory").
B. The Seller desire to sell and the Buyer desires to purchase certain
assets used in the Business.
THE PARTIES, INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS:
Article 1 - Purchase and Sale of Assets
1.1 Purchased Assets. The Seller hereby agrees to sell, assign, transfer
and convey to the Buyer, and the Buyer hereby agrees to purchase from the
Seller, all of the assets of the Seller used in the Business (the "Purchased
Assets"), other than the excluded assets described on Schedule 1.1. The
Purchased Assets include without limitation the following assets and
properties:
(a) All furniture, fixtures, machinery, equipment and other tangible
personal property (to the extent such property is owned by the Seller);
(b) All of the Seller's goodwill relating to the Business; all customer and
client lists and files, records and similar sales and marketing information in
the Seller's possession relating to the Business; records of the customers and
clients serviced by the Business and in the Seller's possession; personnel
records; and the Seller's right and interest in the trade names, trademarks,
trade secrets, licenses, know-how, specifications, telephone numbers,
literature, and all other intangible property relating to the Business,
including without limitation, all of the Seller's right, title and interest in
and to the name "Home Care Solutions";
(c) All transferable licenses, permits, licenses, certificates,
authorizations, accreditations, orders, ratings and approvals of all federal,
state, or local governmental or regulatory authorities which relate to the
Business and which are held by the Seller, but only to the extent the same
are transferable; and
(d) Any and all rights of the Seller which by their terms are
transferable and which arise under or pursuant to warranties, representations
and guarantees made by suppliers in connection the Purchased Assets.
1.2 No Assumption of Liabilities. Except for prospective obligations under
the Assumed Contracts, the Seller shall retain, and the Buyer shall have no
obligation or liability with respect to, any liabilities or obligations,
actual or contingent, of the Seller or the Business, or any claims by any
person, firm or organization, arising out of any liabilities or obligations of
the Seller, or the operation of the Business prior to the Closing.
Notwithstanding anything in this Agreement to the contrary, the Buyer is not
assuming or taking any of the Purchased Assets or the Business subject to (i)
any liabilities or obligations of the Seller or the Business to the Seller's
shareholders, or (ii) any liabilities or obligations of the Seller or the
Business to any affiliate or related entity of the Seller.
1.3 Assumed Contracts. The Seller will assign or cause to be assigned to the
Buyer, and the Buyer will assume (i) the Seller's prospective obligation to
provide services to the Seller's customers and clients, (ii) the Seller's
prospective obligations under the contracts and leases described on Schedule
1.3, (iii) the Shareholder's or the Seller's confidentiality agreements with
prospective purchaser's of the Seller's assets or stock (collectively, the
"Assumed Contracts").
1.4 Employees. The Seller agrees that the Buyer will not be obligated to
hire any of the Seller's employees, but that the Buyer, in its sole
discretion, may hire some or all of such employees on such terms as the Buyer
and the employees so hired may agree. The Seller acknowledges that the Buyer
is not purchasing, recognizing, assuming or otherwise acquiring any rights,
obligations, assets or liabilities under, arising from or resulting from any
employment agreement or arrangement in existence between the Seller and any
employee, or any person employed to consult with or perform services for the
Seller, or otherwise. The Buyer will not be responsible to the Seller or to
any current or former employee of the Sellers for any employee benefits
(whether earned, accrued or vested) due to the Seller's employees with respect
to their employment prior to the Closing.
1.5 Confidentiality, Nonsolicitation and Noncompetition Agreement. Each of
the Selling Parties agrees to enter into a Confidentiality, Nonsolicitation
and Noncompetition Agreement at the Closing, in the form of the agreement
attached as Annex A (the "Noncompetition Agreement").
1.6 Right to Use "Home Care Solutions" Name. The Buyer will have the right,
by giving the Seller written notice, to require the Seller to change its
corporate name to a name dissimilar to the "Home Care Solutions" name and to
otherwise require the Seller to cease using the name "Home Care Solutions" or
any other confusingly similar derivation of "Home Care Solutions".
Article 2 - Purchase Price and Payment
2.1 Purchase Price. In consideration of the transfer of the Purchased
Assets and the Business, and the entering into of the Noncompetition
Agreement, the Buyer agrees to pay the Seller $1,000,000.00 in cash in the
aggregate, payable at the Closing by wire transfer to an account designated by
the Seller ( the "Purchase Price").
2.2 Proration Expenses. The Buyer and the Seller agree that the expenses
described on Schedule 2.2 will be prorated among the parties and will adjust
the Purchase Price as described on Schedule 2.2.
2.3 Allocation of Purchase Price. The Purchase Price will be allocated
among the Purchased Assets as set forth on Schedule 2.3. Schedule 2.3 will be
prepared by the Seller.
Article 3 - The Closing
3.1 Time and Place. The Closing ("Closing") shall take place on
February 2, 1998 (the "Closing Date"), or on such earlier date as each of the
conditions to the parties' obligations to close is either satisfied or waived.
The Closing will be effective as of 12:01 a.m. on February 1, 1998.
3.2 Execution and Delivery of Documents of Title by the Seller.
(a) At the Closing, the Seller shall execute and deliver to the Buyer
such conveyances, bills of sale, certificates of title, assignments,
assurances and other instruments and documents as the Buyer may reasonably
request in order to effect the sale, conveyance, and transfer of the Purchased
Assets from the Seller to the Buyer, and the Buyer will execute such
instruments and agreements as the Seller may reasonably request to effect an
assumption of the Assumed Contracts by the Buyer. Such instruments and
documents shall be sufficient to convey to the Buyer good title to the
Purchased Assets and to effect an assumption of the Assumed Contracts by the
Buyer. Also at the Closing, the parties shall cause the Noncompetition
Agreement and the Lease to be executed and delivered as of the Closing.
(b) The Sellers agree that they will, from time to time after the Closing
Date, take such additional action and execute and deliver such further
documents as the Buyer may reasonably request in order to effectively sell,
transfer and convey the Purchased Assets to the Buyer and to place the Buyer
in position to operate and control all of the Purchased Assets.
Article 4 - Representations and Warranties of the Selling Parties
As a material inducement to the Buyer to enter into and perform this
Agreement, each of the Selling Parties represents and warrants to the Buyer as
follows:
4.1 Authority.
(a) Each of the Selling Parties has full legal power and capacity to execute
and deliver this Agreement and the Noncompetition Agreement, and to perform
such Selling Party's respective obligations under this Agreement and the
documents contemplated by this Agreement. This Agreement and the
Noncompetition Agreement constitute valid and legally binding obligations of
each of the Selling Parties, enforceable in accordance with their terms. The
execution and delivery of this Agreement and the instruments called for by
this Agreement by or on behalf of the Seller and the consummation of the
transactions contemplated hereunder and thereunder, subject to the terms of
this Agreement, have each been duly authorized by all necessary corporate
action, including the requisite Board of Director and shareholder approvals.
(b) The execution and delivery of this Agreement and the Noncompetition
Agreement, the consummation of the transactions contemplated hereby and
thereby, and the performance and fulfillment of their respective obligations
and undertakings hereunder and thereunder by the Selling Parties will not, (i)
violate any provision of, or result in the breach of or accelerate or permit
the acceleration of any performance required by the terms of, any contract,
agreement, arrangement or undertaking to which any of the Selling Parties is a
party or by which any of them may be bound; any judgment, decree, writ,
injunction, order or award of any arbitration panel, court or governmental
authority; or any applicable law, ordinance, rule or regulation of any
governmental body; or the Seller's Certificate of Incorporation or Bylaws;
(ii) result in the creation of any claim, lien, charge or encumbrance upon any
of the properties or assets (whether real or personal, tangible or intangible)
of the Seller; (iii) terminate or cancel, or result in the termination or
cancellation of, any agreement or undertaking to which the Seller is a party;
or (iv) in any way affect or violate the terms or conditions of, or result in
the cancellation, modification, revocation or suspension of, any of the
Seller's permits or licenses.
(c) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Connecticut with full power and
authority (corporate or otherwise) to execute, deliver and perform its
obligations under this Agreement.
4.2 Financial Statements. The Financial Statements have been
prepared from the books and records of account of the Business and presents
fairly the results of operations and the financial condition of the Business
as of the date of such financial information. For purposes of this Agreement,
"Financial Statements" means the Seller's income statements and balance sheets
for the past three fiscal years, along with any interim financial statements
for periods after the Seller's last fiscal year-end.
4.3 Environmental Standards. The Seller has operated the Business in
material compliance with all limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
or required under the common law or any federal, state, local or foreign law,
regulations, ordinances, permits, licenses, consent decrees, orders and
clearances relating to pollution, the environment, or the use, storage,
transportation or disposal of pollutants, dangerous substances, toxic
substances, hazardous wastes, medical wastes, infectious wastes or hazardous
substances.
4.4 Tax Matters.
(a) As used in this Agreement, the term "Code" means the Internal Revenue
Code of 1986, as amended. The term "Tax" means any federal, state, local or
foreign tax, including any interest, penalty, or addition thereto, whether
disputed or not. The term "Tax Return" means any return, declaration, report,
claim for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any amendment
thereof.
(b) The Seller has filed all Tax Returns that it was required to file as of
the Closing Date; all such Tax Returns were correct and complete in all
material respects; all Taxes owed by the Seller which are due as of the
Closing Date have been paid; the Seller currently is not the beneficiary of
any extension of time within which to file any Tax Return; no claim has ever
been made by an authority in a jurisdiction where the Seller does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction; and
there are no liens on any of the assets of the Seller that arose in connection
with any failure (or alleged failure) to pay any Tax.
(c) There is no dispute or claim concerning any Tax liability of the Seller
either (A) claimed or raised by any authority in writing, or (B) as to which
the Shareholders have knowledge based upon personal contact with any agent of
such authority. The Seller has not been informed in writing that the Tax
Returns of the Seller are to be examined by the Internal Revenue Service or
any other state or local taxing authority for past years. There are no unpaid
Tax deficiencies; no examinations are pending; and, to the best of the
Seller's knowledge, no basis for any Tax deficiencies exists.
(d) The Seller has not waived any statute of limitations in respect of Taxes
or agreed to any extension of time with respect to a Tax assessment or
deficiency.
(e) The Seller has remitted all sales and use taxes due to any state or
local jurisdiction.
(f) Proper and accurate amounts have been withheld by the Seller from its
employees for all periods in full and complete compliance with the tax
withholding provisions of applicable federal, state and local law. Proper and
accurate federal, state and local returns have been filed by the Seller for
all periods for which returns were due with respect to employee income tax
withholding, social security and unemployment taxes and the amounts shown
thereon to be due and payable have been paid in full.
(g) The Seller's recent sales tax audit by the State of Connecticut has been
completed and the Seller has no deficiency or other liability to the State of
Connecticut with respect to those years under audit. The Purchased Assets are
subject to no tax lien arising out of the State of Connecticut's sales tax
audit.
4.5 Title. The Seller has and will transfer to the Buyer at the Closing
good title to all of the assets included among the Purchased Assets, free and
clear of any mortgages, security interests, pledges, liens, claims or
encumbrances.
4.6 The Purchased Assets.
(a) The Seller has good title to all of the Purchased Assets, free and clear
of any claims, liens, charges, mortgages, security interests or encumbrances
whatsoever. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated by this Agreement, will not
result in the creation of any lien or encumbrance on the Purchased Assets.
(b) Except as set forth in Schedule 4.6(b), the Purchased Assets, the
Assumed Contracts, and the real and personal property to be leased pursuant to
the Lease are (A) sufficient and adequate in all material respects to carry on
the Seller 's business as presently conducted, and (B) comply in all material
respects with the terms and conditions of all existing licenses, permits,
approvals, leases, franchises, charters and other agreements or authorizations
effecting or relating to any such Asset, and comply in all material respects
with all applicable federal, state and local laws, ordinances, rules and
regulations (including without limitation, fire, safety, environmental and
pollution control).
(c) The Seller owns no machinery, equipment, furniture, furnishings, office
supplies, vehicles, tools, supplies or computer hardware (collectively,
"FFE"). The Seller leases all FFE necessary for the operation of the
Business from ▇▇ ▇▇▇▇▇ Associates, Inc., pursuant to lease agreements included
among the Assumed Contracts. All of the FFE leased from ▇▇ ▇▇▇▇▇ Associates,
Inc. is in good condition and repair, ordinary wear and tear excepted; and (D)
is in the state of maintenance, repair and operating condition required for
the proper operation and use thereof in the ordinary course of business. The
FFE leased from ▇▇ ▇▇▇▇▇ Associates, Inc. constitutes all of the machinery,
equipment, furniture, furnishings, office supplies, vehicles, tools, supplies
and computer hardware used in the operation of the Seller's business.
(d) The operation of the Business does not require the Seller to hold any
inventory.
(e) The Seller does not currently own and has never owned real estate.
(f) No instrument of record, easement, license, grant, applicable zoning or
building law, ordinance, administrative regulation, urban redevelopment law or
other impediment of any kind prohibits or materially interferes with, limits
or impairs, or would, if not permitted by a prior nonconforming use, prohibit
or materially interfere with, limit or impair, the use, operation, maintenance
of or access to, or materially affects the value of, the Seller 's leased real
property, as now used, operated or maintained by the Seller . No notice of
any violation of any applicable zoning or building law or ordinance or
administrative regulation has been received by the Seller, and the Seller does
not know of any threat of any such notice. No condemnation proceeding has
been instituted or is to the Selling Parties' knowledge threatened with
respect to any of the Seller's leased real property.
(g) Prior to or in conjunction with the Closing, the Seller will have fully
disclosed to the Buyer all customer lists, trade secrets, pro-cesses,
inven-tions, formulas, methods, know-how and other propri-etary informa-tion
used or developed by the Seller or its employees in connection with the
Business. The Seller has not disclosed or per-mitted the disclosure of any
such proprietary information to any other person (other than prospective
purchasers of the Seller's stock or assets, all of whom have executed
confidentiality agreements in favor of the Shareholder and/or the Seller), and
the use by the Seller of such proprietary information does not violate any
other person's pro-prietary rights.
(h) The Seller has not caused or permitted any hazardous substance, as that
term is now defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. 9601, et seq.), medical wastes or
petroleum substances to be disposed on, under or at the premises of the
Business, or any part thereof, and no part thereof has ever been used by the
Seller as a permanent storage or disposal site for any such hazardous
substances, medical wastes, or petroleum substances.
4.7 Insurance. The Seller has provided the Buyer with a true and
correct list of all policies of insurance which insure the Purchased Assets or
the Business, setting forth the types and amounts of coverage. Such policies
will remain in effect until the Closing Date. Schedule 4.7 is a true and
correct list of all claims against such insurance policies during the past
two years.
4.8 Disclosure. No representation or warranty made by the Selling Parties
in this Agreement and no statement made in or any amount set forth on any
schedule called for by and incorporated into this Agreement is false or
misleading in any material respect or omits to state any fact necessary to
make any such representation or statements not misleading in any material
respect.
4.9 Governmental and Industrial Approvals. Except as set forth in Schedule
4.9, there are no permits, licenses, accreditations, authorizations, orders,
ratings or approvals of any federal, state, local or foreign governmental or
regulatory bodies necessary under current laws and regulations for the
Seller's operation of the Business as presently conducted.
4.10 Intentionally Omitted.
4.11 Contracts and Commitments. Except for the Assumed Contracts, the
Seller is not a party to any written or material oral contract or commitment
relating to the Business, and neither the Business nor the Purchased Assets
are the subject of any contract or commitment. Each of the Assumed Contracts
is the valid and binding agreement of the parties to such contracts, and no
party to the Assumed Contracts is in default under such contracts, subject to
bankruptcy, insolvency and other laws affecting creditors' rights generally.
Except as set forth on Schedule 4.11, no consents are required in connection
with the consummation of the transactions contemplated by this Agreement. The
Selling Parties have not been made aware of any decision by the parties to the
Assumed Contracts of any intention to terminate or not renew such Assumed
Contracts. The Selling Parties have no knowledge of any facts relating to the
Assumed Contracts that would have a material adverse affect on the Buyer's
operation of the Business after the Closing Date.
4.12 No Violation of Law. Except as disclosed on Schedule 4.12, the Seller
is not in default or violation of, has received no notice of default or
violation of, and none of the Selling Parties has knowledge of any fact or
event which with the lapse of time or giving of notice would constitute a
default or violation of, any statute, ordinance, regulation, order, writ,
injunction or decree of any court or governmental agency or authority
applicable to the Business or the Purchased Assets.
4.13 Litigation. Except as disclosed on Schedule 4.13, there are no
actions, suits, claims, demands, investigations or proceedings pending, or, to
the Selling Parties' knowledge, after due inquiry, threatened before any
court, commission, agency or other administrative authority against, or
affecting the Business or the Purchased Assets or which would in any way
affect the transactions contemplated by this Agreement, and, after due
inquiry, the Seller is not the subject of any order or decree relating to or
affecting the Business or the Purchased Assets other than those of general
application. The Seller has not been subject to any bankruptcy or other
insolvency proceedings.
4.14 Labor. There is no collective bargaining or other union contract
relating to the Business to which the Seller is a party. To the Selling
Parties' knowledge, after due inquiry, there is not pending or threatened
against the Seller any grievance, labor dispute, organizational activity,
union trouble, strike or work stoppage which materially affects or which may
materially disrupt the Buyer or the Business. The Seller has complied with
all applicable laws, rules and regulations pertaining to the employment of
labor, including those relating to wages, hours, collective bargaining and the
payment of or withholding of taxes. The Seller has withheld all amounts
required by law or agreement to be withheld from the wages or salaries of the
Business' employees and they are not liable for any arrears of wages or any
tax or penalties for failure to comply with any of the foregoing.
4.15 Employment Contracts. There are no written or oral contracts for
employment of any personnel of the Business.
4.16 Employee Benefit and Retirement Plans. Except as disclosed on Schedule
4.16, the Seller does not now maintain any "employee pension benefit plan" or
any "employee welfare benefit plan" (as defined respectively in Section 3(2)
and 3(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) on behalf of the Business's employees, and the Seller does not
maintain any retirement plans, bonus arrangements, life insurance or medical
insurance programs or any other fringe benefit arrangements for any employees
whether written or unwritten.
4.17 Employees and Independent Contractors. The Seller has provided the
Buyer prior to the Closing Date with a true and correct list including the
name, salary or compensation (including without limitation all commission,
override or bonus arrangements), vacation and sick leave policies or other
benefits, job description and original employment or contract date of all
current employees and independent contractors of the Business based upon the
most recently processed information, and the accrued and/or earned vacation
time of all employees and, to the Selling Parties' knowledge, the dates and
information concerning any previous salary or compensation change or
adjustment and the reasons therefor for each such current employee.
4.18 Workers' Compensation. The Seller is in full compliance with all
workers' compensation laws with respect to the Business and has workers'
compensation insurance coverage in full force and effect with respect to the
Business, where any such non-compliance or lack of coverage would have a
material adverse effect on the Buyer's ownership, possession or use of the
Business or the Purchased Assets, or on the consummation of the transactions
contemplated under this Agreement.
4.19 Adverse Action. The Seller has not received any written notice of any
judicial or administrative action against the Seller, the Business or the
Purchased Assets.
4.20 Consents. Except as described on Schedule 4.20, no consents,
approvals or authorizations of, or declaration, filing or registration with,
any governmental or regulatory authority is required in connection with the
execution and delivery of this Agreement by the Seller and consummation by the
Seller of the transactions contemplated hereby.
4.21 Commissions. Neither of the Selling Parties has authorized any person
to act in such a manner as to give rise to any valid claim against the Buyer
for a brokerage commission, finder's fee, or similar payment as a result of
the transactions contemplated under this Agreement. The Selling Parties shall
defend, indemnify and hold harmless the Buyer from any claim for commissions
or fees alleged to have arisen from a contractual relationship or cooperation
in connection with the transactions contemplated under this Agreement.
4.22 Licenses, Permits and Payment Programs. The Seller has obtained and
holds all required licenses, permits, certificates, and authorizations
necessary for the Seller to operate the Business as conducted prior to the
Closing. A copy of each of the foregoing is attached to Schedule 4.22.
Article 5 - Representations of the Buyer
As a material inducement to the Seller to enter into this Agreement, the
Buyer hereby represents and warrants to the Seller as follows:
5.1 Authority.
(a) The execution and delivery of this Agreement and the instruments called
for by this Agreement by or on behalf of the Buyer and the consummation of the
transactions contemplated hereunder and thereunder, subject to the terms of
this Agreement, have each been duly authorized by all necessary corporate
actions. This Agreement and each of the instruments called for by this
Agreement will be a valid and binding obligation of the Buyer, each
enforceable against the Buyer in accordance with their respective terms.
(b) The Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with full power and authority
(corporate or otherwise) to execute, deliver and perform its obligations under
this Agreement and the documents contemplated by this Agreement.
5.2 No Violation of Law; Other Agreements. Neither the execution and
delivery of this Agreement or the instruments called for by this Agreement,
nor consummation of the transaction herein or therein contemplated, nor
compliance with the terms, conditions and provisions hereof or thereof, will
conflict with or violate any provision of law or of the Certificate of
Incorporation or Bylaws of the Buyer, or result in a violation or default in
any provision or any regulation, order, writ, injunction or decree of any
court or governmental agency or authority, or of any agreement or instrument
to which the Buyer is a party or by which the Buyer is bound or subject.
5.3 Commissions. The Buyer has not authorized any person to act in such a
manner as to give rise to any valid claim against the Seller for a brokerage
commission, finder's fee, or similar payment as a result of the transactions
contemplated under this Agreement. The Buyer shall defend, indemnify and hold
harmless the Seller from any claim for commissions or fees alleged to have
arisen from a contractual relationship or cooperation in connection with the
transactions contemplated under this Agreement.
5.4 Litigation. There is no action, suit, claim, demand, investigation or
proceedings pending or, to the knowledge of the Buyer, threatened by any
corporation, person or entity against the Buyer or which would in any way
affect the transactions contemplated by this Agreement. No order, writ,
injunction or decree has been issued by, or to the knowledge of the Buyer,
requested of, any court or governmental agency which reasonably could be
expected to result in any adverse change in the business, property or assets
or in the condition, financial or otherwise, of the Buyer or which could
reasonably be expected to adversely affect the transactions contemplated by
this Agreement. The Buyer has not been subject to any bankruptcy or other
insolvency proceedings.
Article 6 - Covenants of the Selling Parties
6.1 Conduct of Business. From the date of this Agreement until the Closing
Date, the Seller shall operate the Business and otherwise conduct its business
relating to the Business only in the ordinary course of business, and in
substantial compliance with all statutory and regulatory requirements of any
applicable federal, state or local authority, and shall enter into no material
contract or other transaction relating to the Business other than in the
ordinary course of business without the prior written consent of the Buyer.
Between the date hereof and the Closing Date, the Seller shall use its best
efforts to retain its present employees and preserve the goodwill and business
of its customers, suppliers, and others having business relations with it, and
shall conduct the financial operations of the Business in accordance with its
existing business practices. From the date of this Agreement to the Closing
Date, the Seller shall not do any of the following in connection with its
ownership and operation the Business and the Purchased Assets without the
Buyer's prior written consent:
(a) cancel or permit any insurance, bond, surety instrument or letter of
credit to lapse or terminate, except in the ordinary course of business or
unless renewed or replaced by like coverage;
(b) default in any respect under any loan, material contract, agreement,
lease or commitment;
(c) enter into any contract, agreement, lease or other commitment,
except in the ordinary course of business;
(d) sell or agree to sell the Business or any of the Purchased Assets;
(e) hire any employees, increase any compensation to employees,
enter into any employment arrangement, agreement or undertaking, or pay or
promise to pay any fringe benefit, bonus or special compensation to employees,
except in the ordinary course of business;
(f) impede the Buyer, its counsel, accountants and other representatives
from reasonable access, during normal business hours and upon reasonable
advance notice, to the Business and the Purchased Assets so that the Buyer may
have the opportunity to investigate same; or
(g) encumber any of the Purchased Assets or incur any liabilities with
respect to the Business, except in the ordinary course of business.
6.2 Sales, Etc. The Seller shall not sell, lease, remove or otherwise
dispose of any of the Purchased Assets, which are located or used in the
Business (except for retirements and replacements in the ordinary course of
business, provided that all items which are retired or replaced are
contemporaneously replaced by items of substantially equivalent value), or
liquidate or dissolve.
6.3 Insurance. The Seller shall maintain the insurance described in Article
4.
6.4 Notice. From the date hereof to the Closing Date, the Seller shall
promptly advise the Buyer of the occurrence of any governmental inspections,
investigations, citations with respect to the Business or the Purchased
Assets, and of which the Seller has received written notification.
6.5 Access to Personnel and Records. From the date of this Agreement until
the Closing Date, the Seller and the Business shall give the Buyer, and the
Buyer's counsel, accountants, consultants and other agents and
representatives, reasonable access, during normal business hours and upon
reasonable request, to its properties, books, contracts, commitments and
records relating to the Assets and the operations of the Business.
6.6 Financial Information. The Seller shall provide the Buyer with such
financial information relating to the operations of the Business as the Buyer
may reasonably request.
6.7 Collection Practices. The Seller shall not deviate from its current
lawful practices with respect to the collection of accounts receivable from
the customers of the Business and clients to the extent that any such change
in collection practices would impair or adversely affect the ability of the
Business to continue its relationships with those customers and clients after
Closing.
6.8 Cooperation. From the date hereof to the Closing Date, each of the
Selling Parties shall cooperate in good faith with the Buyer in order to
obtain all governmental, regulatory and other third party consents and
approvals which are necessary or desirable to consummate the transactions
contemplated under this Agreement. Each of the Selling Parties agrees to
cooperate fully with Buyer with respect to the Buyer's due diligence
investigation of the Seller's Business.
The Shareholder agrees to vote all of such Shareholder's shares of the
Seller's stock in favor of the transactions contemplated by this Agreement.
The Shareholder also agrees to use such Shareholder's best efforts to cause
each of the conditions to the Buyer's obligation to close the transactions
contemplated by this Agreement set forth in Article 8 to be satisfied on or
prior to the Closing Date.
6.9 Approval of Transfer. From the date hereof to the Closing Date, the
Seller shall use its best efforts, including the filing and submission of all
necessary and appropriate applications and documents, to obtain the approvals
and consents of all applicable governmental and regulatory authorities and the
landlord, and any other third party identified as necessary in order to
transfer the Purchased Assets to the Buyer.
6.10 Consents. The Selling Parties shall use their best efforts to procure
the consents of any third parties necessary for the assignment to the Buyer of
any contract, agreement or lease hereunder.
6.11 No-Shop Clause. From and after the date of the execution and delivery
of this Agreement by the Selling Parties until the Closing or the termination
of this Agreement (unless the Closing Date is extended beyond such date by the
parties), neither of the Selling Parties shall, without the prior written
consent of the Buyer: (i) offer for sale any material portion of the Business
or assets, (ii) solicit offers to buy all or any material portion of the
Business, (iii) hold discussions with any party (other than the Buyer) looking
toward such an offer or solicitation or looking toward a merger or
consolidation of the Seller, or (iv) enter into any agreement with any party
(other than the Buyer) with respect to the sale or other disposition of any
material portion of the Business or the Seller's stock, or with respect to any
merger, consolidation, or similar transaction involving the Seller or the
Seller's stock.
Article 7 - Covenants of the Buyer
7.1 Access to Records. For a period extending to the greater of five years
from and after the Closing Date or the date of final settlement of cost
reports for any period prior to the Closing Date, the Buyer shall retain the
records of the clients and customers serviced by the Business on and prior to
the Closing Date, and will give the Seller, and the Seller's counsel,
accountants, consultants and other agents and representatives, full and
complete access, during reasonable business hours and upon reasonable request.
7.2 Cooperation. From the date hereof until the Closing Date, the Buyer
shall cooperate in good faith with the Seller in order to obtain all
governmental, regulatory and other third party consents and approvals which
are necessary or desirable to consummate the transactions contemplated under
this Agreement.
7.3 Approval of Transfer. From the date hereof until the Closing Date, the
Buyer shall use its best efforts, including the filing and submission of all
necessary and appropriate applications and documents, to obtain the approvals
and consents of all applicable governmental and regulatory authorities and
other third parties required or necessary in order to transfer the Purchased
Assets to the Buyer.
7.4 Publicity. Except as required by applicable law, without the prior
written consent of the Selling Parties, the Buyer will not disclose or
publish, or permit the disclosure or publication of, any information
concerning the execution and delivery of this Agreement, or the transactions
contemplated by this Agreement. The Selling Parties acknowledge that the
Buyer's parent is a publicly traded corporation and disclosure of the entering
into and terms of this Agreement may be required by applicable securities
disclosure and exchange laws, regulations and rules.
7.5 Sales Tax Clearance Certificate. The Seller agrees to obtain as soon as
possible after the Closing and deliver to the Buyer a State of Connecticut
sales tax clearance release for the Seller for the period through the Closing
Date.
Article 8 - Conditions Precedent to the Buyer's Obligations
The Buyer's obligation to close shall be subject to the satisfaction of
the following conditions before or at Closing, unless waived by the
Buyer:
8.1 Representations and Warranties True at Closing. The representations,
warranties and covenants made by the Seller in this Agreement shall be true in
all material respects at and as of Closing as if made on and as of Closing.
8.2 Compliance with Agreement. The Seller shall have performed and complied
in all material respects with all of its covenants and obligations under this
Agreement which are to be performed or complied with by it before or at
Closing.
8.3 The Seller's Certificate. The Seller shall have delivered to Buyer a
certificate stating that (i) the representations, warranties and covenants
made by the Seller in the Agreement are true in all material respects at and
as of Closing as if made on and as of Closing, and (ii) the Seller has
performed and complied in all material respects with all of its covenants and
obligations under this Agreement which are to be performed or complied with by
it before or at Closing.
8.4 Adverse Proceedings. No suit, action, claim or governmental proceeding
shall be pending against, and no order, decree or judgment of any court,
agency or other governmental authority shall have been rendered against the
parties or any party hereto which would render it unlawful, as of the Closing
Date, to effect the transactions contemplated by this Agreement in accordance
with its terms or otherwise have a material adverse effect on the Buyer's
ownership, use or enjoyment of the Purchased Assets.
8.5 Approvals. All necessary federal, state and local governmental and
regulatory and other third party consents, waivers, and other approvals or
determinations required to be obtained with respect to the sale and/or
transfer of the Purchased Assets to the Buyer and Buyer's operation of the
Business thereafter shall have been obtained, with the form and substance of
such consents, etc. satisfactory to the Buyer in its reasonable discretion.
The consents to assignment of the Assumed Contracts must be in a form
satisfactory to the Buyer.
8.6 Closing Documents. The Selling Parties must have delivered the
Noncompetition Agreement, and the other documents required to be delivered by
the Selling Parties to the Buyer pursuant to this Agreement shall be executed
in a form reasonably acceptable to the Buyer.
8.7 Opinion of Counsel. The Seller's counsel must have delivered a
satisfactory opinion of counsel to the Buyer, substantially in the form of the
opinion attached as Annex B.
8.8 The Lease. The Buyer must have entered into a lease with ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Associates and ▇▇ ▇▇▇▇▇ Associates, Inc. of the premises currently occupied by
the Seller, and the personal property used by the Seller in the operation of
the Business, such lease to be in the form attached to this Agreement as Annex
C (the "Lease").
8.9 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Noncompetition Agreement. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ must have
entered into the Confidentiality, Nonsolicitation and Noncompetition Agreement
in the form of the agreement attached as Annex E (the "▇▇▇▇▇▇▇ ▇▇▇▇▇
Noncompetition Agreement").
8.10 Termination of New Milford Bank & Trust Co. Lien. The New Milford Bank
& Trust Co. lien must be terminated.
Article 9 - Conditions Precedent to the Seller's Obligations
The Seller's obligation to close shall be subject to the satisfaction of
the following conditions prior to or at Closing, unless waived by the
Seller:
9.1 Representations and Warranties True at Closing. The representations and
warranties made by the Buyer in this Agreement shall be true in all material
respects at and as of Closing with the same effect as though such
representations and warranties had been made or given on and as of Closing.
9.2 Compliance with Agreement. The Buyer shall have performed and complied
in all material respects with all its covenants and obligations under this
Agreement which are to be performed or complied with by it before or at the
Closing.
9.3 Buyer's Certificate. The Buyer shall have delivered to the Seller a
certificate stating that (i) the representations, warranties and covenants
made by the Buyer in the Agreement are true in all material respects at and as
of Closing as if made on and as of the Closing, and (ii) the Buyer has
performed and complied in all material respects with all of its covenants and
obligations under this Agreement which are to be performed or complied with by
it before or at Closing.
9.4 Adverse Proceedings. No suit, action, claim or governmental proceeding
shall be pending against, and no order, decree or judgment of any court,
agency or other governmental authority shall have been rendered against the
parties or any party hereto which would render it unlawful, as of the Closing
Date, to effect the transactions contemplated by this Agreement in accordance
with its terms.
9.5 Approvals. All necessary federal, state and local governmental and
regulatory and other third party consents, waivers, and other approvals and
determinations required to be obtained with respect to the sale and/or
transfer of the Assets to the Buyer shall have been obtained.
9.6 Closing Documents and Payment of Consideration. The documents required
to be delivered by Buyer to Seller pursuant to this Agreement shall be
executed and delivered in a form reasonably acceptable to the Seller, and the
Buyer must have paid the Purchase Price and the consideration contemplated
under the Noncompetition Agreement.
9.7 Opinion of Counsel. The Buyer's counsel must have delivered to the
Selling Parties a satisfactory opinion of counsel, substantially in the form
of the opinion attached as Annex D.
9.8 Lease. The Buyer must have executed and delivered the Lease.
Article 10 - Termination of Agreement
10.1 Termination Events. This Agreement may, by notice given prior to or at
the Closing, be terminated:
(a) by either the Buyer or the Seller if a material breach of any provision
of this Agreement has been committed by the other party and such breach has
not been either cured or waived prior to the Closing Date or any extension
thereof;
(b) (i) by the Buyer if any of the conditions in Article 8 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of the Buyer to comply with
its obligations under this Agreement) and the Buyer has not waived such
condition on or before the Closing Date; or
(ii) by the Seller, if any of the conditions in Article 9 has not been
satisfied of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of the Seller to comply
with their obligations under this Agreement) and the Seller has not waived
such condition on or before the Closing Date;
(c) by mutual consent of the Buyer and the Seller; or
(d) by either the Buyer or the Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before February
6, 1998, or such later date as the parties may agree upon.
10.2 Effect of Termination. Each party's right of termination under
paragraph 10.1 is in addition to any other rights it may have under this
Agreement or otherwise, and the exercise of a right of termination will not be
an election of remedies. If this Agreement is terminated pursuant to
paragraph 10.1, all further obligations of the parties under this Agreement
will terminate; provided, however, that if this Agreement is terminated by a
party because of the breach of the Agreement by the other party or because one
or more of the conditions to the terminating party's obligations under this
Agreement is not satisfied as a result of the other party's failure to comply
with its obligations under this Agreement, the terminating party's right to
pursue all legal remedies will survive such termination unimpaired.
Article 11 - Indemnification
11.1 Survival; Right to Indemnification not Affected by Knowledge.
(a) All representations, warranties, covenants and obligations in this
Agreement will survive the Closing. The representations of the parties in
paragraphs 4.1, 4.5 and 5.1 will survive indefinitely. The representation of
the Seller in paragraph 4.4 will survive for the applicable statute of
limitations. All other representations and warranties of the parties will
survive for a period of two years after the Closing Date.
(b) The right to indemnification, payment of damages or other remedy based
on the representations, warranties, covenants, and obligations of the parties
will not be affected by any investigation conducted with respect to, or any
knowledge acquired (or capable of being acquired) at any time, whether before
or after the execution and delivery of this Agreement or the Closing Date,
with respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant, or obligation.
11.2 Indemnification of the Buyer. Each of the Selling Parties, jointly and
severally, agrees to indemnify, defend, and hold the Buyer harmless from and
against, and agrees to pay to the Buyer the full amount of, any loss, claim,
damage, liability or expense (including reasonable attorneys' fees) resulting
to the Buyer, either directly or indirectly, from (i) any inaccuracy in any
representation or warranty, or any breach of any covenant or agreement, made
by the Seller, or actions, suits, proceedings, claims, demands, assessments,
judgments, costs and expenses (including reasonable attorneys' fees) relating
to the foregoing, (ii) any liability arising out of the sales tax audit of the
Seller by the State of Connecticut, (iii) the claims described on Schedule
4.13, (iv) any claims by the Seller's employees that such employees are
entitled as a result of representations made by the Seller's management prior
to the Closing Date to any additional compensation, bonuses or benefits
arising out of the transactions contemplated by this Agreement, (v) any audit
or investigation by Medicaid or federal Medicare authorities concerning the
operation of the Seller's business before the Closing or any amounts paid to
the Seller before the Closing, or any assessment, adjustments or offsets made
against the Seller or its Assets as a result of such an audit or
investigation, (vi) any federal or state income tax audit or payment of any
tax deficiency, additional tax due, interest or penalties, in each case with
respect to tax periods ending on or before the Closing Date, or (vii) any
default by the Selling Parties under their Noncompetition Agreement, or any
default by ▇▇▇▇▇▇▇ ▇▇▇▇▇ under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Noncompetition Agreement.
11.3 Indemnity of the Seller. The Buyer agrees to indemnify, defend and
hold the Seller harmless from and against, and agrees to pay to the Seller the
full amount of, any loss, claim, damage, liability or expense (including
reasonable attorneys' fees) resulting to the Seller, either directly or
indirectly, from (i) any inaccuracy in any representation or warranty, or any
breach of any covenant or agreement, made by the Buyer and contained in this
Agreement, or actions, suits, proceedings, claims, demands, assessments,
judgments, costs and expenses (including reasonable attorneys' fees) relating
to the foregoing, (ii) any claim arising out of or related to the conduct of
the Business after the Closing, (iii) the Buyer's failure to pay, discharge or
perform any liabilities or obligations assumed by the Buyer with respect to
the Assumed Contracts or otherwise, or (iv) any breach by the Buyer of its
obligations under this Agreement or the Lease.
11.4 Indemnification Limitations. Except for indemnification claims arising
from a breach of a representation and warranty in paragraphs 4.1, 4.5 and 5.1,
or the indemnification obligations set forth in items (ii) through (vii) in
paragraph 11.2, no claim for indemnification under this Agreement will be made
by either party unless and until the aggregate amount of indemnifiable losses
exceeds $25,000.00, and then for only the amount in excess of $25,000.00.
The Seller's liability to the Buyer for indemnification will not exceed the
Purchase Price. Except for claims made prior to the expiration of the
applicable survival period, (i) the Buyer's right to indemnification with
respect to a breach of a representation and warranty shall terminate upon
expiration of the applicable survival period in paragraph 11.1(a), (ii) the
Buyer's right to indemnification with respect to the indemnification
obligations set forth in items (ii) through (iv) in paragraph 11.2 will
survive indefinitely, (iii) the Buyer's right to indemnification with respect
to the indemnification obligation set forth in item (vi) of paragraph 11.2
will expire upon expiration of the applicable statute of limitations, and (iv)
the Buyer's right to indemnification with respect to the indemnification
obligation set forth in item (vii) of paragraph 11.2 will expire upon
expiration of the term of the applicable noncompetition agreement.
11.5 Notice of Claim. If any claim is made against a party hereto that, if
sustained, would give rise to a right of indemnity under this Article 11, the
party having the claim made against it ("Indemnitee") shall give the other
party ("Indemnitor") notice thereof (specifying the nature and amount of the
claim and giving Indemnitor the right to contest the claim) within 15 days of
becoming aware of such claim ("Notice of Claim").
11.6 Right to Contest. Indemnitee shall afford Indemnitor the
opportunity, at Indemnitor's own expense, to assume the defense or settlement
of any such claim, with its own counsel. In connection therewith, the
Indemnitee shall cooperate fully to make available all pertinent information
under its control and shall have the right to join in the defense, at its own
expense, with its own counsel. If Indemnitor does not elect to undertake the
defense of a claim on the terms provided below, Indemnitee shall be entitled
to undertake the defense or settlement of the claim at the expense of and for
the account and risk of Indemnitor. Indemnitor shall have the right to assume
the entire defense of a claim hereunder provided that (i) Indemnitor gives
written notice of such desire (the "Notice of Defense") to Indemnitee within
15 days after Indemnitor's receipt of the Notice of Claim; (ii) Indemnitor's
defense of such claim shall be without cost to Indemnitee or prejudice to
Indemnitee's rights under this Article 11; (iii) counsel chosen by Indemnitor
to defend such claim shall be reasonably acceptable to Indemnitee; and (iv)
Indemnitor shall bear all costs and expenses in connection with the defense
and settlement of such claim; (v) Indemnitee shall have the right to receive
periodic reports from Indemnitor and Indemnitor's counsel; and (vi) Indemnitor
will not, without Indemnitee's written consent, settle or compromise any claim
or consent to any entry of judgment which does not include the unconditional
release by claimant or plaintiff of all liability with respect to the claim.
11.7 Exclusive Remedy. Subject to the next succeeding sentence, all claims
made by virtue of the representations, warranties, covenants and agreements
contained in, or otherwise made in connection with, this Agreement shall be
made under, and subject to the limitations set forth in, this Article 11,
which, from and after the Closing Date, will be the exclusive remedy for any
party hereto for any breach of this Agreement or other claim arising hereunder
or in connection with the transactions contemplated hereby or the conduct of
the Business, and each party hereby waives the right to assert any other
remedy. The immediately preceding sentence will not limit any right of any
party under the Lease or the Noncompetition Agreement or any right of any
party hereto to seek equitable relief (including, without limitation, specific
performance) in respect of any breach of any covenant or other agreement
contained herein or in the Noncompetition Agreement or ▇▇▇▇▇▇▇ ▇▇▇▇▇
Noncompetition Agreement, and will not limit the Seller's right to seek
damages under this Article 11 for a default in the Buyer's obligation, subject
to the terms and conditions of this Agreement, to pay the Purchase Price.
Article 12 - Other Provisions
12.1 Notices. All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to any of the Selling Parties:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
City Place ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Buyer:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ PLLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
12.2 Waivers. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or
partial exercise of any such right, power, or privilege will preclude any
other or further exercise of such right, power, or privilege or the exercise
of any other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of
the claim or right unless in writing signed by the other party; (b) no waiver
that may be given by a party will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on one party
will be deemed to be a waiver of any obligation of such party or of the right
of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement.
12.3 Expenses. Each party will be responsible for its respective expenses
incurred in connection with the transactions contemplated by this Agreement.
12.4 Headings; Interpretation. The headings in this Agreement have been
included solely for ease of reference and will not be considered in the
interpretation or construction of this Agreement. All references herein to
the masculine, neuter or singular will be construed to include the masculine,
feminine, neuter or plural, as appropriate.
12.5 Annexes and Schedules. The Schedules to this Agreement are incorporated
herein by reference and expressly made a part hereof.
12.6 Entire Agreement. All prior negotiations and agreements by and among
the parties hereto with respect to the subject matter hereof are superseded by
this Agreement, and there are no representations, warranties, understandings
or agreements with respect to the subject matter hereof other than those
expressly set forth in this Agreement or on any Schedule delivered in
connection with this Agreement. No change, modification, addition or
amendment of this Agreement shall be enforceable unless in writing and signed
by the party against whom enforcement is sought.
12.7 Governing Law. This Agreement will be governed by, and construed and
interpreted in accordance with, the laws of the Commonwealth of Kentucky,
without regard to or application of its conflicts of law principles.
12.8 Brokers. The parties covenant and agree with one another that they have
not dealt with any broker or finder in connection with any of the transactions
contemplated in this Agreement and, insofar as they know, no broker or other
person is entitled to a commission or finders' fee in connection with these
transactions. Each party will indemnify and hold the other parties harmless
from and against any claim by any agent or broker claiming by or through it
for any fee or other compensation due or allegedly due that broker or agent.
12.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
12.10 Severability. If any provision of this Agreement or its application
will be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of all other applications of that provision, and
of all other provisions and applications hereof, will not in any way be
affected or impaired. If any court will determine that any provision of this
Agreement is in any way unenforceable, such provision will be reduced to
whatever extent is necessary to make such provision enforceable.
12.11 Benefit and Binding Effect. This Agreement will be binding upon and
will inure to the benefit of the parties to this Agreement and, as applicable,
their respective heirs, executors, administrators, personal representatives,
successors and assigns; provided, however, that no party to this Agreement
will assign his or its rights or obligations hereunder without the express
written consent of the other parties, which consent will not be unreasonably
withheld. Nothing expressed or referred to in this Agreement will be
construed to give any person other than the parties to this Agreement any
legal or equitable right, remedy, or claim under or with respect to this
Agreement or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and assigns.
12.12 Submission to Jurisdiction. The parties to this Agreement hereby
irrevocably submit to the non-exclusive jurisdiction of any State or Federal
court sitting in Jefferson County, Kentucky and Hartford County, Connecticut
in any action or proceeding arising out of or relating to this Agreement, and
hereby irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in such court. The parties acknowledge
and agree that the Buyer may bring and maintain an action in the courts in
Jefferson County, Kentucky and the Seller may bring and maintain an action in
the courts in Hartford County, Connecticut. The parties hereby irrevocably
waive, to the fullest extent they may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. The
parties irrevocably consent to the service of any and all process in any such
action or proceeding by the delivery of copies of such process at their
respective addresses specified in paragraph 18. The parties agree that a
final judgment in any such action or proceeding may be enforced in other
jurisdictions by suit on the judgement or in any other manner provided by law.
12.13 Further Assurances. From time to time after the Closing at another
party's request and without further consideration, a party will execute and
deliver such further instruments of conveyance, assignment and transfer, and
take such other actions as the requesting party may reasonably request, in
order to more effectively convey and transfer any of the Assets. In addition,
any monies collected by a party which are due and payable to another party
will be promptly remitted to such party upon receipt thereof.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date first set forth above, but actually on the dates set forth below.
ADULT DAYCARE OF AMERICA, INC.
By___________________________________
Title:_________________________________
Date:_________________________________
HOME CARE SOLUTIONS, INC.
By__________________________________
Title:________________________________
Date:________________________________
_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Date:_________________________________
LIST OF ANNEXES AND SCHEDULES
Annex A - Noncompetition Agreement
Annex B - Opinion of Seller's Counsel
Annex C - Lease
Annex D - Opinion of Buyer's Counsel
Annex E - ▇▇▇▇▇▇▇ ▇▇▇▇▇ Noncompetition Agreement
Schedule 1.1 - Excluded Assets
Schedule 1.3 - Contracts
Schedule 2.2 - Prorated Expenses
Schedule 2.3 - Purchase Price Allocation
Schedule 4.6(b) - Operation of Business
Schedule 4.7 - Insurance
Schedule 4.9 - Governmental Approvals
Schedule 4.11 - Contracts, Consents
Schedule 4.12 - Violations of Law
Schedule 4.13 - Litigation
Schedule 4.16 - ERISA Matters
Schedule 4.20 - Consent
Schedule 4.22 - Licenses, Etc.
AMENDMENT NO. 1 TO THE ASSETS PURCHASE AGREEMENT
This is an Amendment No. 1 to the Assets Purchase Agreement dated as of
January 26, 1998 (the "Agreement"), by and among (i) Adult Daycare of America,
Inc., a Delaware corporation (the "Buyer"), (ii) Home Care Solutions, Inc., a
Connecticut corporation (the "Seller"), and (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Shareholder"). The Seller and the Shareholders will be referred to
collectively as the "Selling Parties").
THE PARTIES INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS:
1. Article 4 of the Agreement is amended to add the following
representation: "4.23 Solvency. The Seller is currently solvent and will be
solvent after the consummation of the transactions contemplated by this
Agreement. The consummation of the transactions contemplated by this
Agreement will not constitute a fraudulent conveyance."
2. Article 11 is amended to add the following indemnification obligation of
each of the Selling Parties to paragraph 11.2: "(viii) any claim against the
Buyer by creditors of the Seller, or a trustee in bankruptcy with respect to
the Seller." The indemnification obligation in the previous sentence will
survive the Closing indefinitely and will not be subject to the
indemnification limitations in paragraph 11.4 of the Agreement.
3. The Agreement, as modified by this Amendment No. 1, remains in full force
and effect and is a binding obligation of the parties to such Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of February 1,
1998.
ADULT DAYCARE OF AMERICA, INC.
By___________________________________
▇▇▇▇ ▇▇▇▇▇, Vice-President
HOME CARE SOLUTIONS, INC.
By__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇