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Title: |
Asset Purchase Agreement |
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Entities: |
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Date: |
2005 |
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Size: |
157KB total |
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Price: |
$45 |
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ID: |
#821447 |
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ASSET PURCHASE AGREEMENT
BY AND AMONG
PAINCARE HOLDINGS, INC.,
PAINCARE SURGERY CENTERS III, INC.,
CENTER FOR PAIN MANAGEMENT ASC, LLC,
AND ITS
MEMBERS
Dated as of September 26, 2005
TABLE OF CONTENTS
Page
1.
PURCHASE AND SALE OF ASSETS
1
1.1
Assets to be Transferred
1
1.2
Excluded Assets
4
2.
ASSUMPTION OF LIABILITIES
4
2.1
Liabilities to be Assumed
4
2.2
Liabilities Not to be Assumed
5
2.3
Taxes Arising from Transaction
5
2.4
Income and Franchise Taxes
5
2.5
Product, Medical Malpractice and Service Liability
5
2.6
Litigation Matters
5
2.7
Infringements
5
2.8
Transaction Expenses
5
2.9
Liability For Breach
5
2.10
Liabilities to Affiliates
6
2.11
Violation of Laws or Orders
6
3.
PURCHASE PRICE - PAYMENT
6
3.1
Purchase Price Consideration
6
3.2
Closing Consideration
6
3.3
Payment of Closing Consideration
6
3.4
Closing Time Adjustments
7
3.5
Promissory Note and Guaranty
9
3.6
Allocation of Purchase Price
9
3.7
Escrow Agreement and Transition Management Services
9
4.
REPRESENTATIONS AND WARRANTIES OF SELLERS
10
4.1
Organization; Authority
10
4.2
No Violation
10
4.3
Appraisal Reports
11
4.4
Compliance With Laws and Orders
11
4.5
Title to and Condition of Properties
12
4.6
Insurance
13
4.7
Contracts and Commitments
14
4.8
Employee Benefit Plans
16
4.9
Intellectual Property
16
4.10
Product Warranty and Product Liability
16
4.11
Assets Necessary to Business
17
4.12
No Brokers or Finders
17
4.13
Financial Statements
17
4.14
Conduct Since Date of Recent Balance Sheet
17
4.15
Company and Affiliates
18
4.16
Liabilities
18
4.17
Accounts Receivable
19
4.18
Environmental Matters
19
4.19
Personnel
20
4.20
Bank Accounts
21
4.21
Tax Matters
21
4.22
Litigation
22
4.23
Health Care Compliance
22
4.24
Fraud and Abuse
22
4.25
Rates and Reimbursement Policies
23
4.26
Medical Staff
23
4.27
Medical Providers
24
4.28
Third-party Payors
25
4.29
Disclosure
25
4.30
Corporate Practice or Fee Splitting
25
4.31
Staff Privileges
25
4.32
Securities Representation
25
4.33
HIPAA
27
4.34
Improper and Other Payments
27
4.35
Medical Waste
27
4.36
Transfer of Custody of Patient Medical Records
28
4.37
Certain Representations with respect to the Centers
28
5.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
28
5.1
Organization of PainCare and Subsidiary
29
5.2
Authorization of Transaction
29
5.3
PainCare Shares
29
5.4
No Conflicts; Consents
29
5.5
Consents
30
5.6
Brokers
30
5.7
Full Disclosure
30
6.
RESTRICTIVE COVENANTS
30
6.1
Restricted Period
30
6.2
Confidentiality, Press Releases, and Public Announcements
32
6.3
Bulk Sales Compliance
33
7.
FURTHER COVENANTS OF SELLERS
33
7.1
Access to Information and Records
33
7.2
Maintain Organization
33
7.3
No Breach
33
7.4
Maintenance of Insurance
33
7.5
Consents
33
7.6
Other Action
33
7.7
Disclosure
34
8.
CONDITIONS PRECEDENT TO PURCHASERS OBLIGATIONS
34
8.1
Representations and Warranties True on the Closing Time
34
8.2
Compliance With Agreement
34
8.3
Absence of Litigation
34
9.
CONDITIONS PRECEDENT TO SELLERS OBLIGATIONS
35
9.1
Representations and Warranties True on the Closing Time
35
9.2
Compliance With Agreement
35
10.
CLOSING
35
10.1
Closing
35
10.2
Documents to be Delivered by the Sellers
36
10.3
Documents to be Delivered by the Purchaser
37
11.
POST-CLOSING COVENANTS
37
11.1
General
37
11.2
Option Agreement
38
11.3
Tax Returns
38
11.4
Transition
38
11.5
Litigation Support
38
12.
REGISTRATION
38
13.
SURVIVAL AND INDEMNIFICATION
38
13.1
Survival of Representations and Warranties
38
13.2
Indemnification Provisions for the Benefit of PainCare and the Subsidiary
39
13.3
Indemnification Provisions for the Benefit of the Sellers
39
13.4
Matters Involving Third Parties
39
13.5
Limitation
40
14.
MISCELLANEOUS
41
14.1
Disclosure Schedules
41
14.2
Assignment; Parties in Interest
41
14.3
Notice
41
14.4
Entire Agreement
42
14.5
Counterparts
42
14.6
Headings
43
14.7
Governing Law; Jurisdiction
43
14.8
Attorneys Fees
43
14.9
Amendments and Waivers
43
14.10
Severability
43
14.11
Expenses
43
14.12
Further Assurances
43
14.13
Construction
44
14.14
Survival
44
14.15
Incorporation of Exhibits and Schedules
44
15.
DEFINITIONS
44
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the Agreement) is entered into effective the 26th day of September, 2005 (the Execution Date), by and among MARK H. COLEMAN, M.D. (Dr. Coleman), PRABAAL DEY, M.D. (Dr. Dey), MARC A. LOEV, M.D. (Dr. Loev), LESTER A. ZUCKERMAN, M.D. (Dr. Zuckerman), CENTER FOR PAIN MANAGEMENT ASC, LLC, a Maryland limited liability company (the Company), PAINCARE HOLDINGS, INC., a Florida corporation (PainCare) and its wholly owned subsidiary, PAINCARE SURGERY CENTERS III, INC., a Florida corporation (the Subsidiary). Dr. Dey, Dr. Loev, Dr. Coleman and Dr. Zuckerman are sometimes referred to herein as the Members. The Company and the Members are sometimes referred to herein as the Sellers and PainCare and the Subsidiary are sometimes referred to herein as the Purchaser. The Purchaser and the Sellers are sometimes referred to herein individually as a Party and collectively as the Parties.
W I T N E S S E T H:
A.
The Company owns and operates four (4) Medicare certified and state licensed ambulatory surgical centers that are located at the following locations: (i) 11921 Rockville Pike, Suite 505, Rockville, Maryland 20852; (ii) 3901 Greenspring Avenue, Suite 304, Baltimore, Maryland 21211; (iii) 1150 Professional Court, Suite L, Hagerstown, Maryland 21740; and (iv) 305 Hospital Drive, Suite 304, Glen Burnie, Maryland 21061 (collectively, the Centers).
B.
The Company desires to sell and the Purchaser desires to buy substantially all of the assets, properties, rights, and claims of the Company and the Centers, which assets, properties, rights and claims shall collectively be referred to herein as the Business.
C.
The Members own one hundred percent (100%) of the total issued and outstanding membership interests of the Company, free and clear of any and all Liens (as defined in Section 4.5(a) below).
NOW THEREFORE, in consideration of the mutual promises and covenants herein contained and the sum of ten dollars ($10.00) and other good and valuable consideration paid by the Purchaser to the Company, the receipt and sufficiency of which are hereby acknowledged by the Company, it is mutually covenanted and agreed by the parties hereto as follows:
1.
PURCHASE AND SALE OF ASSETS
1.1
Assets to be Transferred. Subject to the terms and conditions of this Agreement, on the Closing Time (as defined in Section 10.1 below), and except as otherwise stated, the Subsidiary shall purchase, and the Company shall sell, transfer, convey, assign, and deliver to Subsidiary, all of the Companys Business rights, claims and assets (of every kind, nature, character and description, whether real, personal or mixed, tangible or intangible, accrued, contingent or otherwise, and wherever situated other than the Excluded Assets specified in Section 1.2 below) which are used, held for use or acquired or developed for use by the Company in the Business, or developed in the course of conducting the Business or by Persons employed by the Company in the Business (collectively the Purchased Assets), free and clear of any and all Liens other than those Liens set forth on Disclosure Schedule 4.5(a). The Purchased Assets shall include, without limitation, all the following assets or rights of the Company, to the extent so used, held, acquired or developed in the Business:
(a)
Cash and Cash Equivalents and Accounts Receivable. All cash, cash equivalents, and the Accounts Receivable of the Company as of the Closing Time, including without limitation those described in Disclosure Schedule 1.1(a);
(b)
Personal Property. All of the Companys rights in, to and under all, instruments, equipment, furniture, machinery and other items of tangible personal property including, without limitation, the personal property leases described in the Disclosure Schedule 1.1(b);
(c)
Inventory. All inventories including, without limitation, supplies, merchandise and durable medical equipment, together with related packaging and delivery materials (collectively the Inventory);
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