Attached files
| file | filename |
|---|---|
| 8-K - HealthWarehouse.com, Inc. | v211648_8k.htm |
| EX-2.2 - HealthWarehouse.com, Inc. | v211648_ex2-2.htm |
| EX-99.1 - HealthWarehouse.com, Inc. | v211648_ex99-1.htm |
EXHIBIT
2.1
ASSET
PURCHASE AGREEMENT
This
Agreement is made and entered into as of the 14th day of
February, 2011, by and among Hocks Pharmacy, Inc., an Ohio corporation
(“Seller"), Dominic Bartone, Deborah Bartone and Michael Nardini (“Owners”, or
individually an “Owner”), being all of the shareholders of Seller, and Hocks
Acquisition Corporation (“Purchaser”), an Ohio corporation which is a
wholly-owned subsidiary of HealthWarehouse.com, Inc., a Delaware corporation
(“Parent”).
BACKGROUND:
A. Seller
is engaged, among other things, in conducting the “Business” (as hereafter
defined); and
B. Purchaser
desires to purchase, Seller desires to sell, and the Owners desire to have
Seller sell, certain assets owned by Seller and used in the conduct of the
Business, all upon the terms and conditions hereafter set forth.
AGREEMENT:
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Section
1. Certain Definitions.
In
addition to certain terms defined elsewhere in this Agreement, the following
terms shall have the following respective meanings:
1.1 “Acquisition”
shall mean the purchase by Purchaser of the Assets and the consummation of the
transactions contemplated by this Agreement.
1.2 “Agreement”
shall mean this Asset Purchase Agreement and all Schedules and Exhibits hereto
and amendments hereof.
1.3 “Assets”
shall have the meaning set forth in Section 2.1 hereof.
1.4 “Books
and Records” shall mean all data, books, records, files, papers, sales and
advertising materials, and related materials used or held for use solely in
connection with the Assets.
1.5 “Business”
shall mean Seller’s and its affiliates’ virtual internet pharmacy business
(including the sale of over-the-counter medicines and medical
supplies).
1.6 “Closing”
and “Closing Date” shall have the respective meanings set forth in Section 3.1
hereof.
1
1.7 “Core
Representations” shall mean the representations made in the following Sections
of this Agreement: 4.1 (Organizational Information and Standing), 4.2 (Authority
and Capacity), 4.5.1 (Assets - title), 4.6 (Tax Matters), 4.9 (Brokerage Fees),
5.1 (Organization and Standing), 5.2 (Authority and Capacity), and 5.5
(Brokerage Fees).
1.8 "Governmental
Authority" shall mean any federal, state, regional, county, or local person or
body having governmental or quasi-governmental authority or a sub-division
thereof.
1.9 “Intangible
Property Transaction” shall mean, the reverse merger of Purchaser into Seller’s
affiliate, Hocks.com, Inc., an Ohio corporation (“Hocks.com”) , as a result of
which Parent will become the indirect owner of all of the tangible and
intangible property used in conducting the Business.
1.10 “Knowledge,”
“best of knowledge,” “aware” and similar expressions of cognition shall mean the
knowledge of the person in question after reasonable inquiry.
1.11 “Losses”
shall mean all costs, demands, losses, claims, liabilities, fines, penalties,
assessments, damages (whether or not “punitive” in nature), expenses, amounts
paid in settlement, court costs (including court-awarded interest), and
reasonable attorneys’ fees and disbursements of counsel.
1.12 “Material
Adverse Effect” shall mean (a) with respect to any event, matter, condition, or
circumstance that has occurred, an effect that is, or (b) with respect to any
event, matter, condition, or circumstance that may reasonably be expected to
occur, an effect that, if it did occur would be, materially adverse to the
condition (financial or otherwise) of the Business or the Assets.
1.13 “Purchased
Inventory” shall mean all inventory, prescription and over-the-counter drugs and
supplies, work-in-process, parts, materials and samples, owned by Seller as of
the Closing Date and to be sold or used by Seller in the conduct of the
Business, wherever located, including, without limitation, the inventory listed
in Schedule 1.13 hereto, together with all rights of Seller against suppliers of
such inventory.
1.14 “Security
Interest” shall mean any mortgage, pledge, security interest, encumbrance,
charge, lien or adverse claim.
1.15 "Tangible
Personal Property" shall mean all machinery, fixtures, tools, furniture, office
equipment, computer equipment and other items of tangible personal property
(other than Purchased Inventory) of every kind owned or used by Seller as of the
Closing Date in the conduct and operation of the Business (wherever located and
whether or not carried on Seller's books), including, without limitation, the
tangible personal property listed in Schedule 1.15 hereto, together with any
express or implied warranty by the manufacturers or sellers or lessors of any
item or component part thereof and all maintenance records and other documents
relating thereto.
2
Section
2. Purchase and Sale.
2.1 Assets
Purchased From Seller. Subject to the terms and conditions of
this Agreement, Seller does hereby grant, bargain, sell, convey, assign,
transfer and deliver unto Purchaser, its successors and assigns forever, all of
Seller’s right, title and interest in, to and under the following assets
relating to the Business (collectively, the “Assets”), to have and to hold the
same, unto Purchaser, its successors and assigns forever:
2.1.1 The
Purchased Inventory;
2.1.2 The
Books and Records; and
2.1.3 The
Tangible Personal Property.
2.2 Excluded
Assets. The parties acknowledge and agree that except for the
Assets specified in Section 2.1 hereof, all other assets and properties of
Seller (the “Excluded Assets”) shall remain the property of Seller. The Excluded
Assets shall include, without limitation, the intangible property owned or used
in the conduct of the Business which is part of the Intangible Property
Transaction.
2.3 Assumed
Liabilities. Subject to the terms and conditions of this
Agreement, Purchaser hereby assumes on the Closing Date, and agrees to
thereafter perform, only the following obligations of Seller: any liability or
obligation relating to the ownership or use of the Assets on and after the
Effective Date as defined in Section 3.1 hereof (the “Assumed
Liabilities”).
2.4 Excluded
Liabilities. The parties acknowledge and agree that except for
the Assumed Liabilities specified in Section 2.3 hereof, Purchaser shall not
assume or be responsible for any obligations or liabilities of Seller of any
kind or character, whether known or unknown, fixed or contingent, absolute,
matured or unmatured (the “Excluded Liabilities”). The Excluded
Liabilities shall include, without limitation:
2.4.1 any
tax obligations of Seller whatsoever, whether by reason or operation of the
Business, consummation of the Acquisition, or otherwise;
2.4.2 any
liability or claim relating to the operation of the Business or the ownership or
use of the Assets prior to the Closing, including, without limitation, any
liability or claim relating to breach of warranty, negligence, or breach of
contract by Seller; and
2.4.3 any
indebtedness for borrowed money, trade account payable, or other accrued
liability of Seller, including without limitation any indebtedness or other
amount owed by Seller to an Owner or any affiliate of an Owner.
3
2.5 Purchase
Price.
2.5.1 Subject
to the terms of this Agreement, Purchaser agrees to pay to Seller as the
purchase price of the Assets (the “Purchase Price”) $200,000.00.
2.5.2 The
parties agree that the Purchase Price shall be allocated among the Assets as set
forth in a Schedule 2.5.2 hereto. The parties agree that all tax and
informational returns relating to the Acquisition shall be completed and filed
on the basis of the foregoing allocations.
2.5.3 Subject
to the provisions of this Agreement, Purchaser shall pay the Purchase Price to
Seller in immediately available funds at the Closing, and Seller hereby
acknowledges the receipt of such amount.
Section
3. Closing.
3.1 Closing
and Closing Date. The closing for the Acquisition (the
“Closing”) has taken place simultaneous with the execution and delivery of this
Agreement. The date of such Closing is sometimes referred to in this Agreement
as the “Closing Date.” Notwithstanding the foregoing, the parties agree that to
the extent possible (i) the Acquisition shall be treated for all purposes as if
it had been consummated on February 1, 2011 (the “Effective Date”), (ii)
Purchaser shall be treated as the owner of the Assets and the Business as of the
Effective Date, and (iii) the results of the operations of the Business on and
after the Effective Date shall be attributed to Purchaser.
3.2 Deliveries
by Seller and Owners. At the Closing, Seller has (i) executed
and delivered this Agreement, including all Schedules hereto, (ii) delivered the
Books and Records to Purchaser, (iii) executed and delivered
such other good and sufficient instruments of conveyance and
transfer, in form and substance reasonably satisfactory to Purchaser and
Purchaser’s counsel, as shall be necessary to vest in Purchaser Seller’s title
and rights with respect to the Assets, and (iv) except to the extent waived by
Purchaser, delivered such consents as may be indicated in Schedule 4.10 hereto,
in form and substance satisfactory to Purchaser. At the Closing, each Owner has
executed and delivered this Agreement.
3.3 Deliveries
by Purchaser. At the Closing, Purchaser has executed and
delivered this Agreement, including all Schedules hereto, and delivered the
Purchase Price Payment.
3.4 [RESERVED]
Section
4. Representations and Warranties of Seller and Owners.
Seller
and the Owners hereby jointly and severally represent and warrant to Purchaser
as of the Closing Date as follows:
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4.1 Organizational Information
and Standing.
4.1.1 Seller
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Ohio. Schedule 4.1.1 (i) includes a correct and complete
list of the address of Seller’s chief executive office, the location of its
books and records, the locations of the Assets, and the locations of all of its
other places of business, and (ii) identifies Seller’s charter or organizational
number assigned by its jurisdiction of organization. The exact name of Seller
contained in its organizational documents filed with its jurisdiction of
organization is Hocks Pharmacy, Inc.
4.1.2 Schedule
4.1.2 hereto lists all of the issued and outstanding stock of Seller (“Seller
Stock”) and the owners thereof. All Seller Stock been duly authorized and
validly issued and is fully paid and nonassessable, and none of the Seller Stock
has been issued in violation of any law, regulation or policy of any
Governmental Authority, Seller’s organizational documents, the terms of any
agreement to which Seller or Owners are a party or are bound or the preemptive
rights of any individual, partnership, proprietorship, corporation, limited
liability company, joint venture, trust or other similar entity or Governmental
Authority or court. There are no warrants, options, rights,
convertible or exchangeable securities and other arrangements or commitments
authorized, issued or outstanding with respect to ownership interests in
Seller.
4.2 Authority
and Capacity. Each of Seller and the Owners has full legal
right, power, authority and capacity to enter into, execute and deliver this
Agreement and each of the other documents to be executed and delivered by Seller
or the Owners in connection with the transactions contemplated by this
Agreement, and to perform its or his obligations hereunder and thereunder and to
consummate the transactions contemplated to be consummated hereby and thereby.
This Agreement, and the consummation of the transactions contemplated hereby,
has been duly authorized by all requisite corporate action on the part of
Seller, and no other proceedings on the part of Seller are necessary to
authorize this Agreement and the transactions contemplated hereby.
4.3 Valid
and Binding Obligation. Each of this Agreement and the other
agreements and documents executed and delivered by Seller and the Owners in
connection with the transactions contemplated by this Agreement constitutes the
valid and binding obligation of Seller and the Owners, enforceable against
Seller and the Owners in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization and other similar laws affecting the rights of creditors
generally.
4.4 Execution,
Delivery and Performance. Neither the execution and delivery
of this Agreement, and the other documents, instruments and agreements
contemplated hereby, nor the consummation of the transactions contemplated
hereby and thereby, compliance by Seller and the Owners with any of the
provisions hereof and thereof, nor the performance by Seller and the Owners of
any acts contemplated hereby, will:
4.4.1 conflict
with or result in a breach of any of the provisions of the organizational
documents of Seller;
4.4.2 violate
any order, writ, injunction, or decree applicable to Seller, the Owners, the
Business or the Assets; or
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4.4.3 provided
that the consents specified in Schedule 4.10 hereto have been obtained (i)
violate or conflict with, or result in a breach of any provision of, (ii)
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, (iii) result in the termination of, (iv)
accelerate the performance required by, or (v) result in the creation of any
Security Interest upon any of the Assets under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
agreement, lease or other instrument or obligation to which Seller or Owners is
a party, or by which the Business or the Assets may be bound or
affected.
4.5 Assets.
4.5.1 Seller
has good title to all of the Assets free and clear of all Security Interests,
except for liens for current taxes not yet due and payable.
4.5.2 The
Tangible Personal Property constitutes all of the fixed assets, equipment and
supplies necessary to operate the Business as it is currently being conducted.
All items of Tangible Personal Property currently being used to operate the
Business are in good condition and serviceable for the purpose for which they
are being used.
4.5.3 All
of the Purchased Inventory is of a quality and quantity useable and saleable in
the ordinary course of business, and the quantity of each item of Purchased
Inventory is reasonable in light of the circumstances of the
Business.
4.6 Tax
Matters. Seller has duly and timely filed all federal, state,
local and other tax returns, estimates and reports required to be filed by it
and all such returns are, or will be when filed, true, complete and correct in
all material respects and Seller has paid or will pay all federal, state and
local income, profits, franchise, sales, use, occupation, property, excise and
other taxes, assessments and fees imposed upon Seller which are due and payable
on or prior to the Closing Date. Seller and the Owners jointly and severally
guarantee timely payment of all taxes and withholdings that should have been
paid as a result of Seller’s operations through Closing.
4.7 Litigation. There
are no actions, suits, investigations or proceedings concluded or pending in any
court or by or before any governmental agency to which Seller or any Owner is a
party, or, to the best of Seller’s and the Owners’ knowledge, otherwise
affecting the Assets or Business or the ability of Seller to perform its
obligations under this Agreement, and, to the best of Seller’s and the Owners’
knowledge, there is no litigation, proceeding, claim, grievance or controversy
threatened against Seller or any Owner with regard to or affecting the Assets or
Business.
4.8 Compliance
With Laws. Seller has complied with all laws and regulations
with which it is or was required to comply in connection with its ownership of
the Assets and operation of the Business, the enforcement for lack of compliance
which would not have a Material Adverse Effect on the ownership of the Assets or
the conduct of the Business.
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4.9 Brokerage
Fees. No person or entity is entitled to any brokerage or
finder’s fee or other commission from Seller or any Owner with respect to this
Agreement or the transactions contemplated hereby on account of any agreement or
commitment made by Seller or any Owner.
4.10 Approvals. Schedule
4.10 hereto sets forth a complete list of the consents and approvals of third
parties required to be obtained by Seller and/or Owners in order to consummate
the Acquisition.
4.11 Full
Disclosure. No representation or warranty made by Seller or
Owners contained in this Agreement or any certificate, document or other
instrument furnished or to be furnished by Seller or Owners pursuant hereto
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact required to make any statement contained
herein or therein not misleading. Neither Seller nor Owners are aware of any
impending or contemplated event or occurrence that would cause any of the
foregoing representations not to be true and complete on the date of such event
or occurrence as if made on that date.
Section
5. Representations and Warranties of Purchaser.
Purchaser
hereby represents and warrants to Seller and Owners as of the Closing Date as
follows:
5.1 Organization
and Standing. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Ohio.
5.2 Authority
and Capacity. Purchaser has full legal right, power and
authority to enter into, execute and deliver this Agreement and each of the
other agreements and documents to be executed and delivered by Purchaser in
connection with the transactions contemplated by this Agreement, and to perform
its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. This Agreement, and the consummation of the
transactions contemplated hereby, have been duly authorized by all requisite
corporate action on the part of Purchaser, and no other proceedings on the part
of Purchaser are necessary to authorize this Agreement and the transactions
contemplated hereby.
5.3 Valid
and Binding Obligation. Each of this Agreement and the other
agreements and documents executed and delivered by Purchaser in connection with
the transactions contemplated by this Agreement constitutes the valid and
binding obligations of Purchaser, enforceable against Purchaser in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization and other similar laws affecting the
rights of creditors generally.
5.4 Execution,
Delivery and Performance. Neither the execution and delivery
of this Agreement, and the other documents, instruments and agreements
contemplated hereby by Purchaser, nor the consummation of the transactions
contemplated hereby and thereby, nor the compliance by Purchaser with any of the
provisions hereof and thereof, will:
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5.4.1 conflict
with or result in any breach of any provision of the organizational documents of
Purchaser;
5.4.2 violate
any order, writ, injunction, or decree applicable to Purchaser; or
5.4.3 (1)
violate or conflict with, or result in a breach of any provision of, (2)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, (3) result in the termination of, (4)
accelerate the performance required by, or (5) result in the creation of any
Security Interest upon any of the properties or assets of Purchaser under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, agreement, lease or other instrument or obligation to
which Purchaser is a party, or by which Purchaser may be bound or
affected.
5.5 Brokerage
Fees. No person or entity is entitled to any brokerage or
finder’s fee or any commission from Purchaser with respect to this Agreement or
the transactions contemplated hereby on account of any agreement or commitment
made by Purchaser.
5.6 Litigation. There
is no action, suit, proceeding or investigation known to Purchaser which is
pending or threatened which questions the validity or propriety of this
Agreement or any action taken or to be taken by Purchaser in connection with
this Agreement.
Section
6. Certain Additional Covenants.
6.1 Access. Through
the Closing Date, Seller has provided Purchaser and its agents, accountants and
legal counsel with reasonable access to the Assets under circumstances
reasonably acceptable to the parties. Following the Closing Date, Purchaser
shall provide Seller and its agents, accountants and legal counsel with
reasonable access to the Assets for purposes of (i) enforcing any right or
performing any obligation under this Agreement, (ii) preparing tax returns, and
(iii) evaluating, prosecuting and/or defending any legal actions or potential
legal actions.
6.2 Payment
of Excluded Liabilities. After the Closing Date, Seller shall
pay all Excluded Liabilities promptly and in any event as and when they are
due.
6.3 Payments
Due to Another Party. Seller and Purchaser agree that if
subsequent to the Closing Date, either party shall receive any payment due to
the other party, each shall promptly remit the same to the other, and if either
party shall pay any obligation of the other party not assumed by it hereunder,
the payment shall be for the account of the party to whom the obligation
relates, and such benefited party shall promptly reimburse the other party for
any such payment.
6.4 Removal
of Assets. Purchaser shall have a reasonable
period of time after the Closing Date to remove the Assets from Seller’s
business premises, and Seller shall provide Purchaser with reasonable access to
its business premises to remove the Assets.
8
Section
7. Nature and Survival of Representations and Warranties;
Indemnities.
7.1 Survival
of Representations and Warranties and Related Agreements. All
of the terms, conditions, warranties, representations, covenants, indemnities
and agreements contained in or made pursuant to this Agreement shall survive the
Closing as set forth below, notwithstanding any investigation made by or
knowledge of any of the parties to this Agreement or any of their respective
successors or assigns. Except as otherwise provided herein, the representations
and warranties to the extent not otherwise stated in this Agreement, shall
survive the Closing for a period of three (3) years after the Closing Date,
provided however that: (i) claims with respect to fraud and breaches of Core
Representations shall survive indefinitely; and (ii) in the case of claims
relating to litigation, such claims may be brought until the date that the
applicable statute of limitations has ended, after giving effect to all tolling
periods or extensions to such applicable statutes of limitations available at,
or imposed by, law or equity. All representations and warranties shall be
binding upon the parties to this Agreement, their successors and
assigns. All covenants of the parties that are to be performed after
Closing shall continue and expire in accordance with their respective
terms. If at the end of any of such period or term, a claim has been
asserted hereunder and still is pending or unresolved, such period or term shall
continue to survive until the claim finally is terminated or otherwise
resolved.
7.2 Indemnification
Obligations of Seller and the Owners. Seller and Owners jointly and
severally agree to indemnify and hold Purchaser and its affiliates, and their
respective officers, directors, employees and agents, and their respective
heirs, successors and assigns (collectively, the "Purchaser Group"), harmless
against, and to reimburse Purchaser Group for any Losses imposed on or incurred
by any of the Purchaser Group (a "Purchaser Loss") because of or arising from or
related to or in connection with: (i) any breach of any of Seller's or any
Owner’s representations or warranties under this Agreement or under any other
agreement referred to herein or contemplated hereby to which Seller or any Owner
is a signatory; (ii) any failure to perform or violation of any agreement or
covenant on the part of Seller or any Owner under this Agreement or under any
other agreement referred to herein or contemplated hereby to which Seller or any
Owner is a signatory; (iii) any Excluded Liabilities; and (v) any and all
actions, suits, proceedings, demands, assessments, judgments, out-of-pocket
costs and reasonable attorneys' fees (in preparation, at trial and on appeal) of
any nature incident to the foregoing.
7.3 Indemnification
Obligations of Purchaser. Purchaser agrees to indemnify
and hold Seller and Owners and their affiliates, and their respective officers,
directors, employees and agents, and their respective heirs, successors and
assigns (collectively, the "Owner Group"), harmless against, and to reimburse
Owner Group for any Losses imposed on or incurred by any of the Owner Group (an
"Owner Loss") because of or arising from or related to or in connection with:
(i) any breach of any of Purchaser’s representations or warranties under this
Agreement or under any other agreement referred to herein or contemplated hereby
to which Purchaser is a signatory; (ii) any failure to perform or violation of
any agreement or covenant on the part of Purchaser under this Agreement or under
any other agreement referred to herein or contemplated hereby to which Purchaser
is a signatory; (iii) any Assumed Liabilities; and (v) any and all actions,
suits, proceedings, demands, assessments, judgments, out-of-pocket costs and
reasonable attorneys' fees (in preparation, at trial and on appeal) of any
nature incident to the foregoing.
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7.4 Indemnification
Procedure.
7.4.1 Any
party claiming indemnification under this Section 8 (the “Claimant”) must
deliver (by courier or registered or certified mail, postage prepaid) to the
party from whom indemnity is sought (the “Indemnitor”) written notice (an
“Indemnity Notice”) of any claim under this Section 8 (an “Indemnification
Claim”) reasonably promptly after Claimant becomes aware of its existence. Upon
the written request of Indemnitor, Claimant must furnish to Indemnitor copies of
any documents specifically requested that directly relate to any Indemnification
Claim and are in the possession or control of Claimant. If any such
Indemnification Claim relates to a claim against Claimant by a third person or
entity, Indemnitor will have the right to negotiate, defend and/or settle such
claim; provided, however, that the Indemnitor will pay any and all losses,
costs, damages, claims, liabilities, or expenses relating to such negotiation,
defense, or settlement.
7.4.2 Within
forty-five (45) days after the receipt of an Indemnity Notice, Indemnitor may
dispute the validity of an Indemnification Claim by delivering written notice
(by courier or registered or certified mail, postage prepaid) of its dispute to
Claimant (a “Dispute Notice”). If Indemnitor does not dispute the
Indemnification Claim by delivering such a Dispute Notice, then it must pay to
Claimant the amount of damage, loss, cost or expense set forth in the Indemnity
Notice (including any reasonable fees and disbursements of Claimant or its
agents as set forth therein). If Indemnitor disputes the Indemnification Claim
by timely delivering a Dispute Notice, then no parties will commence any action
or proceeding in connection with the disputed Indemnification Claim for a period
of ninety (90) days after receipt of the Dispute Notice and will negotiate in
good faith and with reasonable diligence during such period to settle or
compromise the disputed Indemnification Claim. If the parties are unable to
resolve such dispute within such 90-day period, Claimant shall be entitled to
enforce such Indemnification Claim by exercising all legal rights and remedies
available to Claimant, including, without limitation, by commencing an action or
proceeding to enforce such Indemnification Claim.
7.5 Nonexclusive
Remedy. The indemnification provisions in this Agreement
shall not be deemed to preclude the exercise of any other rights or the pursuit
of any other remedies for the breach of this Agreement or with respect to any
misrepresentations or breaches of representations, warranties or covenants
contained in this Agreement.
Section
8. Miscellaneous.
8.1 Assignment. This
Agreement shall not be assignable by any of the parties without the prior
written consent of the other parties, and any such assignment purported to be
made without such consent shall be null and void. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
permitted successors and assigns.
8.2 Expenses. Except
as otherwise provided in this Agreement, each party to this Agreement shall pay
any and all fees and expenses that such party may incur in connection with the
negotiation, execution and Closing of the transactions contemplated by this
Agreement.
10
8.2 Amendment
and Waiver. This Agreement cannot be altered or otherwise
amended except pursuant to a writing signed by each of the parties hereto. No
provision of this Agreement may be waived unless in a writing signed by the
party against whom enforcement of the waiver is sought, and waiver of any one
provision of this Agreement shall not be deemed to be a waiver of any other
provision.
8.4 Notices. Any
and all notices or other communications required or permitted by this Agreement
or by law to be served on or given to any party hereto by any other party hereto
shall be, unless otherwise required by law, in writing and deemed duly served
and given when actually received either (i) in an electronic form readable by
the recipient, or (ii) when delivered by facsimile, or (iii) when delivered by
hand, by recognized express delivery services or via the United States mail,
certified or registered, return, receipt requested, postage prepaid, addressed
as follows, or at such different address as such party shall have theretofore
advised the other parties in writing:
If to Purchaser:
Hocks Acquisition
Corporation
100 Commerce Boulevard
Cincinnati, Ohio 45140
Attention: Lalit Dhadphale,
President
Fax: 513.354.2683
lalitd@hwareh.com
and a copy to:
Kohnen & Patton LLP
201 East Fifth Street
Suite 800
Cincinnati, Ohio 45202
Attention: Mark J. Zummo,
Esq.
Fax: 513.381.5823
mzummo@kplaw.com
If to Seller or Owners:
Dominic J. Bartone
535 South Dixie Drive
Vandalia, Ohio 45377
and a copy to:
Shipman, Dixon & Livingston Co.,
L.P.A.
215 West Water Street
Troy, Ohio 45373
Attn: Robert
Johnston, Esq.
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8.5 Counterparts. This
Agreement may be executed in more than one counterpart which shall, in the
aggregate, be deemed to be the original instrument and agreement between the
parties, and copies signed and transmitted electronically in a form readable by
the recipient or by facsimile are as binding as if the original was signed in
person.
8.6 Further
Assurances. Each party agrees to execute and deliver all such
other documents and to take all such other actions as another party may
reasonably request from time to time in order to fully implement the provisions
and purposes of this Agreement.
8.7 Construction
of Agreement. Any rule or provision of law which provides that
a contract or agreement shall be construed against the author of the contract or
agreement shall not apply to this Agreement, and the documents contemplated by
this Agreement.
8.8 Governing
Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Ohio, without giving effect to
any choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of
Ohio.
8.9 Jurisdiction;
Service of Process. Any legal
proceeding (“Proceeding”) arising out of or relating to this Agreement or the
Acquisition may be brought in the courts of the State of Ohio, County of
Hamilton, or if it has or can acquire jurisdiction, in the United States
District Court for the Southern District of Ohio, and each of the parties
irrevocably submits to the exclusive jurisdiction of each such court in any such
Proceeding, waives any objection it may now or hereafter have to venue or to
convenience of forum, agrees that all claims in respect of the Proceeding shall
be heard and determined only in any such court and agrees not to bring any
Proceeding arising out of or relating to this Agreement or the Acquisition in
any other court. The parties agree that either or both of them may
file a copy of this paragraph with any court as written evidence of the knowing,
voluntary and bargained agreement between the parties irrevocably to waive any
objections to venue or to convenience of forum. Process in any
Proceeding referred to in the first sentence of this section may be served on
any party anywhere in the world.
8.10 Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
ACTIONS ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
(Signatures appear on following
page)
12
IN WITNESS WHEREOF, the
parties have executed this Asset Purchase Agreement effective as of the day and
year first above written.
|
HOCKS
ACQUISITION CORPORATION
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|||
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By:
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/s/ Lalit Dhadphale
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||
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Name:
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Lalit Dhadphale
|
||
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Title:
|
President
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||
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HOCKS
PHARMACY, INC.
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|||
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By:
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/s/ Dominic Bartone
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/s/ Dominic Bartone
|
|
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DOMINIC
BARTONE
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|||
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Name:
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Dominic Bartone
|
||
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/s/ Deborah Bartone
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|||
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DEBORAH
BARTONE
|
|||
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Title:
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President
|
||
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/s/ Michael Nardini
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|||
|
MICHAEL
NARDINI
|
|||
13
TABLE
OF SCHEDULES AND EXHIBITS
Schedules
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1.13
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Purchased
Inventory
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|
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1.15
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Tangible
Personal Property
|
|
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2.5.2
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Allocation
of Purchase Price
|
|
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4.1.1
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Seller
Organizational Information
|
|
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4.1.2
|
Seller
Capitalization
|
|
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4.10
|
Seller
Consents
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14