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EXHIBIT 10.13
ASSET PURCHASE AGREEMENT
AGREEMENT made as of this 25th day of April, 2000, by and
among LABAMERICA, INC., a Georgia corporation with a principal place of business
at 5579 Chamblee-Dunwoody Road, Suite 143, Dunwoody, Georgia 30338 (the
"Company"),GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT, BYRON M.G. SANFORD,
AND RICHARD FISHER (collectively, the "Shareholders") and EMD ACQUISITION CORP.,
a Delaware corporation having an office at 5655 Peachtree Parkway, Norcross,
Georgia 30092("Buyer").
W I T N E S S E T H:
WHEREAS, Shareholders directly own 100% of the capital stock of the
Company;
WHEREAS, the Company desires to sell and the Buyer desires to purchase
substantially all of the assets of the Company as a going concern which is
presently doing business under the trade names of "LabAmerica" and
"LabAmerica.com."
NOW THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by all parties, the
parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE; REPRESENTATIONS AND WARRANTIES
SECTION 1. PURCHASE AND SALE. Subject to the terms and
conditions of this Agreement, the Company hereby sells, assigns and transfers to
the Buyer and the Buyer hereby purchases and acquires from the Company, all of
the right, title and interest of the Company in and to the Purchased Assets (as
hereinafter defined) for a purchase price, which includes (i) $200,000 (the
"Cash Purchase Price"), (ii) 60,000 shares of the common stock of Electronic
Medical Distribution, Inc. ("Parent"), par value $0.0001 per share (the "Buyer
Shares"), and (iii) certain revenue earn out warrants (the "Warrants") as set
forth in Exhibit A (the "Purchase Price") and for the Assumption of the Assumed
Liabilities (herein defined). The parties hereto agree to allocate the Purchase
Price (and all other capital costs) among the Purchased Assets for all purposes
(including financial accounting and tax purposes) in accordance with the
allocation schedule attached hereto as Exhibit A. For purposes of this
Agreement, "Business" shall mean the lab testing business conducted by the
Company under the trade names of "LabAmerica," "LabAmerica.com" and "LabAnon."
SECTION 2. REPRESENTATIONS OF THE COMPANY AND SHAREHOLDERS. The
following agreements, representations and warranties are made by the Company and
the Shareholders to the Buyer.
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(A) Corporate Matters; No Conflict. The Company is duly
organized and validly existing under the laws of the State of Georgia.
The Company maintains offices only at the site(s) listed on Exhibit A
and has no operations other than from those site(s). The Company does
not transact business related to the Business in any other
jurisdiction. The Company has the corporate power to enter into this
Agreement, to perform its obligations hereunder and to conduct its
business as currently conducted. The execution, delivery and
performance of this Agreement and the transactions contemplated hereby
by the Company will not (i) conflict with or violate the provisions of
any applicable law (including, without limitation, any bulk sales
laws), rule or order, Articles or Certificate of Incorporation, by-laws
or any other organizational or governing documents of the Company, (ii)
conflict with or constitute a default under any agreement or contract
by which the Company is bound or (iii) require the consent or approval
of, or filing with, any governmental body or third party except as set
forth on Exhibit C-5. The execution, delivery and performance by the
Company of this Agreement has been duly authorized and approved by all
requisite corporate action on the part of the Company and the
Shareholders. Set forth on Exhibit B is a list of officers, directors,
and shareholders of the Company, all trade names used by the Business
and all jurisdictions in is which the Business conducted. This
Agreement and the consummation of the transactions contemplated hereby
have been approved by the board of directors of the Company, and the
authorized officers of the Company named on Exhibit A are authorized
and empowered by the Company to execute and deliver this Agreement in
the name and on behalf of the Company.
(B) Purchased Assets.
(i) All vendor and customer contracts,
confidentiality agreements, purchase and sales orders and
other agreements to which the Company is a party and which
relate in any manner to the Business and/or the relationship
between the Company and the Customers (hereinafter defined),
whether written or oral, shall be referred to herein
collectively as the "Business Agreements". The Company has
delivered to Buyer, on or before the Closing Date, true and
correct copies of all Business Agreements Attached hereto as
Exhibit C-1 are true and correct copies of the agreements
which have been entered into between the Company and its
Customers concerning the Business. Also attached as part of
Exhibit C-1 is a schedule stating the identity of the Customer
to each of those agreements which are in force and effect as
of the Closing Date, together with a designation of which form
of agreement each such Customer has entered into. Annexed as
Exhibit C-2 is a copy of all Business Agreements between the
Company and vendors or service providers, or which relate to
any strategic partnerships, reselling arrangements or joint
ventures between the Company and others, concerning the
Business. Listed on Exhibit C-3 is a description of each
equipment and personal property lease (collectively, the
"Leases") to which the Company is a party and which relates to
the Business. The Leases are also included within the
definition of Business Agreements as said term is used herein.
The Company does not own, lease or use any real estate in
connection with the Business except the office and data
facilities located at the Sites. Neither the Company nor, to
the knowledge of the Company or the Shareholders, any other
party, is in default under any Business Agreement and no other
party to any
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Business Agreement has made any claim or given the Company
notice of any dispute under any Business Agreement, except as
set forth on Exhibit C-4. Each Business Agreement is in full
force and effect and the Company has the right to assign the
Business Agreements to the Buyer and its affiliates and the
Company has obtained all required consents to the assignment
and transfer thereof, except as set forth on Exhibit C-5. The
Company is not the owner or lessee of any motor vehicles which
are used in the Business. The Company does not own or lease
any interest in any property or any equipment used in the
Business, except as expressly stated on Exhibit C-3.
(ii) All of the tangible assets of the Company used
in the Business, including, without limitation, all machinery,
office and other equipment, furniture, computers and related
equipment, business machines, telephone systems, parts and
accessories, e-mail addresses and Internet domain addresses
presently utilized by the Company in the Business, shall be
referred to herein collectively as the "Tangible Assets".
Attached hereto as Exhibit E is a true and correct list or
description of the Tangible Assets. As of the Closing Date,
each of the Tangible Assets is in good and operable condition,
reasonable wear and tear excepted.
(iii) All patents, trademarks, trade names, service
marks, service names, logos, designs, formulations, copyrights
and other trade rights and all registrations and applications
therefor, all know-how, trade secrets, technology or
processes, and all computer programs, data bases and software
documentation owned or used by the Company in the Business,
other than off-the-shelf software licensed by the Company,
shall be referred to herein collectively as the "Intellectual
Property". Attached hereto as Exhibit F is a true and correct
copy of all of the Intellectual Property. Such exhibit also
indicates which of such items have been patented or registered
or are in the process of application for same. The Company is
not infringing on the rights of any third parties to
Intellectual Property used, but not owned by, the Company. The
Company has valid and fully-paid licenses for all
off-the-shelf software used by the Company in its operation of
the Business. Included among the Intellectual Property, among
other things, are all trade names utilized by the Company in
the Business, including, but not limited to, those trade names
listed on Exhibit B. On the Closing Date, the Company will
deliver to Buyer written proof in form and substance
satisfactory to Buyer and its counsel that the Company will no
longer do business under any of the trade or domain names
listed on Exhibit B and further, within five (5) days of
Closing, Company will cause to be filed in all applicable
governmental or quasi-governmental offices, any required
instruments to terminate any previously filed assumed name or
similar certificates regarding such trade names. Promptly
after such filing, the Company will deliver proof of said
filing to Buyer.
(iv) The Company will deliver at the Closing a true
and complete copy of the Company's customer list as of the
Closing Date relating to the Business which includes, in the
case of each customer, the name of the customer, its billing
and domain addresses, identity and contact information of each
relevant contact person, a statement of the monthly or annual
(as indicated) service charges relating to such customer and
the Company's files regarding such Customer (the
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"Customer List"). All customers of the Company relating to the
Business, including without limitation, those customers
included on the Customer List, together with the good will and
business opportunities of the Company as it relates to the
Business shall be referred to herein as the "Customers."
(v) As used herein, the term "Purchased Assets" shall
be defined as all classes of assets of the Company as shown on
the Company's financial statement as of April 25, 2000
(annexed as Exhibit H) utilized by the Company to operate and
maintain the Business, including, without limitation, the
Business Agreements, the Tangible Assets, the Intellectual
Property, the Customer List, the Customers and all other
assets of the Company used in connection with the operation of
the Business, wherever located, tangible or intangible,
excluding, however, Excluded Assets (as defined below). The
Purchased Assets are not subject to (i) any lien or
encumbrance of any character whatsoever except as set forth on
Exhibit M or (ii) any adverse claims by any third parties. At
the Closing upon consummation of the transactions contemplated
by this Agreement, Buyer will receive good and marketable
title to the Purchased Assets, free and clear of all liens,
claims and encumbrances of any character whatsoever, except as
set forth on Exhibit M. The Purchased Assets include all
rights, properties, interests and assets used by Company
and/or necessary to permit Buyer to carry on the Business as
presently conducted by the Company except for Excluded Assets.
(vi) The Company and the Shareholders reasonably
expect that the business represented by the Business
Agreements will continue after the date hereof. Neither the
Company nor the Shareholders have no any knowledge that any
customers included on the Customer List, other than those
listed on Exhibit G-1, intend to terminate their relationship
with the Company or significantly reduce the amount of
business they presently do with the Company.
(vii) Excluded Assets. The Company is not selling and
Purchaser is not buying or acquiring hereunder the following
items ("Excluded Assets") which are not included in the
defined term "Purchased Assets" which assets are listed on
Exhibit L hereto.
(C) Financial Statements. The Company has delivered to the
Buyer copies of the Company's financial statements for the fiscal year
of the Company ended December 31, 1999. Attached hereto as Exhibit H
are unaudited financial statements for the quarter ending March 31,
2000 which reflect the assets, liabilities, net worth, profit and loss,
and cash flow of the Company with respect to the Business. All
financial statements referred to herein are complete and correct in all
material respects, present fairly the financial condition and results
of operations of the Company as at the dates of such statements and
have been prepared in accordance with generally accepted accounting
principles. The books of account and records of the Company have been
maintained in accordance with good business practice and reflect fairly
all properties, assets, liabilities and transactions of the Company.
The Company has no material liabilities or obligations of any kind
(whether accrued, absolute, direct, indirect, contingent or otherwise)
which are not fully accrued or reserved against in the Company's
financial statements in accordance with generally accepted accounting
principles. Except as set forth on Exhibit I the Company
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has no bad debts as of the Closing Date. Since the last day of the
Company's last fiscal year, the Company has conducted the Business only
in the ordinary and usual course and has not experienced any material
adverse change in the Business or the financial condition of the
Company. Since March 31, 2000, the Company has had no loss in net
monthly recurring revenue from the Business. Between April 30, 2000 and
the Closing Date, the Company has not withdraw, expend or applied any
cash or other assets of the Company, except in the ordinary course of
operations of the Business of the Company in accordance with past
practices of the Company, and that during such period no amounts have
been paid to any officer, director or shareholder except for salaries.
The books and records of the Company with respect to the Business
relating to the fiscal year of the Business ending December 31, 1999,
are adequate to permit an audit of the Business at and for the fiscal
years then ended.
(D) Assumed Liabilities. The Buyer shall not be liable for and
is not assuming any liabilities of the Company whatsoever, whether
related or unrelated to the Purchased Assets, or whether arising under
the Business Agreement or otherwise except as specifically listed on
Exhibit J hereto (the "Assumed Liabilities"). The Company has no
outstanding loans, borrowings, guarantees, or debt of any kind with
respect to the Business and none of the Company's obligations have been
guaranteed by any other person or entity.
(E) Existing Employment Arrangements. Except as set forth on
Exhibit K the Company has no employment agreements, labor or collective
bargaining agreements or employee benefit or welfare plans or
retirement plans. All vacation pay, if any, due to employees of the
Company who are employed in the Business has been fully paid by the
Company, except as set forth on Exhibit K. No employees of the Company
who are employed in the Business are entitled to any sick pay, except
as set forth on Exhibit K. All vacation pay and sick pay due to
employees of the Company who are employed in the Business and
terminated by the Company in connection with the transactions
contemplated by this Agreement shall be paid in full prior to the
Closing Date. There are no pending or, to the knowledge of the Company,
threatened strikes, job actions or other labor disputes affecting the
Company or its employees and there have been no such disputes for the
past three years. Also set forth on Exhibit K is a true and complete
list of all employees of the Company employed in connection with the
Business, which list provides, among other things, the name, residence
address, title, job description and salary information concerning each
employee.
(F) Claims, Litigation, Disclosure. There is no claim,
litigation, tax audit, proceeding or investigation pending or, to the
Company's knowledge, threatened against the Company, with respect to
the Business or any of the Purchased Assets of the Company (including,
any claims of infringement or actions of opposition with respect to
Intellectual Property), nor does the Company know of any facts which
would provide a basis for any such claim, litigation, audit, proceeding
or investigation.
(G) Taxes. Except as specifically set forth on Exhibit I (the
"Tax Liabilities"), the Company has correctly prepared and timely filed
all Federal, state and local tax returns, estimates and reports, and
paid all such taxes as and when due. For purposes of this paragraph,
taxes shall mean all taxes, charges, fees, levies or other assessments
of
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any kind whatsoever (including, without limitation, income, franchise,
sales, use and withholding taxes). The Company is not a party to any
tax sharing agreement.
(H) No Other Agreements to Sell Assets or Business. The
Company is not a party to any existing agreement which obligates the
Company to sell to any other person or firm the Purchased Assets (other
than sales in the ordinary course of business), to issue or sell any
capital stock or any security convertible into or exchangeable for
capital stock of the Company or to effect any merger, consolidation or
other reorganization of the Company or to enter into any agreement with
respect thereto.
(I) No Brokers. The only broker, leasing agent, finder or
similar person or entity with whom the Company has made contact or had
any dealings with or entered into any agreement, arrangement or
understanding with concerning this Agreement and to whom the Company is
responsible to pay a finder's fee, brokerage commission or similar
payment in connection with the transactions contemplated by this
Agreement is the party or parties listed in item 4 on Exhibit A, if
any, and the Company shall be solely responsible for the payment of any
such fee, commission or payment.
(J) Environmental Compliance.
(i) Neither the Company nor any operator of the
Company's properties is in violation, or alleged to be in
violation, of any federal, state or local judgment, decree,
order, consent agreement, law (including common law), license,
rule or regulation pertaining to environmental health or
safety matters, including without limitation those arising
under the Resource Conservation and Recovery Act, as amended,
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, as amended, Water
Act, as amended, the Federal Clean Air Act, as amended, the
Toxic Substances Control Act, or any state or local analogue
(hereinafter "Environmental Laws").
(ii) The Company has not received a notice,
complaint, order, directive, claim or citation from any third
party, including without limitation any federal, state or
local governmental authority, indicating or alleging that the
Company or any predecessor may have any liability or
obligation under any Environmental Law.
(iii) (A) No portion of the property of the Company
has been used by any person for the generation, handling,
processing, treatment, storage or disposal of Hazardous
Materials except in accordance with applicable Environmental
Laws; (B) no underground tank or other underground storage
receptacle for Hazardous Materials, asbestos-containing
materials or polychlorinated biphenyls are located on any
portion of any location occupied by the Company each of which
is listed as a Site on Exhibit A; (C) in the course of any
activities conducted by the Company or its invitees, agents,
contractors, licensees or employees in connection with the
Business of the Company, no Hazardous Materials have been
generated or are being used except in accordance with
applicable Environmental Laws; and (D) there have been no
releases (i.e., any past or present releasing,
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spilling, leaking, leaching, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or
dumping) or threatened releases of Hazardous Materials on,
upon, into or from the property currently or formerly owned,
operated or leased by the Company, which releases would have a
material adverse effect on the value of any of the property or
adjacent properties or the environment.
(iv) The execution, delivery and performance of this
Agreement is not subject to any Environmental Laws which
condition, restrict or prohibit the sale, lease or other
transfer of property or operations, including, without
limitation, any so-called "environmental cleanup
responsibility acts" or requirements for the transfer of
permits, approvals, or licenses. There have been no
environmentally related audits, studies, reports, analyses
(including soil and groundwater analyses), or investigations
of any kind performed with respect to the currently or
previously owned, leased, or operated properties of the
Company.
For purposes of this Section, "Hazardous Material"
shall mean any hazardous waste, as defined by 42 U.S.C. ss.
6903(5), any hazardous substances or wastes as defined by 42
U.S.C. ss. 9601(14), any pollutant or contaminant as defined
by 42 U.S.C. ss. 9601(33) or any toxic substances or wastes,
oil or hazardous materials or other chemicals or substances
regulated by any public or governmental authority.
(K) Year 2000. All information technology included in the
Purchased Assets including, without limitation, in all products and
services (i) provided by the Business, whether to third parties or for
internal use or (ii) to the best of the Company's knowledge after
reasonable investigation, used in combination with any information
technology of its clients, customers, suppliers or vendors, accurately
processes or will process date and time data (including, but not
limited to, calculating, comparing, and sequencing) from, into and
between the years 1999 and 2000 and the twentieth century and the
twenty-first century, including leap year calculations and neither
performance nor functionality of such technology will be affected by
dates prior to, during and after the year 2000. The Purchased Assets do
not include any obligations under warranty agreements, service
agreements or otherwise to remedy any information technology defect
relating to the year 2000.
(L) Licenses and Compliance with Laws. The Company and the
Shareholders hold governmental or regulatory licenses, permits,
consents or approvals in connection with the Business as described on
Exhibit B. The Company is not in violation of any applicable law or
regulation, or of any judgment, order, decree or other requirement of
any court, tribunal or governmental body, or any agency or official
acting in an official capacity, the violation of which, individually or
in the aggregate, has or might reasonably be expected to have an
adverse effect on the condition (financial or otherwise), results of
operations, properties, assets, liabilities, business, or prospects of
the Company. Without limiting the generality of the foregoing, the
Company has always been and is currently in compliance with (i) all
applicable rules and regulations (state or federal) governing
reimbursement of health care costs under the federal Medicare system
and all applicable similar state, local or other health care
reimbursement systems including, without limitation, Medicaid and
Champus programs, including, without limitation, the Stark
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Law, the Medicare and Medicaid anti-kickback rules (42 U.S.C. "1320-7a
and 1320-7b and all regulations pertaining thereto), the Medicare and
Medicaid charge limitations and anti-discrimination rules (42 C.F.R.
405.501-405.515, and 42 C.F.R. 447.300 et seq.), and regulations
governing Medicaid and Medicare participation by clinical laboratories
(42 C.F.R. 493.1 et seq.), and (ii) all applicable laws and regulations
pertaining to the operation of clinical laboratories, including without
limitation the federal Clinical Laboratories Improvements Act and
regulations pertaining thereto (42 U.S.C. 263a and 42 C.F.R. "1701 et
seq.), the Georgia clinical laboratory laws and the Occupational Health
and Safety Administration=s rules regarding blood borne pathogens (29
C.F.R. "1910.1030 et seq.), except to the extent that any such
violations referred to in clauses (i) and (ii) above, individually or
in the aggregate, has not had and would not reasonably be expected to
have an adverse effect on the condition (financial or otherwise),
results of operations, properties, assets, liabilities, business, or
prospects of the Company.
(M) Investment. The Shareholders (i) understand that none of
the Buyer Shares, the Warrants nor the common stock of Parent issuable
pursuant to exercise thereto (collectively the "Securities") have not
been, and will not be, registered under the Securities Act of 1933, or
under any state securities laws, and are being offered and sold in
reliance upon federal and state exemptions for transactions not
involving any public offering, (ii) is acquiring the Securities solely
for its own account for investment purposes, and not with a view to the
distribution thereof, (iii) is a sophisticated investor with knowledge
and experience in business and financial matters, (iv) has received
certain information concerning the Buyer, Parent, and BioShield
Technologies, Inc. and has had the opportunity to obtain additional
information as desired in order to evaluate the merits and the risks
inherent in holding the Securities, and (v) is able to bear the
economic risk and lack of liquidity inherent in holding the Securities.
(O) True and Complete. No representation or warranty made by
Company or the Shareholders in this Agreement, nor any statement,
certificate or exhibit furnished by or on behalf of Company or the
Shareholders pursuant to this Agreement, nor any document or
certificate delivered to Buyer pursuant to this Agreement, or in
connection with the transactions contemplated hereby, contains any
untrue statement of a material fact, or omits or shall omit to state a
material fact necessary to make the statements contained therein not
misleading. The Company and the Shareholders have not failed to
disclose to Buyer any pending developments or circumstances of which it
is aware which are reasonably likely to have a material adverse effect
on the Business.
SECTION 3. REPRESENTATIONS OF THE BUYER. Buyer represents and warrants
to the Company as follows.
(A) Corporate Matters; No Conflict. Buyer is a wholly owned
subsidiary of Parent. Each of the Buyer and Parent is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is in
good standing in each other jurisdiction in which it is doing business, except
where failure to be in good standing would not have a material adverse effect on
the business of Buyer or Parent, and has the corporate power to enter into this
Agreement, to perform its obligations hereunder and to conduct its business as
currently conducted. The execution, delivery and performance of this Agreement
and the transactions contemplated hereby (and thereby) by the Buyer and Parent,
respectively, will not (a) conflict
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with or violate the provisions of any applicable law, rule or order or the
Buyer's or the Parent's respective Certificate of Incorporation or by-laws, (b)
conflict with or constitute a default under any agreement or contract by which
the Buyer or Parent is bound or (c) require the consent or approval of, or
filing with, any governmental body or third party. The execution, delivery and
performance by the Buyer of this Agreement has been authorized and approved by
all requisite corporate action on the part of the Buyer.
(B) No Brokers. The only broker, leasing agent, finder or similar
person or entity with whom the Buyer or Parent has made contact or had any
dealings with or entered into any agreement, arrangement or understanding with
concerning this Agreement and to whom the Buyer and/or the Parent is responsible
to pay a finder's fee, brokerage commission or similar payment to is the party
listed in item 5 on Exhibit A, if any, and Buyer shall be responsible for the
payment of any such fee, commission or payment.
ARTICLE II
PRECLOSING CONDITIONS
SECTION 1. GENERAL. Each of the parties will use their best
efforts to take all action and to do all things necessary, proper and advisable
in order to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 2. NOTICES AND CONSENTS. The Company and the
Shareholders will give all notices to third parties, and the Shareholders and
the Company will use their best efforts to obtain all third party consents or
approvals necessary to consummate the transactions contemplated by this
Agreement. The Company and the Shareholders will give any notices to, make any
filings with, and use its reasonable best efforts to obtain any necessary
authorizations, consents, and approvals of governments and governmental
agencies.
SECTION 3. OPERATION OF BUSINESS. The Company will not engage in
any practice, take any action, or enter into any transaction outside the
ordinary and usual course of business through the Closing or the termination of
this Agreement in substantially the same manner as such business has been
conducted prior to the Closing. Without limiting the generality of the
foregoing, the Company will not (i) except in connection with the consummation
of the transactions contemplated hereby, declare, set aside, or pay any dividend
or make any distribution with respect to its capital stock or redeem, purchase,
or otherwise acquire any of its capital stock, (ii) create or incur any
obligation or liability which would constitute one of the Assumed Liabilities if
in existence as of the Closing except in the ordinary course of business, or
(iii) issue any capital stock or securities, options warrants or other
instruments convertible into the Company's securities, (iv) incur any
indebtedness or make any capital expenditure or guarantee any indebtedness in
excess of $20,000.
SECTION 4. PRESERVATION OF BUSINESS. Through the earlier of the
termination of this Agreement of the Closing, the Company will preserve its
business and assets substantially intact, including its present operations,
physical facilities, working conditions, and relationships with lessors,
licensors, suppliers, customers, and employees.
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SECTION 5. FULL ACCESS. The Company will permit representatives
of the Buyer to have full access at all reasonable times, and in a manner so as
not to interfere with the normal business operations of the Company, to all
premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertaining to the Company.
SECTION 6. NOTICE OF DEVELOPMENTS. Each party will give prompt
written notice to the other party of any material adverse development causing a
breach of any of its own representations and warranties set forth herein. No
disclosure by any Party pursuant to this Section 6, however, shall be deemed to
amend or supplement the Exhibits or to prevent or cure any misrepresentation,
breach of warranty, or breach of covenant. If any event, condition, fact or
circumstance that is required to be disclosed under this Section 6 requires any
change in the Exhibits or such event, condition, fact, or circumstance would
require a change in the Exhibits assuming the Exhibits were dated as of such
change, then the Company and the Shareholders shall promptly deliver an update
to the Exhibits specifying such change.
SECTION 7. EXCLUSIVITY. So long as this Agreement remains in
effect, neither the Company nor the Shareholders will (i) solicit, initiate, or
encourage the submission of any proposal or offer from any person or entity
relating to the acquisition of any capital stock or other voting securities, or
all or any portion of the assets of the Company whether such acquisition is
structured as a merger, consolidation, or share exchange or asset purchase or
(ii) participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any person or entity to do or seek any of
the foregoing.
SECTION 8. BUYER'S LICENSE TO TARGET'S INTELLECTUAL PROPERTY. So
long as this Agreement remains in effect Buyer shall have a nonexclusive license
to use and an exclusive license to market, sell and license the use of any and
all of the Intellectual Property of Company. The sale or licensing of the
Company=s Intellectual Property may be conducted by Buyer in its own name or in
the name of the Company, but all contracts, licenses and revenue from the sale
or licensing of such Intellectual Property by Buyer shall be and remain the
property of the Company prior to the Closing.
SECTION 9. PAYMENT OF INDEBTEDNESS BY RELATED PARTIES. The
Company and the Shareholders shall cause all indebtedness and other liability of
each Shareholder, officer, director, and employee and each of their affiliates
("Related Parties") to be discharged and paid in full to the Closing.
SECTION 10. ACCRUED PAY. All vacation pay and sick pay due to
employees of the Company who are employed in the Business and terminated by the
Company in connection with the transactions contemplated by this Agreement shall
be paid in full prior to the Closing Date.
SECTION 11. TAX LIABILITY. On or before the Closing Date, the
Company shall pay off and satisfy any of the Tax Liabilities which are then due
and payable or payable with respect to the Purchased Assets for the period
ending on the Closing Date whether or not then due, and provide Buyer with
evidence thereof in form satisfactory to Buyer and its counsel.
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ARTICLE III
INDEMNIFICATION
SECTION 1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
(A) The representations and warranties of the parties herein
contained shall survive the closing of the purchase contemplated by
this Agreement, notwithstanding any investigation at any time made by
or on behalf of the other party, provided that any claims for
indemnification in accordance with Article II, Section 2 below with
respect to any representation or warranty must be made (and will be
null and void unless made) on or before April 28, 2002 (except in the
case of representations contained in Paragraphs (B)(v), (G), (I), (J),
and (L) of Article I, Section 2 hereof, which must be made within six
(6) months following the expiration of the applicable statute of
limitations).
(B) The Shareholders and the Company jointly and severally
hereby agree to indemnify and hold Buyer, Parent, and their respective
officers, directors, stockholders, affiliates, employees,
representatives and other agents harmless from and against any and all
claims, liabilities, losses, damages or injuries, together with costs
and expenses, including reasonable legal fees, arising out of or
resulting from (i) any breach, misrepresentation or material omission
of the representations and warranties made by the Company in this
Agreement or in any Exhibit hereto or other documents delivered in
connection herewith, (ii) any breach in any material respect by the
Company, unless waived in writing by the Buyer, of any covenant or
agreement contained in or arising out of this Agreement, or any other
agreement delivered in connection herewith on the Closing Date, (iii)
the Business conducted by the Company prior to the Closing Date and any
actions or events associated therewith, (iv) any and all liabilities of
the Company, other than the Assumed Liabilities, and (v) any failure by
the Company to comply with any provisions of the bulk sales or similar
laws of any jurisdiction which are applicable to this Agreement or the
transactions contemplated hereby.
(C) Buyer hereby agrees to indemnify and hold the Company and
the Shareholders harmless from and against any and all claims,
liabilities, losses, damages or injuries, together with costs and
expenses, including reasonable legal fees, arising out of or resulting
from (i) any breach, misrepresentation or material omission in the
representations and warranties made by the Buyer in this Agreement,
(ii) any breach in any material respect by Buyer, unless waived in
writing by the Company, of any covenant or agreement of Buyer contained
in or arising out of this Agreement, or (iii) the Business as conducted
by Buyer, after the Closing Date.
(D) Any party claiming a right to indemnification hereunder
(the "Indemnified Party") shall give the other party from whom
indemnification is sought (the "Indemnifying Party") prompt written
notice of any claim, demand, action, suit, proceeding or discovery of
fact (any of which shall be a "Claim") upon which the Indemnified Party
intends to base a claim for indemnification under this Article III,
Section 2, provided, however, that no failure to give such notice shall
excuse any
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Indemnifying Party from any obligation hereunder except to the extent
the Indemnifying Party is materially prejudiced by such failure. The
Indemnified Party shall not settle or compromise any Claim by a third
party without the prior written consent of the Indemnifying Party,
which will not be unreasonably withheld or delayed, unless suit in
respect of such Claim shall have been instituted against the
Indemnified Party and the Indemnifying Party shall not have chosen to
participate in the defense of such suit after notification thereof if
the Indemnifying Party is entitled to participate under paragraph (E)
of this Section.
(E) In connection with any Claim resulting from or arising out
of any claim or legal proceeding by a third party, the Indemnifying
Party, may, upon written notice to the Indemnified Party within 15 days
following the Indemnified Party's notice of the Claim, assume the
defense of any such action with its own counsel and its own expense if
the Indemnifying Party acknowledges to the Indemnified Party in writing
its obligation to indemnify the Indemnified Party pursuant to this
Article III, Section 2 in respect of such Claim; provided, however,
that such counsel is reasonably acceptable to the Indemnified Party and
provided, further, that if, in the reasonable opinion of the
Indemnified Party, for any conflict of interest that may arise between
the Indemnifying Party and the Indemnified Party, the Indemnified Party
may retain independent counsel at the expense of the Indemnifying
Party. If the Indemnifying Party assumes the defense or prosecution of
any such action or proceeding, it shall take all steps reasonably
necessary in the defense, prosecution and settlement of such action or
proceeding. The Indemnifying Party shall not, in the defense or
prosecution of any such action or proceeding except with the written
consent of the Indemnified Party, consent to the entry of any judgment
or enter into any settlement which does not include as an unconditional
term thereof, a release by the third party of the Indemnified Party
from all liability in respect of the matter which is the subject of
such action or proceeding. The Indemnified Party shall cooperate in the
defense or prosecution of any such action or proceeding; provided that
the Indemnifying Party shall pay or reimburse the Indemnified Party for
any actual costs or expenses attributable to such cooperation.
(F) The obligations of the Company pursuant to paragraph (B)
of this Section and the obligations of the Buyer pursuant to paragraph
(C) of this Section shall, in each case be limited to an aggregate
amount not in excess of the Purchase Price. Neither the Company nor the
Buyer shall make any Claim hereunder unless and until the aggregate
amount of such Claim exceeds $25,000; provided, however, that if the
aggregate amount of Claims by the Buyer or the Company, respectively,
exceeds $25,000, the obligations of the Company or the Buyer,
respectively, hereunder shall be with respect to the entire amount of
such Claims.
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ARTICLE IV
CONDITIONS TO OBLIGATION TO CLOSE
SECTION 1. CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the
Buyer to consummate the transactions to be performed by it in connection with
the Closing shall be absolute and unconditional, provided:
(i) the representations and warranties of Shareholders and the
Company set forth herein shall be true and correct in all material
respects at and as of the Closing Date;
(ii) the Company and the Shareholders shall have performed and
complied with all of its covenants hereunder in all material respects
through the Closing;
(iii) the Company and Shareholders shall have given all
notices and procured all of the material third Person consents and
approvals specified herein;
(iv) no action, suit, or proceeding shall be pending before
any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein,
by reason of any action or failure to act of the Company or the
Shareholders, an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of the Buyer to own the
Purchased Assets or to operate the any business included as part of the
Purchased Assets;
(v) the Shareholders and the Company shall have delivered to
the Buyer a certificate to the effect that each of the conditions
specified above in this ARTICLE IV, Section 1 (i)-(iv) have been
satisfied in all respects;
(vi) the Board of Directors of Parent shall have approved the
transactions described in this Agreement; and
(vii) all actions to be taken by the Shareholders in
connection with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby, including, but
not limited to, those matters identified in Article V, Section 2 are
reasonably satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this ARTICLE IV, Section 1 if it
executes a writing so stating at or prior to the Closing.
SECTION 2. CONDITIONS TO OBLIGATION OF THE SELLERS. The
obligation of the Sellers to consummate the transactions to be performed by it
in connection with the Closing shall be absolute and unconditional, provided:
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(i) the representations and warranties of the Buyer set forth
herein shall be true and correct in all material respects at and as of
the Closing Date;
(ii) the Buyer shall have performed and complied with all of
its covenants and agreements hereunder in all material respects through
the Closing Date;
(iii) no action, suit, or proceeding shall be pending before
any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein
by reason of any action or failure to act of Buyer, an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions contemplated by this
Agreement or (B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation;
(iv) the Buyer shall have delivered to the Shareholders a
certificate to the effect that each of the conditions specified above
in this ARTICLE IV, Section 2 (i)-(iii) have been satisfied in all
respects;
The Shareholders may waive any condition specified in this ARTICLE IV, Section 2
if it executes a writing so stating at or prior to the Closing.
ARTICLE V
CLOSING AND DELIVERIES AT CLOSING
SECTION 1. CLOSING. The closing of the purchase and sale of the
transaction contemplated herein shall take place on or about May 3,, 2000 (the
"Closing"), at the offices of Sims Moss Kline & Davis LLP, located at 400
Northpark Town Center, Suite 310, 1000 Abernathy Road, NE, Atlanta, Georgia
30328 at 10:00 a.m. The deliveries described in Section 2 and 3 of this Article
V shall be made at the Closing.
SECTION 2. DELIVERIES BY THE COMPANY. On the Closing Date, the
Shareholders and the Company will deliver, or cause to be delivered, to the
Buyer the following:
(A) Such instruments of transfer or conveyance executed by the
Company, as Buyer may reasonably request in order to convey and
transfer to Buyer good and marketable title to all of the Purchased
Assets, free and clear of all liens, claims, encumbrances and other
charges, including, without limitation, an Assignment Agreement and a
Bill of Sale.
(B) Physical delivery of all Tangible Assets by making them
available at the Sites listed on Exhibit A, together with any and all
warranties, manuals, instructions, and other literature in the
possession of the Company relating to the ownership or operation of the
Tangible Assets. In addition, such notices to telephone companies and
others required to transfer the Company's e-mail addresses and domain
addresses, used in the Business to Buyer.
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(C) Physical delivery of all original or certified copies of
documentation concerning the Intellectual Property, including, without
limitation, registrations and applications of any patents, trademarks
or service marks, original artwork, data bases, computer programs and
software.
(D) The following corporate documentation:
(i) The Company's Articles or Certificate of
Incorporation certified as of a date within five (5) days
prior to the Closing Date by the Secretary of State of the
state of the Company's organization;
(ii) The Company's By-Laws certified as of the
Closing Date by the President or Secretary of the Company as
being in full force and effect and unmodified; and
(iii) Corporate Resolutions of the Board of Directors
and Shareholders of the Company, approving this Agreement and
all the transactions contemplated hereby, certified by the
President or Secretary of the Company as being in full force
and effect and unmodified.
(E) The opinion of counsel to the Company and Shareholders, in
a form acceptable to Buyer and its counsel.
(F) Evidence in form satisfactory to Buyer and its counsel
that the Tax Liabilities, if any, have been paid off and satisfied.
(G) The Noncompetition Agreements for each of the Company and
the Shareholders, in substantially the form as Exhibit N attached
hereto.
(H) Copies of written proof in form and substance satisfactory
to Buyer and its counsel that the Company will no longer do business
under any of the trade and domain names listed on Exhibit B as required
pursuant to Article I, Section 2, Paragraph (B) (iii) hereof.
(I) The Company shall use its best efforts to deliver a
Non-Disclosure and Intellectual Property Agreement in a form to be provided by
Buyer prior to the Closing, executed by each employee of the Company who will be
employed by Buyer or its affiliate immediately following the Closing.
(K) Notices of termination of all employees of the Company
employed in connection with Business satisfactory to Buyer, which
notices will be delivered to the employees concurrently with the
Closing.
(L) The Employment/Consultant Agreements of David Nelson and
Gregory Smith, M.D., in substantially the form as Exhibit O attached
hereto.
(M) Such notice or notices as Buyer may reasonably request in
order to notify the customers included on the Customer List that the
Business has been sold to Buyer.
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SECTION 3. DELIVERIES BY THE BUYER.
On the Closing Date, the Buyer will deliver, or cause to be delivered,
to the Company the following:
(A) The Cash Purchase Price by cash, or certified or official
bank check payable to the order of the Company, or by wire transfer of
federal funds to the account of the Company, as the Company shall
direct in writing on or before the Closing Date; provided, however,
Buyer may, upon written agreement of all parties hereto, deduct from
the Purchase Price and pay directly amounts due any creditor of the
Company, including, without limitation, the Tax Liabilities (but
excluding any amounts due for any of the Assumed Liabilities), in which
event, evidence of such payment shall be presented at the Closing.
(B) The Buyer Shares;
(D) Such instruments of assignment and assumption executed by
the Buyer, as the parties hereto reasonably may determine necessary to
effectuate the assignment to the Buyer of the Business Agreements and
the assumption by Buyer of the Assumed Liabilities.
(E) Resolution of the Board of Directors of Buyer, authorizing
the execution of this Agreement and the transactions contemplated hereby.
(F) The opinion of Sims Moss Kline & Davis LLP, outside
counsel to the Buyer, in a form acceptable to the Company and its counsel.
ARTICLE VI
OBLIGATIONS FOLLOWING CLOSING
SECTION 1. FURTHER COOPERATION. The Company will, at any time and from
time to time after the Closing Date, execute and deliver such further
instruments of conveyance, transfer and license, and take such additional
actions as Buyer, Parent or its successor and/or assigns, may reasonably
request, to effect, consummate, confirm or evidence the transfer to Buyer of the
Purchased Assets pursuant to this Agreement.
SECTION 2. TRANSITION ASSISTANCE AND ADJUSTMENTS.
(A) The Company shall cooperate and provide assistance to the
Buyer as shall be reasonably necessary during the transition of the
Business and the Purchased Assets from the Company to the Buyer, or its
successors and/or assigns, after the Closing Date.
(B) Buyer and its successors and/or assigns shall have the
right at any time and from time to time upon reasonable notice and
during normal business hours to
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examine and make copies of all corporate books, records and other
documents of the Company and generated prior to the Closing Date, which
documents will be maintained by the Company for a period of five (5)
years after the Closing Date.
(C) The Company will reasonably cooperate with Buyer in
notifying the customers included on the Customer List that the Business
has been sold to Buyer, including, without limitation, executing any
additional notices which Buyer may reasonably request. The Company will
not, directly or indirectly, take any action which is designed or
intended to have the effect of discouraging customers, suppliers or
vendors and other business associates of the Business, from maintaining
the same business relationships with Buyer or its successors and/or
assigns after the Closing Date as were maintained with the Company with
respect to the Business prior to the Closing Date.
(D) The Buyer shall collect all Closing Accounts Receivable
following the Closing Date Receivable of the Company. If payment of any
Closing Account Receivable is received by the Company, it shall
promptly forward to Buyer the full amount so received for the Buyers
benefit. The Company will cooperate with Buyer in establishing a bank
account of Buyer in the name of ["LabAmerica"] in order to facilitate
the negotiation of checks received from customers of the Company after
the Closing.
(E) All of the Company's right, title and interest in and to
the name "LabAmerica" constitutes a Purchased Asset and has been
transferred to the Buyer in accordance with this Agreement. Following
the Closing, neither the Company nor any affiliate of the Company (as
defined under federal securities laws), shall not use the name
"LabAmerica" or any confusingly similar name to said trade name in any
trade or business. The Company expressly acknowledges, understands and
agrees (i) that remedies at law for any breach of this Article VI,
Section 2((E) will be inadequate, (ii) that the damages resulting from
such breach are not readily susceptible to measurement in monetary
terms and (iii) that the Buyer shall be entitled to immediate
injunctive relief and may obtain temporary and permanent orders
restraining any threatened or further breach of this Article VI,
Section 2(E) by the Company. The Company has been advised by its
counsel with respect to the meaning and effect of this Article VI,
Section 2(E).
ARTICLE VII
TERMINATION
SECTION 1. TERMINATION EVENTS. This Agreement may be terminated
prior to the Closing:
(i) By the Buyer if (i) there is a material breach of any
covenant or obligation of the Company or any of the Shareholders, or
(ii) the Buyer reasonably determines that the timely satisfaction of
any condition set forth in this Agreement has become impossible or
impractical (other than as a result of any failure on the part of Buyer
to comply with or perform its covenants and obligations under this
Agreement);
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(ii) by the Company if (i) there is a material breach of any
covenant or obligation of the Buyer or (ii) the Company reasonably
determines that the timely satisfaction of any condition set forth in
this Agreement has become impossible or impractical (other than as a
result of any failure on the part of the Company or any of the
Shareholders to comply with or perform any covenant or obligation set
forth in this Agreement);
(iii) by the Buyer if the Closing has not taken place on or
before May31, 2000 (other than as a result of any failure on the part
of Buyer to comply with or perform its covenants and obligations under
this Agreement);
(iv) by the Company if the Closing has not taken place on or
May 31, 2000 (other than as a result of the failure on the part of the
Company or any of the Shareholders to comply with or perform any
covenant or obligation set forth in this Agreement);
(v) by the Buyer if the Company, Shareholders or any of its
representatives has given Buyer materially false or misleading
information or representations in writing or failed to disclose in
writing material information regarding Company;
(vi) The Company files a bankruptcy petition or a bankruptcy
petition is filed against the Company or the Company makes a general
assignment for the benefit of creditors, and such petition or
assignment is not removed or terminated within a period of 45 days
after such filing or assignment;
(vii) A receiver or similar official is appointed for the
Company's business and such appointment is not terminated within a
period of 45 days after such appointment, or the business is
terminated; and
(viii) Any judgments or arbitration awards are entered against
Seller, or Seller enters into any settlement agreements with respect to
any litigation or arbitration, in an aggregate amount of $50,000 or
more in excess of any insurance coverage therefor; or
(ix) by the mutual consent of the Company, Shareholders and
the Buyer.
SECTION 2. TERMINATION PROCEDURES. If Purchaser wishes to
terminate this Agreement pursuant to this ARTICLE VII, Purchaser shall deliver
to Seller a written notice stating that Purchaser is terminating this Agreement
and setting forth a brief description of the basis on which Purchaser is
terminating this Agreement. If Seller wishes to terminate this Agreement
pursuant to ARTICLE VII, Seller shall deliver to Purchaser a written notice
stating that the Agent is terminating this Agreement and setting forth a brief
description of the basis on which Seller is terminating this Agreement. In the
event that the alleged breach is curable, the alleged breaching party shall have
a thirty (30) day period from the date of such written notice to cure any such
breach.
SECTION 3. NONEXCLUSIVITY OF TERMINATION RIGHTS. The termination
rights provided in Article VII shall not be deemed to be exclusive. Accordingly,
the exercise by any party of its
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right to terminate this Agreement pursuant to ARTICLE VII shall not be deemed to
be an election of remedies and shall not be deemed to prejudice, or to
constitute or operate as a waiver of, any other right or remedy that such party
may be entitled to exercise (whether under this Agreement, under any other
agreement, under any statute, rule or other legal requirement, at common law, in
equity or otherwise).
ARTICLE VIII
MISCELLANEOUS
SECTION 1. GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by the laws of the Georgia.. The parties hereto submit and consent to
the exclusive jurisdiction of the state courts of the State of Georgia in Fulton
County and the federal courts located therein with respect to any legal actions
relating to this Agreement, or any other agreements delivered in connection
herewith, between the Company, on the one hand, and the Buyer , on the other
hand, and any transactions contemplated thereby.
SECTION 2. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
SECTION 3. CONFIDENTIALITY. The Company, on the one hand, and the
Buyer, on the other hand, each agree not to disclose or use any information
acquired by it about the other party during the course of the negotiations of
this Agreement and the transactions to which it relates which is confidential in
nature or not otherwise generally available to the public without the prior
written consent of such other party unless required to do so by applicable law
or regulation or by order of a court of competent jurisdiction or an
administrative agency. Each party shall be liable for any breach by its
respective employees, officers, directives, shareholders, agents and/or
contractors of the provisions of this Section.
SECTION 4. AMENDMENTS. This Agreement supersedes any prior contracts
relating to the subject matter hereof between the Buyer, Parent, the
Shareholders and the Company. This Agreement cannot be changed, modified or
amended and no provision or requirement hereof may be waived without the consent
in writing of the parties hereto.
SECTION 5. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. Each provision of this Agreement shall be deemed to be the agreement of
the parties hereto to the full extent that the power to enter into such
provisions shall have been conferred on the parties by law.
SECTION 6. BENEFIT; ASSIGNMENT. This Agreement is binding upon and
inures to the benefit of the parties, their successors and permitted assigns.
This Agreement may not be assigned or the duties of the parties hereunder
delegated to others without the prior written consent of all parties hereto,
except that Buyer may assign its rights, duties and obligations hereunder to
Parent or an affiliate of Buyer or Parent without the Shareholders' and
Company's consent.
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SECTION 7. CONSTRUCTION. All exhibits annexed hereto are hereby
incorporated herein by reference and made a part of this Agreement. Whenever
used in this Agreement and the context so requires, the singular shall include
the plural and the plural shall include the singular.
SECTION 8. IMPUTED KNOWLEDGE. Any reference in this Agreement to the
"knowledge of" the Company, or words of similar import, the knowledge of any and
all of the officers or directors of the Company (including, without limitation,
its President, Gregory Smith; its executive Vice President, David Nelson; and
Webmaster, Gordon Schuchardt) shall be imputed to be the knowledge of the
Company. Any reference in this Agreement to the "knowledge of" the Buyer, or
words of similar import, the knowledge of its officers and directors (including,
without limitation, Buyer's President, Timothy C. Moses) shall be imputed to be
the knowledge of the Buyer.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
EMD ACQUISITION CORP.
By:
---------------------------------------
Timothy C. Moses, President
LABAMERICA, INC.
By:
---------------------------------------
Gregory Smith, President
SHAREHOLDERS:
-----------------------------------------
David Nelson
-----------------------------------------
Gordon Schuchardt
-----------------------------------------
Gregory Smith, M.D.
-----------------------------------------
Byron M.G. Sanford
-----------------------------------------
Richard Fisher
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DESCRIPTION OF EXHIBITS:
Exhibit A - Basic Provisions
Exhibit B - Officers; Directors; Trade Names; Jurisdictions, Licenses; Permits
Exhibit C-1 - Forms of Business Agreements with Customers
Exhibit C-2 - Copy of all Business Agreements
Exhibit C-3 - Leases
Exhibit C-4 - Claims of Disputes Under Business Agreements
Exhibit C-5 - Consents to Transfer or Assign Not Obtained
Exhibit D - Litigation
Exhibit E - Tangible Assets
Exhibit F - Intellectual Property
Exhibit G - Customer List and Related Information
Exhibit G-1 - Customer Terminations
Exhibit H - Financial Statements
Exhibit I - Bad Debts and Tax Liabilities of the Company
Exhibit J - Assumed Liabilities
Exhibit K - Existing Employment Agreements, Labor or Collective Bargaining Agreements,
Employee Benefit or Welfare Plans, Retirement Plans, Description of Employees
Exhibit L - Excluded Assets
Exhibit M - Liens; Encumbrances
Exhibit N - Noncompetition Agreements for the Company and the Shareholders
Exhibit O - Employment/Consulting Agreements for each of David Nelson and Gregory Smith, M.D._
Exhibit P - Warrant Agreement for each of Shareholders
22
23
EXHIBIT A
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
BASIC PROVISIONS
1. Name of Buyer: EMD ACQUISITION CORP.
2. Name of Company: LABAMERICA, INC.
(a) State of Incorporation of Company: Georgia
(b) Authorized Officers of the Company:
Gregory Smith, M.D., President
David Nelson, Secretary
Gordon Schuchardt, Treasurer
(c) Address of each Site from which the Company conducts the Business:
5579 Chamblee Dunwoody Road, Suite 143; Dunwoody, Georgia 30338
3. Purchase Price: $200,000 in cash
60,000 shares of EMD
Performance Warrants attached as Exhibit P
4. Company's Broker: None
5. Buyer's Broker: None
6. Allocation of Purchase Price among Purchase of Assets:
As determined by Buyer
24
EXHIBIT B
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
OFFICERS: Gregory Luke Smith, MD., President; David Nelson, Secretary; Gordon
Schuchardt, Treasurer
DIRECTORS: Gregory Luke Smith, MD., David Nelson, Gordon Schuchardt
SHAREHOLDERS: Gregory Luke Smith, M.D. (353 shares or 35.3 %), David Nelson (303
shares or 30.3%), Gordon Schuchardt (303 shares or 30.3 %), Byron M. G. Sanford,
Esq. (20.5 shares or 2.05%), Richard Fisher, CPA (20.5 shares or 2.05%)
TRADE NAMES: LabAmerica.com (non-registered); LabAmerica (registered with
Network solutions); LabAnon (registered network solutions)
JURISDICTIONS IN WHICH COMPANY IS DOING BUSINESS: Georgia
GOVERNMENT OR REGULATORY LICENSES, PERMITS, CONSENTS, OR APPROVALS HELD BY THE
COMPANY AND THE SHAREHOLDERS
None
25
EXHIBIT C-1
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
FORMS OF BUSINESS AGREEMENTS WITH CUSTOMERS
NONE
PERSONAL PROPERTY LEASES: None
EQUIPMENT LEASES: None
26
EXHIBIT C-2
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
COPIES OF ALL BUSINESS AGREEMENTS AND VENDOR/SERVICE PROVIDER AND OTHER
AGREEMENTS:
1. "Flash Cash" Agreement between LabAmerica and Western Union is annexed
hereto.
2. Pricing Agreement between LabAmerica and Quest is annexed hereto.
27
EXHIBIT C-3
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
LEASES None
28
EXHIBIT C-4
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
CLAIMS OF DISPUTES UNDER BUSINESS AGREEMENTS
None
29
EXHIBIT C-5
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
CONSENTS TO TRANSFER AND ASSIGNMENT NOT OBTAINED
NONE
30
EXHIBIT E
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
TANGIBLE ASSETS
ALL TANGIBLE AND INTANGIBLE PROPERTY OWNED OR LEASED BY THE COMPANY , INCLUDING,
BUT NOT LIMITED TO, ALL FURNITURE, FIXTURES AND EQUIPMENT, ACCOUNTS RECEIVABLE,
NOTES RECEIVABLE, CONTRACTS, INTELLECTUAL PROPERTY AND THE LIKE.
TELEPHONE NUMBERS:
770-662-5325
- --------------------------
FACSIMILE NUMBERS:
1-800-590-9741
- --------------------------
INTERNET DOMAIN ADDRESSES:
WWW.LABAMERICA.COM
WWW. LABANON.COM__________________________
31
EXHIBIT F
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
INTELLECTUAL PROPERTY
WWW.LABAMERICA.COM
www.labanon.com
32
EXHIBIT G
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
CUSTOMER LIST AND RELATED INFORMATION
This list will be provided at closing, but is not attached due to the
confidential nature of the Customer list and related information.
33
EXHIBIT G-1
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
CUSTOMER TERMINATIONS
None terminated
34
EXHIBIT H
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
FINANCIAL STATEMENTS
ATTACHED HEREWITH
35
EXHIBIT I
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
BAD DEBTS AND TAX LIABILITIES OF THE COMPANY:
None - see accountants letters attached
36
EXHIBIT J
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
ASSUMED LIABILITIES: None
37
EXHIBIT K
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
EXISTING EMPLOYMENT AGREEMENTS, LABOR OR COLLECTIVE BARGAINING AGREEMENTS AND
EMPLOYEE BENEFIT OR WELFARE PLANS AND RETIREMENT PLANS
None
DESCRIPTION OF EMPLOYEES
Gregory Smith, M.D. - Medical Director
David Nelson - Director of Operations
Gordon Schuchardt - Web Master
38
EXHIBIT L
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
EXCLUDED ASSETS - None, except accounts or notes payable and all other
indebtedness by or obligations by the Company of any kind or any claims, damages
or liabilities incurred by the Company of any kind prior to the Closing
including, but not limited to taxes of any kind.
39
EXHIBIT M
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
LIENS; ENCUMBRANCES - None
40
EXHIBIT N
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
NONCOMPETITION AGREEMENTS
None
41
EXHIBIT O
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
EMPLOYMENT/CONSULTANT AGREEMENTS FOR EACH OF DAVID NELSON AND GREGORY SMITH, MD
SEE ANNEXED
42
EXHIBIT P
TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
GREGORY SMITH, DAVID NELSON, GORDON SCHUCHARDT,
BYRON M.G. SANFORD, AND RICHARD FISCHER
AND
EMD ACQUISITION CORP.
AND
LABAMERICA, INC.
WARRANT AGREEMENT FOR EACH OF SHAREHOLDERS:
LABAMERICA SHAREHOLDERS, IN AGGREGATE BASED ON THEIR PRO-RATA RESPECTIVE
OWNERSHIP INTERESTS IN THE COMPANY AS DESCRIBED IN THESE EXHIBITS, ARE ENTITLED
TO RECEIVE WARRANTS TO PURCHASE COMMON STOCK OF PARENT, COMPUTED IN THE
FOLLOWING MANNER:
FIFTEEN PERCENT WARRANT COVERAGE (15%) BASED UPON THE TWELVE (12) MONTHS RETAIL
REVENUES OF LABAMERICA ACTUALLY RECEIVED BY THE COMPANY, BEGINNING MAY 1, 2000.
SUCH WARRANT COVERAGE IS COMPUTED BY MULTIPLYING SUCH DEFINED PERIOD REVENUES BY
15% (.15) AND DIVIDING THE WARRANT COVERAGE AMOUNT BY THE TRADING PRICE OF THE
PARENT'S COMMON STOCK ON APRIL 30, 2001.
TRADING PRICE IS DEFINED AS THE FIVE DAY AVERAGE OF THE CLOSING ASK PRICE OF THE
PARENT'S COMMON STOCK AS TRADED ON A NATIONAL SECURITIES EXCHANGE. IF THE
COMPANY IS NOT SO TRADED PUBLICLY, TRADING PRICE IS DEFINED AS THE MOST RECENT
PRICE THE COMPANY SOLD ITS COMMON STOCK, IN A PRIVATE TRANSACTION, PRIOR TO
APRIL 30, 2001.
THE EXERCISE PRICE FOR SUCH WARRANTS WILL BE THE TRADING PRICE