THIS AGREEMENT is made and entered into as of the 1st day of
April 2009, by and among ACCESSIBLE HEALTHCARE SERVICES, INC.,
d/b/a ACCESSIBLE HOME HEALTH CARE, a Florida corporation
(hereinafter referred to as “Seller”), and VALIANT
HEALTHCARE, INC., a Delaware corporation (hereinafter referred to
as “Purchaser”).
WHEREAS , Seller is engaged in the business of marketing
and selling franchises for the operation of home health care
(medical and non-medical) businesses under the name
“Accessible Home Health Care” (the
“Business”); and
WHEREAS , Purchaser desires to purchase from Seller and
Seller desires to sell to Purchaser substantially all of the
assets, property, rights, and claims of the Business as a going
concern on the terms and conditions set forth herein;
NOW THEREFORE IN CONSIDERATION
of their mutual promises and
agreements and the covenants and representations contained herein
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 The Transaction . At Closing,
Seller shall sell, transfer, assign and deliver to Purchaser, and
Purchaser shall purchase, accept, assume and receive, all rights,
title and interest in, to or arising from the Business from and
after the Closing Date, including the Purchased Assets.
1.2 Purchased Assets . The
“Purchased Assets” are all of the assets, properties
and rights as used in, relating to or arising from the conduct of
the Business other than the Excluded Assets (as defined below)
including the following:
(a) All
office furnishings, display racks, shelves, decorations, equipment,
telephone and telecopy numbers, fixtures and supplies used in the
Business;
(b) All
leaseholds, leasehold improvements, fixtures, and other
appurtenances in the leased premises at 210 N. University Drive,
Suite 806, Coral Springs, Florida 33071 (the
“Premises”).
(c) All
inventory located at the Premises or in transit to the Premises, if
any.
(d) All
customer files, all lists of customers, suppliers and vendors, all
rights and claims under customer contracts, orders, service
agreements, purchase orders, and other similar commitments, if
any;
(e) Any
and all documents and records relating to the Purchased Assets or
the operations or products of the Business (including historical
costing and pricing data), and employment and personnel records for
any employees of the Business who are retained by the
Purchaser;
(f) Rights
under contracts, licenses, instruments or other agreements relating
to the Business, if any, including, without limitation, those
certain franchise agreements with all of the franchisees of Seller
and listed on Schedule 1.2 attached hereto and
incorporated by reference herein (collectively, the
“Franchise Agreements”) and that certain lease and any
amendments for the Premises with Coneca Properties, Ltd. (the
“Lease”);
(g) All
information systems, programs, software, websites, URLs domain
names and documentation thereof which are used or intended to be
used in the conduct of the Business;
(h) All
permits, licenses, franchises, product registrations, filings,
authorizations, approvals, and indicia of authority, if any, that
are transferable to conduct the operations of the
Business;
(i) All
other assets, properties, rights, and claims related to the
operation of the Business which arise in or from the conduct
thereof;
(j) Accounts Receivable existing as of the
Closing Date, including, but not limited to, amounts due and valid
claims against students of the Business for goods or services
delivered or rendered or goods to be delivered or rendered in the
ordinary course of business;
(k) Cash,
cash equivalents and marketable securities; and
(l) Contracts of insurance for employee
group medical, dental and life insurance plans, if any.
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1.3 Excluded Assets . The
following assets (the “Excluded Assets”) shall not be
sold or transferred to Purchaser:
(a) Any
interdivisional, intracompany or affiliate receivable, advances or
indebtedness;
(b) Corporate accounting journals and
corporate books of account that comprise Seller’s permanent
accounting or tax records;
(c) Prepaid expenses not assignable to or
assumable by Purchaser;
(d) Refunds pertaining to income tax
obligations of the Seller;
(e) Corporate minute books and records of
Seller;
(f) Any
reserve related to any liability or obligation excluded pursuant to
Section 1.5 hereof;
(g) All
health care related assets that are not related to franchise
operations both domestically and internationally and/or are not
related to Seller’s doing business as Accessible Home Health
Care; and
(h) Any
assets identified on Schedule 1.3 attached
hereto.
1.4 Assumed Liabilities . Except
as provided on Schedule 1.4 hereof, Purchaser shall not
assume and shall not be liable or responsible for any debt,
obligation, or liability of the Business, Seller, or any affiliate
of Seller, or any claim against any of the foregoing, of any kind,
whether known or unknown, contingent, absolute, or otherwise.
Seller shall forever defend, indemnify and hold harmless Purchaser
from and against any and all liabilities and obligations, losses,
claims, damages (including incidental and consequential damages),
costs and expenses (including court costs and reasonable
attorneys’ fees), related to or arising from Seller’s
failure to fully perform and discharge any of its liabilities.
Seller further agrees to pay and discharge all the liabilities
included in its balance sheet as of December 31, 2008 as they
come due.
ARTICLE II
CONSIDERATION FOR TRANSFER
2.1 Purchase Price . The purchase
price (“Purchase Price”) for the Business shall consist
of 10,950,000 shares of Purchaser’s $.0001 par value common
stock.
2.2 Payment of Purchase Price . At
Closing (as defined herein), the Purchase Price shall be paid by
delivery to Seller of a stock certificate executed by the
appropriate officers of Purchaser.
2.3 Allocation of Consideration .
The consideration for the Business and Purchased Assets shall be
allocated by Purchaser and Seller as mutually agreed at Closing.
Such allocation shall be used for all purposes, including
preparation and filing of Internal Revenue Service
Form 8594.
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ARTICLE III
THE CLOSING AND TRANSFER OF ASSETS
3.1 Closing . The transfer of
assets contemplated by this Agreement (the “Closing”),
shall occur at the offices of Seller, 210 N. University Drive,
Suite 806, Coral Springs, Florida 33071, simultaneous with the
execution of this Agreement (the “Closing
Date”).
3.2
Deliveries by Purchaser . At Closing, Purchaser shall
deliver the following:
(a) the
Purchase Price in the form of a stock certificate;
(b) if
necessary, an assumption agreement for any assumed liabilities;
and
(c) Such
other instruments or documents as may be reasonably necessary to
carry out the transactions contemplated hereby.
3.3
Deliveries by Seller . At Closing, Seller shall
deliver the following:
(a) a Bill
of Sale transferring title to the tangible Purchased
Assets;
(b) an
assignment agreement transferring any Purchased Assets that are
intellectual property and/or intangible assets; and
(c) Such
other endorsements, instruments or documents as may be reasonably
necessary to carry out the transactions contemplated
hereby.
Purchaser acknowledges that in order to expedite
the Closing, it may not be possible to obtain consents to the
transfer of the Lease prior to Closing. While Seller shall use
reasonable good faith efforts to obtain such consent prior to the
Closing, Purchaser acknowledges and agrees that the obtaining of
such consent is not a condition to Closing and, to the extent not
obtained, Seller and Purchaser shall use commercially reasonable
efforts to obtain such consent subsequent to Closing. Seller is
making no representations or warranties regarding the ability to
obtain such consent and Purchaser assumes all risk and liability in
the event such consent is not obtained.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller
represents and warrants to Purchaser as of the date hereof, as set
forth below.
4.1 Authority . Seller has full
legal right, power and authority, without the consent of any other
person except for the consents specifically enumerated herein, to
execute and deliver this Agreement and to carry out the
transactions contemplated hereby. All corporate and other acts or
proceedings required to be taken by Seller to authorize the
execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly and properly
taken.
4.2 Validity . This Agreement has
been, and the documents to be delivered at Closing will be, duly
executed and delivered and constitute lawful, valid and legally
binding obligations of the Seller, enforceable in accordance with
its terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium, or similar laws from time to
time in effect which affect creditors’ rights generally, and
by legal and equitable limitations on the enforceability of
specific remedies (“ Enforceability Exceptions”
). The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
result in the creation by Seller of any lien, charge or encumbrance
of any kind on the Purchased Assets, and, except for the Lease,
will not constitute a default under or a breach or result in the
acceleration of any provision of (a) the Articles of
Incorporation or Bylaws of Seller, (b) any contract, agreement
or other instrument to which the Seller or any of the Purchased
Assets is bound, (c) any order, writ, injunction, decree or
judgment of any court or governmental agency binding on or
affecting the Business, or (d) any law, rule or regulation
applicable to the Seller, and will not restrict the ability of the
Purchaser to carry on the Business. Except as specifically set
forth in this Agreement, no approval, authorization, consent or
other order or action of or filing with any court, administrative
agency or other governmental authority is required for the
execution and delivery by Seller of the transactions contemplated
hereby.
4.3 Due Organization . Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Florida, and has
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