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EXHIBIT 10.1
ASSET PURCHASE AND SALE AGREEMENT
AGREEMENT dated this 9th day of December, 2008, (hereinafter
“Agreement”) by and between DAW, INC., d/b/a EATON
APOTHECARY #2050 a Massachusetts corporation, with a notice address
of 13 Water Street, Holliston, Massachusetts 01746,
(“Seller") and MASSACHUSETTS CVS PHARMACY, L.L.C., a
Massachusetts limited liability company, with an office at One CVS
Drive, Woonsocket, Rhode Island 02895 (“Buyer").
WHEREAS, Seller is the operator of a retail drugstore located at 30
Main Street, Topsfield, Massachusetts 01983 (the
“Store”); and Nyer Medical Group
(“Stockholder”) warrants that it owns all of the issued
and outstanding stock of Seller .
WHEREAS, in connection with the operation of the Store, Seller owns
certain prescription files and records which Seller desires to
transfer to Buyer exclusively and certain pharmacy and front store
merchandise inventory which Seller desires to sell and Buyer
desires to purchase upon the terms hereinafter set forth; and
In order to induce Buyer to purchase the assets (as hereinafter
defined) Stockholder has entered into as of the date hereof, a
guaranty of Seller’s obligations hereunder.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, and for other good and valuable
consideration, Buyer and Seller agree as follows:
1. TRANSFER OF ASSETS - PURCHASE PRICE -
Subject to the terms and conditions of this Agreement, on the Date
of Inventory (hereinafter defined), Seller shall sell, transfer,
assign and convey to Buyer, free and clear of all liens and
security interests, the following described assets associated with
the Store(“Assets”).
(a) Merchandise Inventory. Shall include all
prescription merchandise and front store merchandise (the
“Merchandise Inventory”) set forth in Schedule A (the
“Inventory Instructions”). The purchase price for the
prescription merchandise shall be determined by the cost factors
listed in the Inventory Instructions not to exceed a
maximum of $350,000.00. The purchase price for the front store
merchandise shall be determined by the cost factors listed in the
Inventory Instructions not to exceed a maximum of $80,000.00.
(b) Prescription Files (i) As part of
the assets being sold hereunder, Seller shall transfer to Buyer
title and possession of all prescription files records and data
utilized and/or generated by Seller in the course of operating its
licensed pharmacy from the Date of Inventory (hereinafter defined)
and going back no less than six (6) years (or for such shorter
period if Seller did not operate for six (6) years prior to the
Date of Inventory). The prescription files records and
data shall include all hard copy prescriptions, customer lists, and
all electronic data maintained in any format by Seller (hereinafter
“Seller’s RX Data”). Seller will work
in good faith with Buyer to transfer Seller’s Rx Data in the
most effective and efficient manner. Seller shall
cooperate fully with Buyer at least thirty (30) days prior to the
Date of Inventory in Buyer’s efforts to convert or download
Seller’s RX Data, as determined in the sole discretion of
Buyer.
(ii) The purchase price for Seller’s RX Data to be delivered
to Buyer exclusively shall be $500,000.00. Seller’s RX Data
shall not be shared with a third party, shall not be diminished, or
removed from the Store between the date of execution of this
Agreement and the Date of Inventory (hereinafter defined). Payment
for Seller’s RX Data shall be paid to the Seller or at
Buyer’s option, paid to Seller’s secured creditors.
Payment shall be delivered at Closing.
(c) Telephone. At no additional cost to
Seller, Seller agrees to cooperate with Buyer in the transfer of
the telephone lines and number(s), used in the operation of the
Store. The transfer will occur on the Date of Inventory
(hereinafter defined). Buyer shall facilitate the
transfer. Seller shall be solely responsible for the
cancellation of, and final payment for, any telephone lines or
services NOT forwarded to the Buyer’s store. This
includes, but is not limited to, telephone lines, FAX lines, modem
lines, equipment leases and advertising.
(d) Pharmacy Computer. At no additional
cost to Buyer, Seller agrees that Buyer will have full right to use
Seller’s pharmacy computer including hardware, software
and printer (the “Computer”) for a period of 180 days
from the Date of Inventory. Seller warrants that the Computer shall
be in working order on the Date of Inventory and Seller shall
provide Buyer with the name and telephone number of Seller’s
software and hardware maintenance vendors and contact person, if
any, prior to the Date of Inventory. On the Date of Inventory,
Buyer shall remove the Computer to Buyer’s store. In
consideration for the use of the Computer, Buyer agrees to be fully
responsible for the Computer while in its possession. Buyer shall
return the Computer to Seller upon the expiration of the 180 day
period, with all data, including patient information, eradicated
from it, but otherwise in the same condition as received, ordinary
wear and tear excepted.
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(e) Goodwill. All goodwill with respect to
the Assets being sold hereunder shall be transferred to Buyer as
part of the sale.
(f) Excluded. This sale does not include the
furniture, trade fixtures, trademarks, service marks, cash, or
accounts receivable of Seller. Further, Buyer shall not
assume any liability of any nature of Seller as a result of this
transaction.
(g) Purchase Price. The amounts payable under
Articles 1(a), 1(b), and 6(b) are hereinafter referred to as the
“Purchase Price”.
2. CONDUCT OF BUSINESS –
Seller agrees to carry on its business in the Store premises in its
usual and customary manner up to the Date of Inventory (hereinafter
defined).
3. STORE CLOSING - PAYMENT OF PURCHASE PRICE -
(a) Store Closing. On the evening prior to the Date
of Inventory, Seller shall close the Store to the general public
and the Store shall remain closed thereafter. Seller
shall, within thirty (30) days of the Date of Inventory, remove all
fixtures and interior and exterior signage in reference to the
Store.
(b) Date of Inventory. A physical inventory
of the Store shall be taken on December 27, 2008, (the “Date
of Inventory”) or such other date mutually agreed upon. RGIS
Inventory Service and/or any other independent firm (the
“Inventory Service”) shall conduct the physical
inventory, at Buyer’s expense using the categories and cost
factors listed in the Inventory Instructions, attached hereto and
made a part hereof. If for any reason the Date of
Inventory has not occurred by January, 27, 2008, then either party
may elect to terminate this agreement by written notice given to
the other and upon giving such notice, both parties shall be
released of all future liabilities or obligations hereunder.
(c) Time and Place of Closing. The closing of
the purchase and sale of all the inventory and any other Assets
being sold hereunder shall take place by facsimile transmission of
documents including counterpart signature pages (with hard copy to
follow) on a date, which shall be in no event later than three (3)
business days (hereinafter the “Closing”) following the
date of the actual taking of the inventory, or at such other time
and place or in such manner as Buyer and Seller may agree. Buyer
shall not be required to make any payment hereunder until Buyer has
received a fully executed Bill of Sale and Closing Statement in a
form attached hereto as Schedule B. Buyer shall pay to
Seller the Purchase Price by wire transfer to an account to be
supplied by Seller, minus any amounts paid directly by check or
wire transfer to Seller's secured creditors. By
execution of this Agreement, the Seller warrants and represents to
Buyer that it agrees to the manner and form of payment described in
the preceding sentence and that Buyer, upon making said
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payment in said manner and form, shall conclusively be deemed to
have fulfilled its payment obligations hereunder.
(d) Creditor List and Payoff Letters. On the
date Seller executes this Agreement Seller shall provide a list of
secured creditors, which shall be attached as Schedule C and made a
part hereof. The list shall contain the names, addresses, as well
as the amount owed, and the name of any persons who may assert
claims even though the claim may be disputed. The list of creditors
may be computer generated, typed, or hand written, and must be
signed by Seller. As a condition of closing, Buyer shall have
received an updated creditor list and copies of pay-off letters in
a form satisfactory to Buyer from such secured creditors as may be
required by Buyer.
(e) Seller and Buyer acknowledge that they have
negotiated in good faith regarding the allocation of the purchase
price. Buyer and Seller each agree to separately file Form 8594
with its federal income tax return for the tax year in which the
closing of the Store occurs, and that neither Seller nor Buyer will
take a position on any income, transfer or gains tax return, before
any governmental agency charged with the collection of any such tax
or in any judicial proceeding, that is in any manner inconsistent
with the terms of any allocation herein, without the written
consent of the other. Seller’s Employer
Identification Number is 04-2424924.
4. SUBJECT TO AUDIT
This Agreement is subject to an Audit to be conducted by Buyer two
(2) weeks prior to the Date of Inventory (the “Audit”).
The parties shall mutually agree on a time and date for the Audit.
The Audit must disclose that Seller has filled an average of 811
prescriptions per week from the Store for the last six (6) months
prior to the Audit. If Seller has failed to fill the
required prescriptions per week in the six (6) month period, Buyer
shall have the right to terminate this Agreement. Further, upon
demand Seller agrees to provide Buyer with invoices of all brand
name and generic name prescription drugs for the (6)
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