PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT (the “ Agreement ”)
is made this 2 nd day of September, 2009, by and between
JORNIK, INC., a California corporation, hereinafter (“
Seller ”) and ES RX, INC., a California corporation,
hereinafter (“ Buyer ”).
RECITALS
A. Seller
owns and operates Bell Plaza Pharmacy, located at 6339 S. Atlantic
Avenue, Bell, California 90201(“ Bell
”).
B. Bell
owns certain assets (collectively, the “ Assets
”) consisting of the: (a) Seller’s inventory of stock,
and (b) all of the furniture, fixtures, equipment, computer
hardware and software. Assets do not include Seller’s
accounts receivable, cash on hand and in banks or corporate books
and records.
C. Seller
desires to sell, assign and transfer to Buyer and Buyer desires to
purchase and acquire the Assets from Seller.
AGREEMENT
NOW,
THEREFORE , in
consideration of the terms, covenants, and conditions hereinafter
set forth, and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1.
Purchase and Sale of Assets .
Subject
to the terms and conditions of this Agreement, on the Closing Date
(as defined in Section 4 herein), Seller does hereby agree to sell,
convey, assign, transfer, and deliver to Buyer, and Buyer agrees to
purchase from Seller the Assets.
2.
Consideration .
In
consideration for the sale and transfer of the Assets from Seller
to Buyer, Buyer shall assume responsibility to pay to
Seller’s creditors the maximum sum of Twenty Thousand Dollars
($20,000) (“the Consideration”).
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a. $15,000
of the Consideration shall be applied by Buyer to payment of debts
to Seller’s merchandise vendors (“Vendor
Debts”).
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b. The
remaining $5,000 of the Consideration shall be held by Buyer for a
period of eighteen (18) months from and after the Closing Date, in
an interest bearing account, during which it is to be applied to
the payment of Seller’s debts other than Vendor Debts. Any
Consideration not expended for the payment of Seller’s debts,
after 18 months, shall be released to Seller, together with any
interest which may have accrued.
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3.
Non-Assumption of Liabilities .
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It
is expressly agreed that, other than Buyer’s responsibility
to pay up to a maximum of Twenty Thousand Dollars .to creditors of
Seller, Buyer is not assuming any further responsibility for
Seller’s or Bell’s debts, accounts payable, taxes,
penalties, obligations, or liabilities of or associated with the
Assets or arising out of or relating to events occurring Prior to
the Closing Date, except for sales tax relating to the purchase and
sale of such of the Assets as may be required by the California
State Board of Equalization.
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3.
Closing Date .
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Subject
to the satisfaction or waiver of all conditions precedent as set
forth in this Agreement, the consummation of the purchase and sale
of the Assets and all transactions contemplated herein shall occur
on September 2, 2009 (the “ Closing Date
”).
4.
Conditions Precedent to Closing .
The
closing, and Buyer’s duty to perform, shall be contingent
upon satisfaction or Buyer’s written waiver of the
following:
a. Buyer
shall obtain a temporary permit from the California State Board of
Pharmacy (“ Temporary Permit ”). Buyer agrees to
use commercially reasonable diligent efforts to obtain the
Temporary Permit, and Seller shall reasonably assist Buyer in
obtaining same.
5.
Bill of Sale.
On
the Closing Date, Seller shall deliver to Buyer a duly executed
Bill of Sale, in the form attached hereto as Exhibit
“A”.
6.
Representations and Warranties of Seller .
As
of the date of this Agreement and as of the Closing Date, Seller
represents and warrants to Buyer the following, the truth and
accuracy of each of which shall constitute a condition precedent to
the obligations of Buyer and which shall survive the Closing
Date:
a.
Authority . Seller is a corporation, duly organized,
validly existing, and in good standing under the laws of the State
of California, and has full authority to execute and deliver this
Agreement and consummate the transactions contemplated hereby, and
when executed this Agreement will be a legal, valid and binding
obligation of Seller, enforceable in accordance with its
terms.
b.
Title to Assets . On the Closing Date, Seller shall
convey and transfer to Buyer, good, complete and marketable title
to all of the Assets, free and clear of restrictions or conditions
of transfer or assignment, and free and clear of all defects of
title, claims, security interests or restrictions.
c.
Legal Actions / Adverse Audits . There are no
actions, suits or proceedings pending or threatened against Seller
which, individually or in the aggregate, could have a material
adverse effect on any of the Assets or the transactions
contemplated herein, whether at law or in equity. Seller is not in
default with respect to any order, writ, injunction or decree of
any federal, state or local court, department, agency or
instrumentality, or of any arbitrator, which is directed against
it, and is not in violation of any applicable federal, state or
local statute, law or regulation which would have a material
adverse effect on the transactions contemplated herein or on the
Assets. Seller has not been the subject of any materially adverse
audit conducted by any third party claims payer within the twelve
(12) month period immediately preceding the Closing
Date.
d.
Condition of Assets . All of the Assets are in good
condition and/or repair except for normal wear and tear, and are
fit for the purposes for which they are being used.
7.
Representations and Warranties of Buyer .
As
of the date of this Agreement and as of the Closing Date, Buyer
represents and warrants to Seller the f
