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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): July 24, 1998
HORIZON PHARMACIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-22403 75-2441557
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
275 W. PRINCETON DRIVE
PRINCETON, TEXAS 75407
(Address of Principal Executive Offices) (Zip Code)
(972) 736-2424
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
ACQUISITION OF MARTIN DRUG CORPORATION ASSETS. On July 24, 1998, the
Registrant acquired substantially all of the assets of Martin Drug Corporation
d/b/a Interurban Pharmacy (the "Martin Store"), comprising primarily pharmacy
files, equipment, inventory and supplies. The Registrant acquired the assets
through arm's-length negotiations with David DeVido, the sole shareholder of the
Martin Store.
Prior to this transaction, no material relationships existed between the
Martin Store and the Registrant or any of its affiliates, any director or
officer of the Registrant, or any associate of such director or officer.
The consideration for the acquisition consisted of: (i) $500,000 cash
payable at closing; and (ii) 11,388 shares of the Registrant's Common Stock,
par value $.01 per share (the "Registrant's Common Stock").
The Registrant intends to continue the Martin Store's operations under the
HORIZON Pharmacies, Inc. name. In connection therewith, the Registrant has
secured a real estate lease covering the current retail location of the Pharmacy
and has secured a valid Texas license to do business at that location under the
HORIZON Pharmacies, Inc. name.
ACQUISITION OF CARLEN CORPORATION ASSETS. On July 25, 1998, the Registrant
acquired substantially all of the assets of Carlen Corporation d/b/a Briargrove
Pharmacy (the "Carlen Store"), comprising primarily pharmacy files, equipment,
inventory and supplies. The Registrant acquired the assets through arm's-length
negotiations with David DeVido, the sole shareholder of the Carlen Store.
Prior to this transaction, no material relationships existed between the
Carlen Store and the Registrant or any of its affiliates, any director or
officer of the Registrant, or any associate of such director or officer.
The consideration for the acquisition consisted of: (i) $465,000 cash
payable at closing; and (ii) 55,321 shares of the Registrant's Common Stock.
The Registrant intends to continue the Carlen Store's operations under the
HORIZON Pharmacies, Inc. name. In connection therewith, the Registrant has
secured a real estate lease covering the current retail location of the Pharmacy
and has secured a valid Texas license to do business at that location under the
HORIZON Pharmacies, Inc. name.
ACQUISITION OF STIRNIMINN, INC. ASSETS. On July 26, 1998, the registrant,
HORIZON Pharmacies, Inc. ("Registrant"), acquired substantially all of the
assets of Stirniminn, Inc. d/b/a Kirkwood Pharmacy (the "Stirniminn Store"),
comprising primarily pharmacy files, equipment, inventory and supplies. The
Registrant acquired the assets through arm's-length negotiations with David
DeVido, the sole shareholder of the Stirniminn Store.
Prior to this transaction, no material relationships existed between the
Stiriniminn Store and the Registrant or any of its affiliates, any director or
officer of the Registrant, or any associate of such director or officer.
The consideration for the acquisition consisted of: (i) $150,000 cash
payable at closing; and (ii) 18,061 shares of the Registrant's common stock.
The Registrant intends to continue the Stirniminn Store's operations under
the HORIZON Pharmacies, Inc. name. In connection therewith, the Registrant has
secured a real estate lease covering the current retail location of the Pharmacy
and has secured a valid Texas license to do business at that location under the
HORIZON Pharmacies, Inc. name.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED.
It is impracticable at this time to provide the required financial
statements of the acquired business described in Item 2. This information will
be provided within 60 days by an amendment to this report.
(b) PRO FORMA FINANCIAL INFORMATION.
See (a) above.
(c) EXHIBITS.
The following exhibits are filed with this report:
<TABLE>
Exhibit No. Name of Exhibit
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<S> <C>
2.1 Purchase Agreement dated July 24, 1998 by and
between Martin Drug Corporation d/b/a Interurban
Pharmacy, a Texas corporation, and HORIZON
Pharmacies, Inc. Omitted from this Agreement, as
filed, are the exhibits thereto. The Registrant
will furnish supplementally a copy of any such
omitted exhibits to the Commission upon request.
2.2 Purchase Agreement dated July 25, 1998 by and
between Carlen Corporation d/b/a Briargrove
Pharmacy, a Texas corporation, and HORIZON
Pharmacies, Inc. Omitted from this Agreement, as
filed, are the exhibits thereto. The Registrant
will furnish supplementally a copy of any such
omitted exhibits to the Commission upon request.
2.3 Purchase Agreement dated July 26, 1998 by and
between Stirniminn, Inc. d/b/a Kirkwood Pharmacy,
a Texas corporation, and HORIZON Pharmacies, Inc.
Omitted from this Agreement, as filed, are the
exhibits thereto. The Registrant will furnish
supplementally a copy of any such omitted exhibits
to the Commission upon request.
2.4 Amendment No. 1 to the Purchase Agreement dated
July 24, 1998.
2.5 Amendment No. 1 to the Purchase Agreement dated
July 25, 1998.
</TABLE>
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
REGISTRANT:
HORIZON PHARMACIES, INC.
Date: August 6, 1998 By: /s/ Ricky D. McCord
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Ricky D. McCord, President
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PURCHASE AGREEMENT
AGREEMENT made the 24th day of July, 1998 between Martin Drug
Corporation, a Texas Corporation ("Seller"), and HORIZON Pharmacies,
Inc., a Delaware Corporation ("Buyer").
W I T N E S S E T H
WHEREAS, Seller operates a retail pharmacy doing business as
Interurban Pharmacy, (the Drug Store") located at 12510 Memorial Drive,
Houston, Texas 77024 (the "Retail Location").
WHEREAS, Seller desires to sell to Buyer and Buyer desires to
purchase certain assets utilized in connection with and as part of
Seller's operation of the Drug Store upon the terms and conditions
stated herein:
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. SALE OF ASSETS.
1.1 ASSETS TO BE PURCHASED Seller hereby agrees to convey, transfer,
assign, and deliver to Buyer on a going concern basis, and Buyer
hereby agrees to purchase from Seller all of Seller's assets
located at or used in connection with Seller's operation of the
Drug Store including but not limited to:
A. MARKETABLE INVENTORY. All marketable pharmaceutical and retail
inventory of Seller held for retail sale by the Drug Store, a
summary of which is attached as Exhibit "C".
B. PRESCRIPTION FILES AND PATIENT PROFILES. All prescription files,
patient profiles and customer list and telephone numbers.
C. FURNITURE, FIXTURES AND EQUIPMENT. Supplies and all furniture,
fixtures, equipment described in Exhibit "A" attached hereto and
made a part hereof, including but not limited to computers,
peripherals, cash registers, refrigerators, typewriters,
microfiche, fax machines, copiers, sound system, alarm system,
telephone equipment, shelving, counters, bottles, vials, ointment
jars and other usable supplies.
D. COPYRIGHTS, TRADE NAMES, AND TRADEMARKS. All copyrights, trade
names and trademarks associated with the Pharmacy Location (s)
including, but not limited to Interurban Pharmacy and all
variations thereof.
1.2 ASSETS NOT PURCHASED BY BUYER Unless otherwise agreed by the
parties in writing, Buyer shall not purchase the following:
(I) consigned merchandise; (ii) merchandise held in layaway;
(iii) merchandise which is damaged; (iv) merchandise which is
unsalable because its expiration date has expired; or (v) prescription
merchandise expiring within 30 days or prescription merchandise or
over-the-counter drugs which are (a) in a partially filled container
with a date which will expire within 30 days of the closing date; or
(b) in a full, sealed container with a date which is expired; (vi)
all accounts receivable for services rendered on or before closing,
including, but not limited to, third party insurance receivables,
individual charge account receivables, and Worker's Compensation
receivables; (vii) and Seller's full interest in a class action
lawsuit brought against certain pharmaceutical companies based on
claims of anti-trust and other legal violations, which lawsuit is
currently pending.
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1.3 TELEPHONE NUMBERS. Seller agrees to use all reasonable efforts and
take all action necessary to assure that all telephone numbers used
at the Drug Store shall be transferred without interruption to Buyer.
1.4 POST OFFICE AND LOTTERY. Buyer acknowledges that a portion of the
premises is being used as Post Office and that the Seller sells
Lottery tickets. Additionally, Buyer acknowledges that Buyer is
responsible for making the necessary arrangements to continue both
services.
2. PURCHASE PRICE.
2.1 COMPUTATION. The purchase price to be paid by the Buyer for the
Drug Stores Assets shall be computed as follows: (i) $180,000 for
prescription files, patient profiles, furniture, fixtures,
equipment, and goodwill; plus (ii) the discounted fair market value
of all inventory constituting a part of the Drug Store Assets
determined in accordance with Section 2.6, below;
2.2 ALLOCATION. The total purchase price described in Section 2.1,
above, shall be allocated as set forth in Exhibit "B" attached
hereto and made a part hereof.
2.3 PAYMENT OF THE PURCHASE PRICE. Buyer shall cause the purchase
price to be paid to Seller as follows:
(a) $200,000 on the Closing Date by Company, certified or cashier's
check (less the Earnest Money Deposit as such term is defined in
Section 2.4, below);
(b) Shares of Buyer's common stock, par value $ .01 per share (the
"HORIZON Common Stock"), equivalent to $462,203.00 based upon
the average closing price for the HORIZON common stock as
reported in the Wall Street Journal for the ten (10) business
days immediately preceding the Closing Date, as such term is
defined in Section 7.1, below. The dollar amount will be equal
to the actual valuation of the store inventory plus or minus
any adjustments pursuant with 2.3(c) and 2.3(d).
(c) Buyer shall deduct from the purchase price payable at Closing
an amount equal to the sum of (i) Seller's pro rata share of
personal property taxes as described in Section 2.5.2, below, and
(ii) one half of the fee charged by the third party inventory
service.
(d) Additionally, Buyer and Seller shall prorate rent and utilities
for the month of July upon presentation of invoices by Buyer
(which may occur after closing) and Buyer shall purchase petty
cash and register cash from Seller at closing and reimburse
Seller for any security deposit on deposit with the landlord
for the retail location.
(e) Adjustments to the total purchase price, up or down, based on the
actual inventory shall be made in the number of shares of Buyer's
common stock given as consideration.
2.4 EARNEST MONEY DEPOSIT. Buyer herewith deposits with ___________
_________ (the "Escrow Agent"), the sum of $5,000 (the "Earnest
Money Deposit")), which sum shall be applied to the cash portion
of the purchase price at Closing. In the event Seller fails to
perform each and every covenant and condition required hereunder,
Buyer may terminate this Agreement by giving Seller written notice
and Seller shall return the Earnest Money to Buyer within three (3)
days of Seller's receipt of such notice. In the event Buyer fails
to perform each and every obligation hereunder, Seller may
terminate this Agreement and retain the
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Earnest Money as liquidated damages. The remedies provided in this
Section shall be the exclusive remedies for a breach of this Section.
2.5 TAXES
2.5.1 SALES, USE, AND TRANSFER TAXES Buyer shall pay any and all
sales, use, and transfer taxes arising out of the sale of the
Drug Store Assets pursuant to this Agreement.
2.5.2 PERSONAL PROPERTY TAXES. Seller shall pay all personal
property taxes attributable to the Drug Store Assets for the
period up to and including the Closing Date, and Buyer shall
pay all personal property taxes attributable to the Drug Store
Assets for the period following the Closing Date. The parties
shall, using last year's tax returns, estimate as of the
Closing Date the personal property taxes anticipated to be
owed on the Drug Store Assets for the current calendar year,
and Seller's pro rata portion of such estimated taxes shall be
withheld by Buyer from the purchase price described in Section
2.3, above.
2.6 INVENTORY EVALUATION A physical inventory of the Drug Store Assets
shall be performed on the Closing Date by an independent third
party inventory service. Each party shall pay one-half of the fee
charged by the service company, with Seller's pro rata share of
such costs to be deducted from the purchase price payable by Buyer
at Closing. For purposes of calculating that portion of the
purchase price attributed to inventory under Section 2, above, the
marketable inventory shall be valued as follows, except as
otherwise provided herein:
<TABLE>
Marketable Inventory Method of Valuation
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<S> <C>
Prescription inventory Acquisition cost or AWP less 16%
except for special deal prescription
items or generic items which shall be
valued at acquisition cost
Non-Prescription inventory Acquisition cost
</TABLE>
In the event Seller is unable to establish the acquisition cost of any
non-prescription inventory, the following formula shall be applied in
valuing such inventory.
<TABLE>
Category of Merchandise Method of Valuation
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<S> <C>
HBA Retail price less 25%
OTC Retail price less 25%
Gifts Retail price less 50%
Cards Retail price less 50%
Cosmetics Retail price less 33 1/3%
Watches/Cameras Retail price less 33 1/3%
Fragrances Retail price less 25%
Candy (box) Retail price less 40%
Candy (loose) Retail price less 30%
Jewelry Retail price less 50%
Miscellaneous Retail price less 50%
Seasonal Merchandise Retail price less 50%
</TABLE>
3. REPRESENTATIONS AND WARRANTIES.
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3.1. The Seller does hereby represent and warrant to Buyer as follows:
3.1.1 ORGANIZATION. Seller is a corporation duly organized and
existing in good standing under the laws of its state of incorporation
and is entitled to own and lease its properties and to carry on its
business as and in the places where such properties are now owned,
leased or operated and such business is conducted.
3.1.2 AUTHORITY. The execution, delivery and performance of this
agreement by Seller has been duly authorized by all necessary
corporate action and constitutes a legal, valid, and binding
obligation on Seller enforceable in accordance with its terms.
3.1.3 TITLE TO PROPERTIES. The Seller has good and marketable
title to all of the Drug Store assets, free and clear of all
mortgages, liens, encumbrances, pledges, or security interests of
any nature whatsoever, except for secured debts, if any, listed on
Exhibit "D" attached hereto which shall be satisfied and released
at or prior to closing.
3.1.4 BOOKS AND RECORDS. Seller's books and records which have been
provided to Buyer for inspection are true, correct and complete, and
contain no material omission with respect to Seller's business,
operation or status.
3.1.5 STATEMENTS NOT MISLEADING. No representation, warranty or
other information disclosed to Buyer in connection with this Agreement
omits or will omit to state the material facts necessary to make such
representation, warranty or information not misleading.
3.1.6 COMPLIANCE WITH APPLICABLE LAWS. Seller has received no
notice of violation of any applicable law, regulation or
requirement relating to the operation of the Drug Store, the Drug
Store Assets or the Retail Location, and Seller has no knowledge of
or reason to believe any such violation exists. Seller is in full
compliance with all wages and hour laws, and to the best of its
knowledge is not engaged in any unfair labor practice or
discriminatory employment practice and no complaint of any such
practice against Seller is filed or threatened to be filed with or
by the National Labor Relation Board, the Equal Employment
Opportunity Commission or any other administrative agency, Federal
or state, that regulates labor or employment practices, nor is any
grievances filed or threatened to be filed against Seller by any
employee pursuant to any collective bargaining or other employment
agreement to which Seller is a party. To the Seller's best
knowledge it is in compliance with all applicable Federal and state
laws and regulations regarding occupational safety and health
standards and has received no material complaints from any Federal
or state agency or regulatory body alleging violations of any such
laws and regulations. The Drug Store and the use and operation
thereof are currently in compliance with all applicable laws,
ordinances, rules and regulations relating to public health and
safety and protection of the environment. Seller has not released,
generated, discharged, manufactured, treated, transported or
disposed of hazardous material on, in, under or from the Drug Store
or placed or stored any hazardous material on the property. To the
best of Seller's knowledge, (a) no release, generation, discharge,
manufacture, treatment, transportation or disposal of hazardous
material has occurred on, in, under or from the Drug Store, (b) no
hazardous material is or has been stored or otherwise located on,
in or under the Drug Store, and (c) there are no underground
storage tanks on the Drug Store premises. There are no pending or
to the best of Seller's knowledge threatened requests for
information, action or proceedings from or by any governmental
agency or any other person or entity regarding the condition or use
of the
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Drug Store or the release, generation, discharge, manufacture,
treatment, transportation or discharge of hazardous material on,
in, under or from the Drug Store.
3.1.7 CONTRACTS. Seller is not a party to any contract,
understanding or commitment whether in the ordinary course of
business or not, relating to Seller's operation of the Drug Store
which extends beyond the Closing Date except those listed on
Exhibit "F", which Buyer agrees to assume.
3.1.8 EMPLOYMENT CONTRACTS. Seller is not a party to any oral or
written contract of employment between Seller and any officer or other
employee, and the employment of each of Seller's officers and all the
Drug Store's employees is terminable at will without any penalty or
severance obligation of any kind.
3.1.9 LITIGATION. Seller is not a party to and has no knowledge
of any suit, action, proceeding, investigation, claim, complaint or
accusation pending or threatened against or affecting Seller or the
Drug Store Assets, in any court or before any arbitration panel of
any kind or before or by any Federal, state, local, foreign or
other government agency, department, commission, board, bureau,
instrumentality or body, and to the best knowledge and belief of
Seller, there is no basis for any such suit, action, litigation,
proceeding, investigation, claim, complaint or accusation. There
is no outstanding order, writ, injunction, decree, judgment or
award by any court, arbitration panel or government body against or
affecting Seller, Drug Store, the Drug Store Assets or the Retail
Location.
3.1.10 EMPLOYEE BENEFITS All sums due for employee compensation
and benefits and all vacation time owing to any employees of Seller
have been duly and adequately accrued and reflected in the
accounting records of Seller. Seller shall be responsible for all
employee benefits, including but not limited to payment for accrued
vacation, to the Closing Date. To the Seller's best knowledge, all
employees of Seller are either United States citizens or resident
aliens specifically authorized to engage in employment in the
United States in accordance with all applicable laws.
3.1.11 TAXES.
(a) Seller has filed all required Federal, state, local,
foreign and other tax returns, notices and reports
(including, but not limited to, income, property, sales,
use, franchise, capital, stock, excise, added value,
employee's income withholding, social security and
unemployment tax returns) heretofore due; and to Seller's
best knowledge all such returns, notices, and reports are
correct, accurate, and complete.
(b) Seller has made all deposits required to be made in
connection with any tax including but not limited to,
estimated income, franchise, sales, use, and employee
withholding taxes.
3.1.12 INVESTMENT PURPOSE. Seller is acquiring the HORIZON Common
Stock for investment, and not with a view to the sale or
distribution thereof. Seller understands and acknowledges that the
transfer of the HORIZON Stock issuable hereunder will be restricted
and that Seller may not sell or otherwise dispose of such shares
unless and until a registration statement under the Security Act of
1933, as amended (the "Securities Act"), is in effect with respect
thereto and Seller has fully complied with the Securities Act and
all applicable regulations thereunder, or Seller has received an
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opinion from Buyer's counsel that the contemplated sale or other
disposition of the HORIZON Common Stock will not require
registration under the Security Act.
3.1.13 INSURANCE. All inventories, buildings and fixed assets
owned or leased by Seller are and will be adequately insured
against fire to the Closing Date, valid policies therefor are and
will be outstanding and in force, and the premiums will be paid
before the Closing Date.
3.1.14 NO CHANGES. Until the Closing Date, Seller will not, except
with Buyer's prior written consent: (i) conduct its business except
in the regular and ordinary course; (ii) increase the amount of
compensation currently being paid to employee or agent, or make any
bonus arrangement with any employee or agent; (iii) enter into any
transaction other than in the ordinary course of business; or (iv)
pay out of assets being sold to Buyer any debt, obligation or
liability which Buyer has not agreed to assume under the terms of
this Agreement.
3.2 Buyer does hereby represent and warrant to Seller as follows:
3.2.1 ORGANIZATION. Buyer is a corporation duly organized and
existing in good standing under the laws of Delaware, and is
entitled to own or lease properties and carry on its business as
and in the places where such properties are now owned, leased or
operated and such business is now conducted.
3.2.2 COMMON STOCK. Buyer has authorized 14,000,000 shares of
HORIZON Common Stock of which approximately 5,400,000 shares are
currently issued and outstanding, and 1,000,000 share of preferred
stock, par value $0.01 per share, none of which are currently
issued and outstanding.
4. CONDITIONS TO CLOSING.
4.1. BUYER'S CONDITIONS TO CLOSING. All obligations of Buyer
under this Agreement are subject to the fulfillment, prior
to or at Closing, of each of the following conditions
(unless waived in writing by Buyer).
4.1.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement shall be
true and complete at the Closing Date as if they were made
at such time.
4.1.2 COMPLIANCE. Seller shall have performed and complied with
all terms and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing
Date.
4.1.3 CONSENTS. All necessary consents to the transfer of the
Drug Store Assets have been obtained from vendors and
other third party, if any.
4.1.4 NO CASUALTY. The Drug Store's business and property shall
not have been adversely affected in any material way as a
result of any strike, lock-out, accident or other casualty
or act of God or the public enemy, or any judicial,
administrative or governmental proceeding.
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4.1.5 LEASE OF RETAIL LOCATION. Buyer shall have executed a lease
assignment covering the Retail Location.
4.1.6 LICENSE TO OPERATE RETAIL PHARMACY. Buyer shall have obtained
a valid license to operate a retail pharmacy under the HORIZON
Pharmacies, Inc. name in the state of TEXAS.
4.2 SELLER'S CONDITIONS TO CLOSING. All obligations of Seller under
this Agreement are subject to the fulfillment, prior to or at Closing,
of each of the following conditions (unless waived in writing by
Seller).
4.2.1 REPRESENTATIONS. The representations and warranties of Buyer
contained in this Agreement shall be true and complete at the
Closing Date as if they were made at such time.
4.2.2 COMPLIANCE. Buyer shall have performed and complied with all
terms and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date.
4.2.3 INSURANCE. Buyer shall have documentation of insurance
coverage.
5. LIABILITIES NOT ASSUMED BY BUYER. The parties expressly agree and
acknowledge that Buyer shall not, by virtue of this Agreement, the
consummation of the transactions contemplated herein or otherwise,
assume any liabilities or obligations of Seller or any liabilities or
obligations constituting a charge, lien, encumbrance or security
interest upon the Drug Store Assets, regardless of whether such
liabilities or obligations are absolute or contingent, liquidated or
unliquidated or otherwise; except as provided in Section 3.1.7
6. INDEMNIFICATION.
6.1 SELLER'S INDEMNIFICATION OF BUYER. Seller and DAVID DEVIDO shall
indemnify and hold harmless Buyer against and in respect of any and
all liabilities concerning or otherwise connected to the conduct or
operation of the Drug Store as of or prior to the Closing Date, and
with the exception of liabilities expressly assumed by Buyer, all
liabilities and obligations of the Seller, of every kind and
description, regardless of whether such liabilities or obligations
are absolute or contingent, liquidated or unliquidated, accrued or
otherwise, and regardless of how and when the same may have arisen,
which are asserted against Buyer as a result of this Agreement or
the consummation of the transactions contemplated herein. Seller
and David DeVido also indemnify, defend, and hold harmless Buyer
against and in respect of any cost, damage, expense, liability or
loss incurred or suffered by Buyer resulting from or arising out of
the breach, inaccuracy, misrepresentation or untruth of any
representation or warranty which survives the Closing, or the
nonfulfillment of the post-closing agreements of Seller, including
without limitation the agreements of Seller set forth in Section
8.5 regarding access to records in order for Buyer to conduct an
audit of the last two (2) fiscal years and unaudited financial data
up to the Closing Date. The foregoing indemnifications shall be
joint and several, and indemnified costs and expenses shall include
reasonable attorney's fees and related expenses. The right of
indemnification shall be in addition to and shall not operate as a
limitation on any other right or remedy pursuant to this agreement
or any document or instrument executed in connection with the
consummation of the sale and
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purchase of the Drug Store. The provisions of this paragraph shall
survive the closing of this transaction for a period of one (1) year.
6.2 BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify and hold
harmless Seller against and in respect of any and all liabilities
concerning or otherwise connected to the conduct or operation of the
Drug Store following the Closing Date, or arising out of any
misrepresentation or breach of any of the provisions contained herein.
The provisions of this paragraph shall survive the closing of this
transaction for a period of one (1) year.
7. CLOSING.
7.1 CLOSING DATE. The closing shall take place at the Retail Location
on or before July 24, 1998 (the "Closing Date") but in no event
later than August 8, 1998 unless otherwise agreed by the parties in
writing.
7.2 SELLER'S OBLIGATIONS AT CLOSING. Seller shall deliver to Buyer at
closing of this Agreement a Bill of Sale effective to vest in Buyer
good and marketable title to the Drug Store Assets, free and clear
of all mortgages, security interest, liens, encumbrances, pledges
and hypothecation of every nature and description and all other
instruments and documents that are necessary or appropriate to the
sale and delivery of the Drug Store Assets.
7.3 BUYER'S OBLIGATIONS AT CLOSING. Buyer shall deliver to Seller at
closing: (i) a check for the cash portion of the purchase price
provided for in Section 2.3 made payable to Seller and Seller's
secured lender; and (ii) evidence that the shares of Common Stock
provided for in Section 2.3.(b) shall be promptly delivered.
8. MISCELLANEOUS.
8.1 SURVIVAL OF REPRESENTATION, WARRANTIES AND INDEMNIFICATIONS. All
of the representations, warranties and indemnifications of the
parties set forth in this Agreement shall survive the Closing
hereof. The provisions of this paragraph shall survive the closing
of this transaction for a period of one (1) year.
8.2 RISK OF LOSS. The risk of loss of damages of Drug Store Assets shall
be upon Seller until the closing hereof.
8.3 COVENANT NOT TO COMPETE. Except as otherwise provided herein,
David DeVido shall not, for a period of six (6) years after the
Closing Date, directly or indirectly own an equity interest in,
operate, manage or assist any person or entity other than Buyer in
operating or managing, any business which includes a retail
pharmacy, nursing home or home health care company, or which offers
for sale or lease durable medical equipment within a five (5) miles
radius of store location, excluding Shan-La, inc. d/b/a Park Plaza
Pharmacy, located at 1213 Hermann Drive, Suite 140, Houston, Texas
77004. The parties expressly agree that David DeVido may serve no
more than one (1) day per week as a relief pharmacist at retail
pharmacies not owned or
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<PAGE>
operated by Buyer. The parties acknowledge that the territorial
and time limitations contained in the paragraph are reasonable and
properly required for the adequate protection of the business to be
conducted by Buyer with the assets and properties to be transferred
hereunder and can not be changed except by written permission of
Buyer.
8.4 RIGHT TO ENJOIN BREACH. The parties agree that in the event of a
breach by Seller of any provision of this paragraph, monetary
damages alone would be inadequate and Buyer shall, in addition to
all other legal remedies, be entitled to obtain an order enjoining
Seller from violating the covenants set forth herein.
8.5 ACCESS TO RECORDS. Seller shall give Buyer, its counsel,
accountants and representatives, reasonable access during normal
business hours to all of Seller's books, contracts, commitments and
records and furnish Buyer with all information which Buyer
reasonably may request to conduct a financial audit of the last two
(2) fiscal years and unaudited financial data up to Closing Date at
Buyer's expense. The Buyer's audit will be conducted after the
Closing Date.
Seller and David DeVido agree and certify that they are aware that
the post-Closing audit by Buyer is required in order to satisfy
Buyer's regulatory reporting and disclosure requirements and for
Buyer's general business purposes, that their prompt and complete
cooperation and compliance with the provisions of this Section are
required in order for such audit to be completed on a thorough and
timely basis and that their failure to cooperate and comply could
subject them to a claim to be indemnified, defended and held
harmless or for other remedies available under this agreement or
pursuant to applicable law or regulation.
8.6 SELLER'S COLLECTION OF ACCOUNTS RECEIVABLE. Buyer acknowledges and
agrees that Seller will need assistance from Drug Store employees
to properly direct collections on account and to properly allocate
between Buyer and Seller based upon the invoice date referenced by
the payment.
8.7 GOVERNING LAW. This agreement shall be governed and construed in
accordance with the laws of the state of Texas.
8.8 ENTIRE AGREEMENT MODIFICATION. This agreement contains the entire
agreement between the parties, and no representations, warranties
or promises, unless contained herein, shall be binding upon the
parties hereto, their successors and assigns. This Agreement may
not be amended or terminated except by an instrument executed by
both parties.
8.9 ASSIGNMENT. This agreement may not be assigned by Buyer without
written consent of Seller, which consent will not be unreasonably
withheld.
8.10 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
BUYER: HORIZON Pharmacies, Inc.
Witness:
-------------------- -----------------------
Rick McCord, President
SELLER: Martin Drug Corporation
Witness:
-------------------- -----------------------
David DeVido, President
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<PAGE>
PURCHASE AGREEMENT
AGREEMENT made the 25th day of July, 1998 between Carlen Corporation, a
Texas corporation ("Seller"), and HORIZON Pharmacies, Inc., a Delaware
Corporation ("Buyer").
W I T N E S S E T H
WHEREAS, Seller operates a retail pharmacy doing business as Briargrove
Pharmacy, (the Drug Store") located at 6435 San Felipe, Houston, Texas 77057
(the "Retail Location").
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
certain assets utilized in connection with and as part of Seller's operation
of the Drug Store upon the terms and conditions stated herein:
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. SALE OF ASSETS.
1.1 ASSETS TO BE PURCHASED Seller hereby agrees to convey, transfer,
assign, and deliver to Buyer on a going concern basis, and Buyer
hereby agrees to purchase from Seller all of Seller's assets
located at or used in connection with Seller's operation of the
Drug Store including but not limited to:
A. MARKETABLE INVENTORY. All marketable pharmaceutical and
retail inventory of Seller held for retail sale by the
Drug Store, a summary of which is attached as Exhibit "G".
B. PRESCRIPTION FILES AND PATIENT PROFILES. All prescription
files, patient profiles, customer list and telephone
numbers.
C. FURNITURE, FIXTURES AND EQUIPMENT. Supplies and all
furniture, fixtures, equipment described in Exhibit "A"
attached hereto and made a part hereof, including but not
limited to computers, peripherals, cash registers,
refrigerators, typewriters, microfiche, fax machines,
copiers, sound system, alarm system, telephone equipment,
shelving, counters, bottles, vials, ointment jars and other
usable supplies.
D. COPYRIGHTS, TRADE NAMES, AND TRADEMARKS. All copyrights,
trade names and trademarks associated with the Pharmacy
Location(s) including, but not limited to Briargrove
Pharmacy and all variations thereof.
1.2 ASSETS NOT PURCHASED BY BUYER Unless otherwise agreed by the
parties in writing, Buyer shall not purchase the following: (i)
consigned merchandise; (ii) merchandise held in layaway; (iii)
merchandise which is damaged; (iv) merchandise which is
unsalable because its expiration date has expired; or (v)
prescription merchandise expiring within 30 days or prescription
merchandise or over-the-counter drugs which are (a) in a
partially filled container with a date which will expire within
30 days of the closing date; or (b) in a full, sealed container
with a date which is expired; (vi) all accounts receivable for
services rendered on or before closing, including, but not
limited to, third party insurance receivables, individual charge
account receivables, and Worker's Compensation receivables; and
Seller's full interest in a class action lawsuit brought against
certain pharmaceutical companies based on claims of anti-trust
and other legal violations, which lawsuit is currently pending.
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1.3 TELEPHONE NUMBERS. Seller agrees to use all reasonable efforts
and take all action necessary to assure that all telephone
numbers used at the Drug Store shall be transferred without
interruption to Buyer.
2. PURCHASE PRICE.
2.1 COMPUTATION. The purchase price to be paid by the Buyer for the
Drug Stores Assets shall be computed as follows: (i) $700,000
for prescription files, patient profiles, furniture, fixtures,
equipment and goodwill; PLUS (ii) the discounted fair market
value of all inventory constituting a part of the Drug Store
Assets determined in accordance with Section 2.6, below;
2.2 ALLOCATION. The total purchase price described in Section 2.1,
above, shall be allocated as set forth in Exhibit "B" attached
hereto and made a part hereof.
2.3 PAYMENT OF THE PURCHASE PRICE. Buyer shall cause the purchase
price to be paid to Seller as follows:
(a) $765,000 on the Closing Date by Company, certified or
cashier's check (less of the Earnest Money Deposit as such
term is defined in Section 2.4, below);
(b) Shares of Buyer's common stock, par value $.01 per share
(the "HORIZON Common Stock"), equivalent to $487,986.00
based upon the average closing price for the HORIZON common
stock as reported in the Wall Street Journal for the ten
(10) business days immediately preceding the Closing Date,
as such term is defined in Section 7.1, below. The dollar
amount will equal the actual evaluation of the store
inventory less $135,000, and plus or minus any adjustments
per Sections 2.3(d) and 2.3(e) below;
(c) Pursuant to Section 8.3, a negotiable promissory note for
$100,000.00, payable to David DeVido in two equal
installments due six (6) months and twelve (12) months from
the date of purchase in the form attached as Exhibit "C"
attached hereto secured by the inventory of the Drug Store
in amount sufficient to cover the outstanding principal plus
accrued interest due thereon;
(d) Buyer shall deduct from the purchase price payable at
Closing an amount equal to the sum of (i) Seller's pro rata
share of personal property taxes as described in Section
2.5.2, below, and (ii) one half of the fee charged by the
third party inventory service;
(e) Additionally, Buyer and Seller shall prorate rent and
utilities for the month of July upon presentation of
invoices By Buyer (which may occur after the closing) and
Buyer shall purchase petty cash and register cash from
Seller at closing and reimburse Seller for any security
deposit on deposit with the landlord of the retail location;
and
(f) Adjustments to the total purchase price, up or down, based
on the actual inventory, shall be made in the number of
shares of Buyer's common stock given as consideration.
2.4 EARNEST MONEY DEPOSIT. Buyer herewith deposits with
________N/A___ _________ (the "Escrow Agent"), the sum of
$10,000 (the "Earnest Money Deposit"), which sum shall be applied
to the cash portion of the purchase price at Closing. In the
event Seller fails to perform each and every covenant and
condition required hereunder, Buyer may terminate this Agreement
by giving Seller written notice and Seller shall return the
Earnest Money to Buyer within three (3) days of Seller's receipt
of such notice. In the event Buyer fails to perform each and
every obligation hereunder, Seller may terminate this Agreement
and retain the
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Earnest Money as liquidated damages. The remedies provided in
this Section shall be the exclusive remedies for a breach of this
Section.
2.5 TAXES
2.5.1 SALES, USE, AND TRANSFER TAXES Buyer shall pay any and
all sales, use, and transfer taxes arising out of the
sale of the Drug Store Assets pursuant to this
Agreement.
2.5.2 PERSONAL PROPERTY TAXES. Seller shall pay all personal
property taxes attributable to the Drug Store Assets
for the period up to and including the Closing Date,
and Buyer shall pay all personal property taxes
attributable to the Drug Store Assets for the period
following the Closing Date. The parties shall, using
last year's tax returns, estimate as of the Closing
Date the personal property taxes anticipated to be owed
on the Drug Store Assets for the current calendar year,
and Seller's pro rata portion of such estimated taxes
shall be withheld by Buyer from the purchase price
described in Section 2.3, above.
2.6 INVENTORY EVALUATION A physical inventory of the Drug Store
Assets shall be performed on the Closing Date by an independent
third party inventory service. Each party shall pay one-half of
the fee charged by the service company, with Seller's pro rata
share of such costs to be deducted from the purchase price
payable by Buyer at Closing. For purposes of calculating that
portion of the purchase price attributed to inventory under
Section 2, above, the marketable inventory shall be valued as
follows, except as otherwise provided herein:
<TABLE>
MARKETABLE INVENTORY METHOD OF VALUATION
<S> <C>
Prescription inventory Acquisition cost or AWP less 16%
except for special deal prescription
items or generic items which shall
be valued at acquisition cost
Non-Prescription inventory Acquisition cost
</TABLE>
In the event Seller is unable to establish the acquisition cost of any
non-prescription inventory, the following formula shall be applied in
valuing such inventory.
<TABLE>
CATEGORY OF MERCHANDISE METHOD OF VALUATION
<S> <C>
HBA Retail price less 25%
OTC Retail price less 25%
Gifts Retail price less 50%
Cards Retail price less 50%
Cosmetics Retail price less 33-1/3%
Watches/Cameras Retail price less 33-1/3%
Fragrances Retail price less 25%
Candy (box) Retail price less 40%
Candy (loose) Retail price less 30%
Jewelry Retail price less 50%
Miscellaneous Retail price less 50%
Seasonal Merchandise Retail price less 50%
</TABLE>
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3. REPRESENTATIONS AND WARRANTIES.
3.1. The Seller does hereby represent and warrant to Buyer as follows:
3.1.1 ORGANIZATION. Seller is a corporation duly organized and
existing in good standing under the laws of its state of incorporation
and is entitled to own and lease its properties and to carry on its
business as and in the places where such properties are now owned,
leased or operated and such business is conducted.
3.1.2 AUTHORITY. The execution, delivery and performance of this
agreement by Seller has been duly authorized by all necessary
corporate action and constitutes a legal, valid, and binding
obligation on Seller enforceable in accordance with its terms.
3.1.3 TITLE TO PROPERTIES. The Seller has good and marketable title
to all of the Drug Store assets, free and clear of all mortgages,
liens, encumbrances, pledges, or security interests of any nature
whatsoever, except for secured debts, if any, listed on Exhibit "D"
attached hereto which shall be satisfied and released at or prior to
closing.
3.1.4 BOOKS AND RECORDS. Seller's books and records which have been
provided to Buyer for inspection are true, correct and complete, and
contain no material omission with respect to Seller's business,
operation or status.
3.1.5 STATEMENTS NOT MISLEADING. No representation, warranty or other
information disclosed to Buyer in connection with this Agreement omits
or will omit to state the material facts necessary to make such
representation, warranty or information not misleading.
3.1.6 COMPLIANCE WITH APPLICABLE LAWS. Except as noted on Exhibit
"E", Seller has received no notice of violation of any applicable law,
regulation or requirement relating to the operation of the Drug Store,
the Drug Store Assets or the Retail Location, and Seller has no
knowledge of or reason to believe any such violation exists. Seller
is in full compliance with all wages and hour laws, and to the best of
its knowledge is not engaged in any unfair labor practice or
discriminatory employment practice and no complaint of any such
practice against Seller is filed or threatened to be filed with or by
the National Labor Relation Board, the Equal Employment Opportunity
Commission or any other administrative agency, Federal or state, that
regulates labor or employment practices, nor is any grievances filed
or threatened to be filed against Seller by any employee pursuant to
any collective bargaining or other employment agreement to which
Seller is a party. To the Seller's best knowledge it is in compliance
with all applicable Federal and state laws and regulations regarding
occupational safety and health standards and has received no material
complaints from any Federal or state agency or regulatory body
alleging violations of any such laws and regulations. The Drug Store
and the use and operation thereof are currently in compliance with all
applicable laws, ordinances, rules and regulations relating to public
health and safety and protection of the environment. Seller has not
released, generated, discharged, manufactured, treated, transported or
disposed of hazardous material on, in, under or from the Drug Store or
placed or stored any hazardous material on the property. To the best
of Seller's knowledge, (a) no release, generation, discharge,
manufacture, treatment, transportation or disposal of hazardous
material has occurred on, in, under or from the Drug Store, (b) no
hazardous material is or has been stored or otherwise located on, in
or under the Drug Store, and (c) there are no underground storage
tanks on the Drug Store premises. There are no pending or to the
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best of Seller's knowledge threatened requests for information, action
or proceedings from or by any governmental agency or any other person
or entity regarding the condition or use of the Drug Store or the
release, generation, discharge, manufacture, treatment, transportation
or discharge of hazardous material on, in, under or from the Drug
Store.
3.1.7 CONTRACTS. Seller is not a party to any contract, understanding
or commitment Whether in the ordinary course of business or not,
relating to Seller's operation of the Drug Store which extends beyond
the Closing Date except those listed on Exhibit "F", which Buyer
agrees to assume.
3.1.8 EMPLOYMENT CONTRACTS. Seller is not a party to any oral or
written contract of employment between Seller and any officer or other
employee, and the employment of each of Seller's officers and all the
Drug Store's employees is terminable at will without any penalty or
severance obligation of any kind.
3.1.9 LITIGATION. Seller is not a party to and has no knowledge of
any suit, action, proceeding, investigation, claim, complaint or
accusation pending or threatened against or affecting Seller or the
Drug Store Assets, in any court or before any arbitration panel of any
kind or before or by any Federal, state, local, foreign or other
government agency, department, commission, board, bureau,
instrumentality or body, and to the best knowledge and belief of
Seller, there is no basis for any such suit, action, litigation,
proceeding, investigation, claim, complaint or accusation. There is
no outstanding order, writ, injunction, decree, judgment or award by
any court, arbitration panel or government body against or affecting
Seller, Drug Store, the Drug Store Assets or the Retail Location.
3.1.10 EMPLOYEE BENEFITS. All sums due for employee compensation and
benefits and all vacation time owing to any employees of Seller have
been duly and adequately accrued and reflected in the accounting
records of Seller. Seller shall be responsible for all employee
benefits, including but not limited to payment for accrued vacation,
to the Closing Date. To the Seller's best knowledge, all employees of
Seller are either United States citizens or resident aliens
specifically authorized to engage in employment in the United States
in accordance with all applicable laws.
3.1.11 TAXES.
(a) Seller has filed all required Federal, state, local, foreign
and other tax returns, notices and reports (including, but
not limited to, income, property, sales, use, franchise,
capital, stock, excise, added value, employee's income
withholding, social security and unemployment tax returns)
heretofore due; and to Seller's best knowledge all such
returns, notices, and reports are correct, accurate, and
complete.
(b) Seller has made all deposits required to be made in
connection with any tax including but not limited to,
estimated income, franchise, sales, use, and employee
withholding taxes.
3.1.12 INVESTMENT PURPOSE. Seller is acquiring the HORIZON Common
Stock for investment, and not with a view to the sale or
distribution thereof. Seller understands and acknowledges
that the transfer of the HORIZON Stock issuable hereunder
will be restricted and that Seller may not sell or otherwise
dispose of such shares unless and until a registration
statement under the Security Act of 1933, as amended (the
"Securities Act"), is in effect with respect thereto and
Seller has fully complied with the Securities Act and all
applicable regulations thereunder, or Seller has received an
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<PAGE>
opinion from Buyer's counsel that the contemplated sale or
other disposition of the HORIZON Common Stock will not
require registration under the Security Act.
3.1.13 INSURANCE. All inventories, buildings and fixed assets
owned or leased by Seller are and will be adequately insured
against fire to the Closing Date, valid policies therefor
are and will be outstanding and in force, and the premiums
will be paid before the Closing Date.
3.1.14 NO CHANGES. Until the Closing Date, Seller will not, except
with Buyer's prior written consent: (i) conduct its business
except in the regular and ordinary course; (ii) increase the
amount of compensation currently being paid to employee or
agent, or make any bonus arrangement with any employee or
agent; (iii) enter into any transaction other than in the
ordinary course of business; or (iv) pay out of assets
being sold to Buyer any debt, obligation or liability which
Buyer has not agreed to assume under the terms of this
Agreement.
3.2 Buyer does hereby represent and warrant to Seller as follows:
3.2.1 ORGANIZATION. Buyer is a corporation duly organized and
existing in good standing under the laws of Delaware, and is
entitled to own or lease properties and carry on its
business as and in the places where such properties are now
owned, leased or operated and such business is now
conducted.
3.2.2 COMMON STOCK. Buyer has authorized 14,000,000 shares of
HORIZON Common Stock of which approximately 5,400,000 shares
are currently issued and outstanding, and 1,000,000 share of
preferred stock, par value $0.01 per share, none of which
are currently issued and outstanding.
4. CONDITIONS TO CLOSING.
4.1. BUYER'S CONDITIONS TO CLOSING. All obligations of Buyer under this
Agreement are subject to the fulfillment, prior to or at Closing, of
each of the following conditions (unless waived in writing by Buyer).
4.1.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement shall be
true and complete at the Closing Date as if they were made
at such time.
4.1.2 COMPLIANCE. Seller shall have performed and complied with
all terms and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing
Date.
4.1.3 CONSENTS. All necessary consents to the transfer of the
Drug Store Assets have been obtained from vendors and other
third party, if any.
4.1.4 NO CASUALTY. The Drug Store's business and property shall
not have been adversely affected in any material way as a
result of any strike, lock-out, accident or other casualty
or act of God or the public enemy, or any judicial,
administrative or governmental proceeding.
4.1.5 LEASE OF RETAIL LOCATION. Buyer shall have executed a lease
assignment covering the Retail Location.
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4.1.6 LICENSE TO OPERATE RETAIL PHARMACY. Buyer shall have
obtained a valid license to operate a retail pharmacy under
the HORIZON Pharmacies, Inc. name in the state of TEXAS.
4.2 SELLER'S CONDITIONS TO CLOSING. All obligations of Seller under this
Agreement are subject to the fulfillment, prior to or at Closing, of
each of the following conditions (unless waived in writing by Seller).
4.2.1 REPRESENTATIONS. The representations and warranties of
Buyer contained in this Agreement shall be true and complete
at the Closing Date as if they were made at such time.
4.2.2 COMPLIANCE. Buyer shall have performed and complied with
all terms and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing
Date.
4.2.3 INSURANCE. Buyer shall have documentation of insurance
coverage.
5. LIABILITIES NOT ASSUMED BY BUYER. The parties expressly agree and
acknowledge that Buyer shall not, by virtue of this Agreement, the
consummation of the transactions contemplated herein or otherwise, assume
any liabilities or obligations of Seller or any liabilities or obligations
constituting a charge, lien, encumbrance or security interest upon the Drug
Store Assets, regardless of whether such liabilities or obligations are
absolute or contingent, liquidated or unliquidated or otherwise; except as
provided in Section 3.1.7.
6. INDEMNIFICATION.
6.1 SELLER'S INDEMNIFICATION OF BUYER. Seller and David Devido shall
indemnify and hold harmless Buyer against and in respect of any and
all liabilities concerning or otherwise connected to the conduct or
operation of the Drug Store as of or prior to the Closing Date, and
with the exception of liabilities expressly assumed by Buyer, all
liabilities and obligations of the Seller, of every kind and
description, regardless of whether such liabilities or obligations are
absolute or contingent, liquidated or unliquidated, accrued or
otherwise, and regardless of how and when the same may have arisen,
which are asserted against Buyer as a result of this Agreement or the
consummation of the transactions contemplated herein. Seller and David
Devido also indemnify, defend, and hold harmless Buyer against and in
respect of any cost, damage, expense, liability or loss incurred or
suffered by Buyer resulting from or arising out of the breach,
inaccuracy, misrepresentation or untruth of any representation or
warranty which survives the Closing, or the nonfulfillment of the
post-closing agreements of Seller, including without limitation the
agreements of Seller set forth in Section 8.5 regarding access to
records in order for Buyer to conduct an audit of the last two (2)
fiscal years and unaudited financial data up to the Closing Date. The
foregoing indemnifications shall be joint and several, and indemnified
costs and expenses shall include reasonable attorney's fees and
related expenses. The right of indemnification shall be in addition
to and shall not operate as a limitation on any other right or remedy
pursuant to this agreement or any document or instrument executed in
connection with the consummation of the sale and purchase of the Drug
Store. The provisions of this paragraph shall survive the closing of
this transaction for a period of one (1) year.
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6.2 BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify and hold
harmless Seller against and in respect of any and all liabilities
concerning or otherwise connected to the conduct or operation of the
Drug Store following the Closing Date, or arising out of any
misrepresentation or breach of any of the provisions contained herein.
The provisions of this paragraph shall survive the closing of this
transaction for a period of one (1) year; except that Buyer shall
indemnify and hold harmless Seller and David DeVido, individually,
("DeVido") against and in respect to all suits, actions, losses,
damages, claims, or liability, including all expenses of litigation,
court costs, and attorney's fees arising out of Buyer's failure to
perform all of its obligations as Assignee under that certain Lease
Agreement (Sublease Agreement) between Carlen Corporation, a Texas
corporation ("Tenant"), Rice Food Markets ("Landlord"), and David
DeVido ("Guarantor") dated September 12, 1989, as amended, for the
lease premises located at 6435 San Felipe, Houston, Texas 77057. This
indemnity shall remain in full force and effect until termination of
the lease on February 28, 2006.
7. CLOSING.
7.1 CLOSING DATE. The closing shall take place at the Retail Location on
or before July 25, 1998 (the "Closing Date") but in no event later
than August 8, 1998 unless otherwise agreed by the parties in writing.
7.2 SELLER'S OBLIGATIONS AT CLOSING. Seller shall deliver to Buyer at
closing of this Agreement a Bill of Sale effective to vest in Buyer
good and marketable title to the Drug Store Assets, free and clear of
all mortgages, security interest, liens, encumbrances, pledges and
hypothecation of every nature and description and all other
instruments and documents that are necessary or appropriate to the
sale and delivery of the Drug Store Assets.
7.3 BUYER'S OBLIGATIONS AT CLOSING. Buyer shall deliver to Seller at
closing: (i) a check for the cash portion of the purchase price
provided for in Section 2.3 made payable to Seller and Seller's
secured lender; (ii) the Note and security Agreement provided for in
Section 2.3 with David DeVido named as the secured party; and (iii)
evidence that the shares of Common Stock provided for in Section 2.3
shall be promptly delivered.
8. MISCELLANEOUS.
8.1 SURVIVAL OF REPRESENTATION, WARRANTIES AND INDEMNIFICATIONS. All of
the representations, warranties and indemnifications of the parties
set forth in this Agreement shall survive the Closing hereof. The
provisions of this paragraph shall survive the closing of this
transaction for a period of one (1) year.
8.2 RISK OF LOSS. The risk of loss of damages of Drug Store Assets shall
be upon Seller until the closing hereof.
8.3 COVENANT NOT TO COMPETE. Except as otherwise provided herein, David
Devido shall not, for a period of six (6) years after the Closing
Date, directly or indirectly own an equity interest in, operate,
manage or assist any person or entity other than Buyer in operating or
managing, any business which includes a retail pharmacy, nursing home
or home health care company, or which offers for sale or lease durable
medical equipment within a five (5) miles radius of store location,
excluding Shan-La, Inc. d/b/a Park Plaza Pharmacy, located at 1213
Hermann Drive, Suite 140, Houston, Texas 77004. The parties expressly
agree that David Devido may serve no more
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than one (1) day per week as a relief pharmacist at retail pharmacies
not owned or operated by Buyer. The parties acknowledge that the
territorial and time limitations contained in the paragraph are
reasonable and properly required for the adequate protection of
the business to be conducted by Buyer with the assets and properties
to be transferred hereunder and can not be changed except by written
permission of Buyer.
8.4 RIGHT TO ENJOIN BREACH. The parties agree that in the event of a
breach by Seller of any provision of this paragraph, monetary damages
alone would be inadequate and Buyer shall, in addition to all other
legal remedies, be entitled to obtain an order enjoining Seller from
violating the covenants set forth herein.
8.5 ACCESS TO RECORDS. Seller shall give Buyer, its counsel, accountants
and representatives, reasonable access during normal business hours to
all of Seller's books, contracts, commitments and records and furnish
Buyer with all information which Buyer reasonably may request to
conduct a financial audit of the last two (2) fiscal years and
unaudited financial data up to Closing Date at Buyer's expense. The
Buyer's audit will be conducted after the Closing Date.
Seller and David Devido agree and certify that they are aware that the
post-Closing audit by Buyer is required in order to satisfy Buyer's
regulatory reporting and disclosure requirements and for Buyer's
general business purposes, that their prompt and complete cooperation
and compliance with the provisions of this Section are required in
order for such audit to be completed on a thorough and timely basis
and that their failure to cooperate and comply could subject them to a
claim to be indemnified, defended and held harmless or for other
remedies available under this agreement or pursuant to applicable law
or regulation.
8.6 SELLER'S COLLECTION OF ACCOUNTS RECEIVABLE. Buyer acknowledges and
agrees that Seller will need assistance from Drug Store employees to
properly direct collections on account and to properly allocate
between Buyer and Seller based upon the invoice date referenced by the
payment.
8.6 GOVERNING LAW. This agreement shall be governed and construed in
accordance with the laws of the state of Texas.
8.7 ENTIRE AGREEMENT MODIFICATION. This agreement contains the entire
agreement between the parties, and no representations, warranties or
promises, unless contained herein, shall be binding upon the parties
hereto, their successors and assigns. This Agreement may not be
amended or terminated except by an instrument executed by both
parties.
8.8 ASSIGNMENT. This agreement may not be assigned by Buyer without
written consent of Seller, which consent will not be unreasonably
withheld.
8.9 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
9
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SELLER INITIAL BUYER INITIAL
<PAGE>
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
BUYER: HORIZON Pharmacies, Inc.
Witness:
- ----------------------- ---------------------------
Rick McCord, President
SELLER: Carlen Corporation
Witness:
- ----------------------- ---------------------------
David DeVido, President
10
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SELLER INITIAL BUYER INITIAL
<PAGE>
PURCHASE AGREEMENT
AGREEMENT made the 26th day of July, 1998 between Stirniminn, Inc., a
Texas corporation ("Seller"), and HORIZON Pharmacies, Inc., a Delaware
Corporation ("Buyer").
W I T N E S S E T H
WHEREAS, Seller operates a retail pharmacy doing business as Kirkwood
Pharmacy, (the Drug Store") located at 11637 Katy Freeway, Houston, Texas
77079 (the "Retail Location").
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
certain assets utilized in connection with and as part of Seller's operation
of the Drug Store upon the terms and conditions stated herein:
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. SALE OF ASSETS.
1.1 ASSETS TO BE PURCHASED Seller hereby agrees to convey, transfer,
assign, and deliver to Buyer on a going concern basis, and Buyer
hereby agrees to purchase from Seller all of Seller's assets located
at or used in connection with Seller's operation of the Drug Store
including but not limited to:
A. MARKETABLE INVENTORY. All marketable pharmaceutical and retail
inventory of Seller held for retail sale by the Drug Store, a
summary of which is attached as Exhibit "C".
B. PRESCRIPTION FILES AND PATIENT PROFILES. All prescription files,
patient profiles and customer list and telephone numbers.
C. FURNITURE, FIXTURES AND EQUIPMENT. Supplies and all
furniture, fixtures, equipment described in Exhibit "A"
attached hereto and made a part hereof, including but not
limited to computers, peripherals, cash registers,
refrigerators, typewriters, microfiche, fax machines, copiers,
sound system, alarm system, telephone equipment, shelving,
counters, bottles, vials, ointment jars and other usable
supplies.
D. COPYRIGHTS, TRADE NAMES, AND TRADEMARKS. All copyrights,
trade names and trademarks associated with the Pharmacy
Location (s) including, but not limited to Kirkwood Pharmacy
and all variations thereof.
1.2 ASSETS NOT PURCHASED BY BUYER Unless otherwise agreed by the
parties in writing, Buyer shall not purchase the following: (I)
consigned merchandise; (ii) merchandise held in layaway; (iii)
merchandise which is damaged; (iv) merchandise which is unsalable
because its expiration date has expired; or (v) prescription
merchandise expiring within 30 days or prescription merchandise or
over-the-counter drugs which are (a) in a partially filled
container with a date which will expire within 30 days of the
closing date; or (b) in a full, sealed container with a date which
is expired; (vi) all accounts receivable for services rendered on
or before closing, including, but not limited to, third party
insurance receivables, individual charge account receivables, and
Worker's Compensation receivables; and Seller's full interest in a
1
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Seller Initial Buyer Initial
<PAGE>
class action lawsuit brought against certain pharmaceutical
companies based on claims of anti-trust and other legal violations,
which lawsuit is currently pending.
1.3 TELEPHONE NUMBERS. Seller agrees to use all reasonable efforts and
take all action necessary to assure that all telephone numbers used
at the Drug Store shall be transferred without interruption to
Buyer.
1.4 POST OFFICE AND LOTTERY. Buyer acknowledges that a portion of the
premises is being used as Post Office and that the Seller sells
Lottery tickets. Additionally, Buyer acknowledges that Buyer is
responsible for making the necessary arrangements to continue both
services.
2. PURCHASE PRICE.
2.1 COMPUTATION. The purchase price to be paid by the Buyer for the
Drug Stores Assets shall be computed as follows: (i) $100,000 for
prescription files, patient profiles, furniture, fixtures,
equipment, and goodwill; plus (ii) the discounted fair market value
of all inventory constituting a part of the Drug Store Assets
determined in accordance with Section 2.6, below;
2.2 ALLOCATION. The total purchase price described in Section 2.1,
above, shall be allocated as set forth in Exhibit "B" attached
hereto and made a part hereof.
2.3 PAYMENT OF THE PURCHASE PRICE. Buyer shall cause the purchase
price to be paid to Seller as follows:
(a) $150,000 on the Closing Date by Company, certified or cashier's
check (less the Earnest Money Deposit as such term is defined in
Section 2.4, below);
(b) Shares of Buyer's common stock, par value $ .01 per share (the
"HORIZON Common Stock"), equivalent to $ 257,259.00 based upon
the average closing price for the HORIZON common stock as
reported in the Wall Street Journal for the ten (10) business
days immediately preceding the Closing Date, as such term is
defined in Section 7.1, below. The dollar amount will be equal
to the actual valuation of the store inventory, plus or minus any
adjustments pursuant with 2.3(c) and 2.3(d).
(c) Buyer shall deduct from the purchase price payable at Closing
an amount equal to the sum of (i) Seller's pro rata share of
personal property taxes as described in Section 2.5.2, below, and
(ii) one half of the fee charged by the third party inventory
service.
(d) Additionally, Buyer and Seller shall prorate rent and utilities
for the month of July upon presentation of invoices by Buyer
(which may occur after closing) and Buyer shall purchase petty
cash and register cash from Seller at closing and reimburse Seller
for any security deposit on deposit with the landlord of the
retail location.
(e) Adjustments to the total purchase price, up or down, based on
the actual inventory shall be made in the number of shares of
Buyer's common stock given as consideration.
2.4 EARNEST MONEY DEPOSIT. Buyer herewith deposits with ___________
_________ (the "Escrow Agent"), the sum of $5,000 (the "Earnest
Money Deposit")) , which sum shall be applied to the cash portion
of the purchase price at Closing. In the event Seller fails to
perform each and every covenant and condition required hereunder,
Buyer may terminate this Agreement by giving Seller written notice
and Seller shall return the Earnest Money to Buyer within three (3)
days of Seller's receipt of such notice. In the event Buyer fails
to perform each and every obligation hereunder, Seller may
terminate this Agreement and retain the
2
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Seller Initial Buyer Initial
<PAGE>
Earnest Money as liquidated damages. The remedies provided in this
Section shall be the exclusive remedies for a breach of this
Section.
2.5 TAXES
2.5.1 SALES, USE, AND TRANSFER TAXES Buyer shall pay any and all
sales, use, and transfer taxes arising out of the sale of the
Drug Store Assets pursuant to this Agreement.
2.5.2 PERSONAL PROPERTY TAXES. Seller shall pay all personal
property taxes attributable to the Drug Store Assets for the
period up to and including the Closing Date, and Buyer shall
pay all personal property taxes attributable to the Drug Store
Assets for the period following the Closing Date. The parties
shall, using last year's tax returns, estimate as of the
Closing Date the personal property taxes anticipated to be
owed on the Drug Store Assets for the current calendar year,
and Seller's pro rata portion of such estimated taxes shall be
withheld by Buyer from the purchase price described in Section
2.3, above.
2.6 INVENTORY EVALUATION A physical inventory of the Drug Store
Assets shall be performed on the Closing Date by an independent
third party inventory service. Each party shall pay one-half of
the fee charged by the service company, with Seller's pro rata
share of such costs to be deducted from the purchase price payable
by Buyer at Closing. For purposes of calculating that portion of
the purchase price attributed to inventory under Section 2, above,
the marketable inventory shall be valued as follows, except as
otherwise provided herein:
<TABLE>
Marketable Inventory Method of Valuation
-------------------- -------------------
<S> <C>
Prescription inventory Acquisition cost or AWP less 16%
except for special deal prescription
items or generic items which
shall be valued at acquisition cost
Non-Prescription inventory Acquisition cost
</TABLE>
In the event Seller is unable to establish the acquisition cost of any
non-prescription inventory, the following formula shall be applied in
valuing such inventory.
<TABLE>
Category of Merchandise Method of Valuation
----------------------- -------------------
<S> <C>
HBA Retail price less 25%
OTC Retail price less 25%
Gifts Retail price less 50%
Cards Retail price less 50%
Cosmetics Retail price less 33 1/3%
Watches/Cameras Retail price less 33 1/3%
Fragrances Retail price less 25%
Candy (box) Retail price less 40%
Candy (loose) Retail price less 30%
Jewelry Retail price less 50%
Miscellaneous Retail price less 50%
Seasonal Merchandise Retail price less 50%
</TABLE>
3. REPRESENTATIONS AND WARRANTIES.
3
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Seller Initial Buyer Initial
<PAGE>
3.1. The Seller does hereby represent and warrant to Buyer as follows:
3.1.1 ORGANIZATION. Seller is a corporation duly organized and
existing in good standing under the laws of its state of
incorporation and is entitled to own and lease its properties and
to carry on its business as and in the places where such properties
are now owned, leased or operated and such business is conducted.
3.1.2 AUTHORITY. The execution, delivery and performance of this
agreement by Seller has been duly authorized by all necessary
corporate action and constitutes a legal, valid, and binding
obligation on Seller enforceable in accordance with its terms.
3.1.3 TITLE TO PROPERTIES. The Seller has good and marketable
title to all of the Drug Store assets, free and clear of all
mortgages, liens, encumbrances, pledges, or security interests of
any nature whatsoever, except for secured debts, if any, listed on
Exhibit "D" attached hereto which shall be satisfied and released
at or prior to closing.
3.1.4 BOOKS AND RECORDS. Seller's books and records which have
been provided to Buyer for inspection are true, correct and
complete, and contain no material omission with respect to Seller's
business, operation or status.
3.1.5 STATEMENTS NOT MISLEADING. No representation, warranty or
other information disclosed to Buyer in connection with this
Agreement omits or will omit to state the material facts necessary
to make such representation, warranty or information not misleading.
3.1.6 COMPLIANCE WITH APPLICABLE LAWS. Seller has received no
notice of violation of any applicable law, regulation or
requirement relating to the operation of the Drug Store, the Drug
Store Assets or the Retail Location, and Seller has no knowledge of
or reason to believe any such violation exists. Seller is in full
compliance with all wages and hour laws, and to the best of its
knowledge is not engaged in any unfair labor practice or
discriminatory employment practice and no complaint of any such
practice against Seller is filed or threatened to be filed with or
by the National Labor Relation Board, the Equal Employment
Opportunity Commission or any other administrative agency, Federal
or state, that regulates labor or employment practices, nor is any
grievances filed or threatened to be filed against Seller by any
employee pursuant to any collective bargaining or other employment
agreement to which Seller is a party. To the Seller's best
knowledge it is in compliance with all applicable Federal and state
laws and regulations regarding occupational safety and health
standards and has received no material complaints from any Federal
or state agency or regulatory body alleging violations of any such
laws and regulations. The Drug Store and the use and operation
thereof are currently in compliance with all applicable laws,
ordinances, rules and regulations relating to public health and
safety and protection of the environment. Seller has not released,
generated, discharged, manufactured, treated, transported or
disposed of hazardous material on, in, under or from the Drug Store
or placed or stored any hazardous material on the property. To the
best of Seller's knowledge, (a) no release, generation, discharge,
manufacture, treatment, transportation or disposal of hazardous
material has occurred on, in, under or from the Drug Store, (b) no
hazardous material is or has been stored or otherwise located on,
in or under the Drug Store, and (c) there are no underground
storage tanks on the Drug Store premises. There are no pending or
to the best of Seller's knowledge threatened requests for
information, action or proceedings from or by any governmental
agency or any other person or entity regarding the condition or use
of the
4
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Seller Initial Buyer Initial
<PAGE>
Drug Store or the release, generation, discharge, manufacture,
treatment, transportation or discharge of hazardous material on,
in, under or from the Drug Store.
3.1.7 CONTRACTS. Seller is not a party to any contract,
understanding or commitment whether in the ordinary course of
business or not, relating to Seller's operation of the Drug Store
which extends beyond the Closing Date except those listed on
Exhibit "F", which Buyer agrees to assume.
3.1.8 EMPLOYMENT CONTRACTS. Seller is not a party to any oral or
written contract of employment between Seller and any officer or
other employee, and the employment of each of Seller's officers and
all the Drug Store's employees is terminable at will without any
penalty or severance obligation of any kind.
3.1.9 LITIGATION. Seller is not a party to and has no knowledge of
any suit, action, proceeding, investigation, claim, complaint or
accusation pending or threatened against or affecting Seller or the
Drug Store Assets, in any court or before any arbitration panel of
any kind or before or by any Federal, state, local, foreign or
other government agency, department, commission, board, bureau,
instrumentality or body, and to the best knowledge and belief of
Seller, there is no basis for any such suit, action, litigation,
proceeding, investigation, claim, complaint or accusation. There
is no outstanding order, writ, injunction, decree, judgment or
award by any court, arbitration panel or government body against or
affecting Seller, Drug Store, the Drug Store Assets or the Retail
Location.
3.1.10 EMPLOYEE BENEFITS. All sums due for employee compensation
and benefits and all vacation time owing to any employees of Seller
have been duly and adequately accrued and reflected in the
accounting records of Seller. Seller shall be responsible for all
employee benefits, including but not limited to payment for accrued
vacation, to the Closing Date. To the Seller's best knowledge, all
employees of Seller are either United States citizens or resident
aliens specifically authorized to engage in employment in the
United States in accordance with all applicable laws.
3.1.11 TAXES.
(a) Seller has filed all required Federal, state, local,
foreign and other tax returns, notices and reports
(including, but not limited to, income, property, sales,
use, franchise, capital, stock, excise, added value,
employee's income withholding, social security and
unemployment tax returns) heretofore due; and to Seller's
best knowledge all such returns, notices, and reports are
correct, accurate, and complete.
(b) Seller has made all deposits required to be made in
connection with any tax including but not limited to,
estimated income, franchise, sales, use, and employee
withholding taxes.
3.1.12 INVESTMENT PURPOSE. Seller is acquiring the HORIZON Common
Stock for investment, and not with a view to the sale or
distribution thereof. Seller understands and acknowledges that the
transfer of the HORIZON Stock issuable hereunder will be restricted
and that Seller may not sell or otherwise dispose of such shares
unless and until a registration statement under the Security Act of
1933, as amended (the "Securities Act"), is in effect with respect
thereto and Seller has fully complied with the Securities Act and
all applicable regulations thereunder, or Seller has received an
5
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Seller Initial Buyer Initial
<PAGE>
opinion from Buyer's counsel that the contemplated sale or other
disposition of the HORIZON Common Stock will not require
registration under the Security Act.
3.1.13 INSURANCE. All inventories, buildings and fixed assets
owned or leased by Seller are and will be adequately insured
against fire to the Closing Date, valid policies therefor are and
will be outstanding and in force, and the premiums will be paid
before the Closing Date.
3.1.14 NO CHANGES. Until the Closing Date, Seller will not, except
with Buyer's prior written consent: (i) conduct its business except
in the regular and ordinary course; (ii) increase the amount of
compensation currently being paid to employee or agent, or make any
bonus arrangement with any employee or agent; (iii) enter into any
transaction other than in the ordinary course of business; or (iv)
pay out of assets being sold to Buyer any debt, obligation or
liability which Buyer has not agreed to assume under the terms of
this Agreement.
3.2 Buyer does hereby represent and warrant to Seller as follows:
3.2.1 ORGANIZATION. Buyer is a corporation duly organized and
existing in good standing under the laws of Delaware, and is
entitled to own or lease properties and carry on its business as
and in the places where such properties are now owned, leased or
operated and such business is now conducted.
3.2.2 COMMON STOCK. Buyer has authorized 14,000,000 shares of
HORIZON Common Stock of which approximately 5,400,000 shares are
currently issued and outstanding, and 1,000,000 share of preferred
stock, par value $0.01 per share, none of which are currently
issued and outstanding.
4. CONDITIONS TO CLOSING.
4.1. BUYER'S CONDITIONS TO CLOSING. All obligations of Buyer under this
Agreement are subject to the fulfillment, prior to or at Closing,
of each of the following conditions (unless waived in writing by
Buyer).
4.1.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement shall be true
and complete at the Closing Date as if they were made at such
time.
4.1.2 COMPLIANCE. Seller shall have performed and complied with
all terms and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing
Date.
4.1.3 CONSENTS. All necessary consents to the transfer of the
Drug Store Assets have been obtained from vendors and other
third party, if any.
4.1.4 NO CASUALTY. The Drug Store's business and property shall
not have been adversely affected in any material way as a
result of any strike, lock-out, accident or other casualty or
act of God or the public enemy, or any judicial, administrative
or governmental proceeding.
6
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Seller Initial Buyer Initial
<PAGE>
4.1.5 LEASE OF RETAIL LOCATION. Buyer shall have executed a lease
covering the Retail Location.
4.1.6 LICENSE TO OPERATE RETAIL PHARMACY. Buyer shall have
obtained a valid license to operate a retail pharmacy under the
HORIZON Pharmacies, Inc. name in the state of TEXAS.
4.2 SELLER'S CONDITIONS TO CLOSING. All obligations of Seller under
this Agreement are subject to the fulfillment, prior to or at
Closing, of each of the following conditions (unless waived in
writing by Seller).
4.2.1 REPRESENTATIONS. The representations and warranties of Buyer
contained in this Agreement shall be true and complete at the
Closing Date as if they were made at such time.
4.2.2 COMPLIANCE. Buyer shall have performed and complied with all
terms and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date.
4.2.3 INSURANCE. Buyer shall have documentation of insurance
coverage.
5. LIABILITIES NOT ASSUMED BY BUYER. The parties expressly agree and
acknowledge that Buyer shall not, by virtue of this Agreement, the
consummation of the transactions contemplated herein or otherwise,
assume any liabilities or obligations of Seller or any liabilities or
obligations constituting a charge, lien, encumbrance or security
interest upon the Drug Store Assets, regardless of whether such
liabilities or obligations are absolute or contingent, liquidated or
unliquidated or otherwise; except as provided in Section 3.1.7.
6. INDEMNIFICATION.
6.1 SELLER'S INDEMNIFICATION OF BUYER. Seller and DAVID DEVIDO shall
indemnify and hold harmless Buyer against and in respect of any and
all liabilities concerning or otherwise connected to the conduct or
operation of the Drug Store as of or prior to the Closing Date, and
with the exception of liabilities expressly assumed by Buyer, all
liabilities and obligations of the Seller, of every kind and
description, regardless of whether such liabilities or obligations
are absolute or contingent, liquidated or unliquidated, accrued or
otherwise, and regardless of how and when the same may have arisen,
which are asserted against Buyer as a result of this Agreement or
the consummation of the transactions contemplated herein. Seller
and David DeVido also indemnify, defend, and hold harmless Buyer
against and in respect of any cost, damage, expense, liability or
loss incurred or suffered by Buyer resulting from or arising out of
the breach, inaccuracy, misrepresentation or untruth of any
representation or warranty which survives the Closing, or the
nonfulfillment of the post-closing agreements of Seller, including
without limitation the agreements of Seller set forth in Section
8.5 regarding access to records in order for Buyer to conduct an
audit of the last two (2) fiscal years and unaudited financial data
up to the Closing Date. The foregoing indemnifications shall be
joint and several, and indemnified costs and expenses shall include
reasonable attorney's fees and related expenses. The right of
indemnification shall be in addition to and shall not operate as a
limitation on any other right or remedy pursuant to this agreement
or any document or instrument executed in connection with the
consummation of the sale and
7
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Seller Initial Buyer Initial
<PAGE>
purchase of the Drug Store. The provisions of this paragraph shall
survive the closing of this transaction for a period of one (1) year.
6.2 BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify and hold
harmless Seller against and in respect of any and all liabilities
concerning or otherwise connected to the conduct or operation of
the Drug Store following the Closing Date, or arising out of any
misrepresentation or breach of any of the provisions contained
herein. The provisions of this paragraph shall survive the closing
of this transaction for a period of one (1) year.
7. CLOSING.
7.1 CLOSING DATE. The closing shall take place at the Retail Location
on or before JULY 26, 1998 (the "Closing Date") but in no event
later than AUGUST 8, 1998 unless otherwise agreed by the parties in
writing.
7.2 SELLER'S OBLIGATIONS AT CLOSING. Seller shall deliver to Buyer at
closing of this Agreement a Bill of Sale effective to vest in Buyer
good and marketable title to the Drug Store Assets, free and clear
of all mortgages, security interest, liens, encumbrances, pledges
and hypothecation of every nature and description and all other
instruments and documents that are necessary or appropriate to the
sale and delivery of the Drug Store Assets.
7.3 BUYER'S OBLIGATIONS AT CLOSING. Buyer shall deliver to Seller at
closing: (i) a check for the cash portion of the purchase price
provided for in Section 2.3 made payable to Seller and Seller's
secured lender; and (ii) evidence that the shares of Common Stock
provided for in Section 2.3.(b) shall be promptly delivered.
8. MISCELLANEOUS.
8.1 SURVIVAL OF REPRESENTATION, WARRANTIES AND INDEMNIFICATIONS. All
of the representations, warranties and indemnifications of the
parties set forth in this Agreement shall survive the Closing
hereof. The provisions of this paragraph shall survive the closing
of this transaction for a period of one (1) year.
8.2 RISK OF LOSS. The risk of loss of damages of Drug Store Assets
shall be upon Seller until the closing hereof.
8.3 COVENANT NOT TO COMPETE. Except as otherwise provided herein,
David DeVido shall not, for a period of six (6) years after the
Closing Date, directly or indirectly own an equity interest in,
operate, manage or assist any person or entity other than Buyer in
operating or managing, any business which includes a retail
pharmacy, nursing home or home health care company, or which offers
for sale or lease durable medical equipment within a five (5) miles
radius of store location, excluding Shan-La, inc. d/b/a Park Plaza
Pharmacy, located at 1213 Hermann Drive, Suite 140, Houston, Texas
77004. The parties expressly agree that David DeVido may serve no
more than one (1) day per week as a relief pharmacist at retail
pharmacies not owned or
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<PAGE>
operated by Buyer. The parties acknowledge that the territorial
and time limitations contained in the paragraph are reasonable and
properly required for the adequate protection of the business to be
conducted by Buyer with the assets and properties to be transferred
hereunder and can not be changed except by written permission of
Buyer.
8.4 RIGHT TO ENJOIN BREACH. The parties agree that in the event of a
breach by Seller of any provision of this paragraph, monetary
damages alone would be inadequate and Buyer shall, in addition to
all other legal remedies, be entitled to obtain an order enjoining
Seller from violating the covenants set forth herein.
8.5 ACCESS TO RECORDS. Seller shall give Buyer, its counsel,
accountants and representatives, reasonable access during normal
business hours to all of Seller's books, contracts, commitments and
records and furnish Buyer with all information which Buyer
reasonably may request to conduct a financial audit of the last two
(2) fiscal years and unaudited financial data up to Closing Date at
Buyer's expense. The Buyer's audit will be conducted after the
Closing Date.
Seller and David DeVido agree and certify that they are aware that
the post-Closing audit by Buyer is required in order to satisfy
Buyer's regulatory reporting and disclosure requirements and for
Buyer's general business purposes, that their prompt and complete
cooperation and compliance with the provisions of this Section are
required in order for such audit to be completed on a thorough and
timely basis and that their failure to cooperate and comply could
subject them to a claim to be indemnified, defended and held
harmless or for other remedies available under this agreement or
pursuant to applicable law or regulation.
8.6 SELLER'S COLLECTION OF ACCOUNTS RECEIVABLE. Buyer acknowledges and
agrees that Seller will need assistance from Drug Store employees
to properly direct collections on account and to properly allocate
between Buyer and Seller based upon the invoice date referenced by
the payment.
8.7 GOVERNING LAW. This agreement shall be governed and construed in
accordance with the laws of the state of TEXAS.
8.8 ENTIRE AGREEMENT MODIFICATION. This agreement contains the entire
agreement between the parties, and no representations, warranties
or promises, unless contained herein, shall be binding upon the
parties hereto, their successors and assigns. This Agreement may
not be amended or terminated except by an instrument executed by
both parties.
8.9 ASSIGNMENT. This agreement may not be assigned by Buyer without
written consent of Seller, which consent will not be unreasonably
withheld.
8.10 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
BUYER: HORIZON Pharmacies, Inc.
Witness:
---------------------- ---------------------------
9
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<PAGE>
Rick McCord, President
SELLER: Stirniminn, Inc.
Witness:
---------------------- ---------------------------
David DeVido, President
10
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Seller Initial Buyer Initial
<PAGE>
EXHIBIT 2.4
AMENDMENT NO. 1
TO THE
PURCHASE AGREEMENT
DATED JULY 24, 1998
THIS AMENDMENT NO. 1 (the "Amendment"), dated effective the 24th day of
July, 1998, to the Purchase Agreement dated July 24, 1998, (the "Agreement"),
by and among Martin Drug Corporation d/b/a Interurban Pharmacy, a Texas
corporation ("Seller"), and HORIZON Pharmacies, Inc. a Texas corporation
("Buyer"). Unless otherwise defined herein, capitalized terms used but not
defined herein shall have the meaning set forth in the Agreement and the
Agreement shall be amended to incorporate any additional definitions provided
for in this Amendment.
WHEREAS, pursuant to the Agreement, the Buyer previously agreed to
purchase the Property from Seller;
AND WHEREAS, the parties desire to amend the consideration payable by
the Buyer under the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreement hereinafter set forth, the parties hereby agree as follows:
1. AMENDMENT TO SECTION 2.3. Section 2.3 of the Agreement is hereby
amended to read in its entirety as follows:
2.3 PAYMENT OF THE PURCHASE PRICE. Buyer shall cause the purchase
price to be paid to Seller as follows:
(a) $500,000.00 cash payable by the Buyer at Closing by
certified or cashier's check (less the Earnest Money
Deposit as such term is defined in Section 2.4, below);
(b) Shares of Buyer's common stock, par value $.01 per
share (the "HORIZON Common Stock"), equivalent to
$162,203.00 based upon the average closing price of the
HORIZON Common Stock as reported in the Wall Street
Journal for the ten (10) business days immediately
preceding the Closing Date, as such term is defined in
Section 7.1 below. The dollar amount will equal the
actual evaluation of the store inventory plus or minus
any adjustments per Sections 2.3(c) and 2.3(d) below;
(c) Buyer shall deduct from the purchase price payable
at Closing an amount equal to the sum of (i) Seller's pro
rata share of personal property taxes as described in
Section 2.5.2, below, and (ii) one half of the fee
charged by the third party inventory service;
<PAGE>
(d) Additionally, Buyer and Seller shall prorate rent and
utilities for the month of July upon presentation of
invoices by Buyer (which may occur after the closing)
and Buyer shall purchase petty cash and register
cash from Seller at closing and reimburse Seller for
any security deposit on deposit with the landlord of
the retail location; and
(e) Adjustments to the total purchase price, up or down,
based on the actual inventory, shall be made in the
number of shares of Buyer's common stock given as
consideration, summating the Closing.
2. EXTENT OF AMENDMENT. Except as amended hereby, all provisions of the
Agreement shall remain in full force and effect.
3. COUNTERPARTS. This Amendment may be executed in a number of identical
counterparts, each of which for all purposes is to be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
BUYER: HORIZON PHARMACIES, INC.
By:
---------------------------------
Ricky D. McCord, President
SELLER: MARTIN DRUG CORPORATION
d/b/a INTERURBAN PHARMACY
-------------------------------------
David DeVido, President
2
<PAGE>
EXHIBIT 2.5
AMENDMENT NO. 1
TO THE
PURCHASE AGREEMENT
DATED JULY 25, 1998
THIS AMENDMENT NO. 1 (the "Amendment"), dated effective the 25th day of
July, 1998, to the Purchase Agreement dated July 25, 1998, (the "Agreement"),
by and among Carlen Corporation d/b/a Briargrove Pharmacy, a Texas
corporation ("Seller"), and HORIZON Pharmacies, Inc., a Texas corporation
("Buyer"). Unless otherwise defined herein, capitalized terms used but not
defined herein shall have the meaning set forth in the Agreement and the
Agreement shall be amended to incorporate any additional definitions provided
for in this Amendment.
WHEREAS, pursuant to the Agreement, the Buyer previously agreed to
purchase the Property from Seller;
AND WHEREAS, the parties desire to amend the consideration payable by
the Buyer under the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereby agree as follows:
1. AMENDMENT TO SECTION 2.3 Section 2.3 of the Agreement is hereby
amended to read in its entirety as follows:
2.3 PAYMENT OF THE PURCHASE PRICE. Buyer shall cause the purchase
price to be paid to Seller as follows:
(a) $465,000.00 cash payable by the Buyer at Closing by
certified or cashier's check (less the Earnest Money
Deposit as such term is defined in Section 2.4, below);
(b) Shares of Buyer's common stock, par value $.01 per
share (the "HORIZON Common Stock"), equivalent to
$787,986.00 based upon the average closing price of the
HORIZON Common Stock as reported in the Wall Street
Journal for the ten (10) business days immediately
preceding the Closing Date, as such term is defined in
Section 7.1, below. The dollar amount will equal the
actual evaluation of the store inventory less $135,000,
and plus or minus any adjustments per Sections 2.3(d) and
2.3(e) below;
(c) Pursuant to Section 8.3, a negotiable promissory note for
$100,000.00, payable to David DeVido in two equal
installments due six (6) months and twelve (12) months
from the date of purchase in the form attached as Exhibit
"C" attached hereto secured by the inventory of the Drug
Store in an amount sufficient to cover the outstanding
principal plus accrued interest due thereon;
<PAGE>
(d) Buyer shall deduct from the purchase price payable
at Closing an amount equal to the sum of (i) Seller's pro
rata share of personal property taxes as described in
Section 2.5.2, below, and (ii) one half of the fee
charged by the third party inventory service;
(e) Additionally, Buyer and Seller shall prorate rent
and utilities for the month of July upon presentation of
invoices by Buyer (which may occur after the closing) and
Buyer shall purchase petty cash and register cash from
Seller at closing and reimburse Seller for any security
deposit on deposit with the landlord of the retail
location; and
(f) Adjustments to the total purchase price, up or down,
based on the actual inventory, shall be made in the
number of shares of Buyer's common stock given as
consideration, summating the Closing.
2. EXTENT OF AMENDMENT. Except as amended hereby, all provisions of the
Agreement shall remain in full force and effect.
3. COUNTERPARTS. This Amendment may be executed in a number of
identical counterparts, each of which for all purposes is to be deemed an
original
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
BUYER: HORIZON PHARMACIES, INC.
By:
------------------------------
Ricky D. McCord, President
SELLER: CARLEN CORPORATION
d/b/a/ BRIARGROVE PHARMACY
----------------------------------
David DeVido, President
2
