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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): August 6, 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.
On August 6, 1998, the registrant, HORIZON Pharmacies, Inc.
("Registrant"), acquired substantially all of the assets of Borger Pharmacy,
Inc. d/b/a Moore's Pharmacy and Moore's Home Health Care, Inc. (the "Borger
Stores") comprising primarily pharmacy files, receivables, furniture,
equipment, inventory, supplies, trademarks and trade names. The Registrant
acquired the assets through arm's-length negotiations with Conny Moore, the
sole shareholder of the Borger Stores.
Prior to this transaction, no material relationships existed between the
Borger Stores 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) $800,000 cash
payable at closing; and (ii) 16,318 shares of the Registrant's common stock,
par value $.01 per share (the "HORIZON Common Stock").
The Registrant intends to continue the Borger Stores' operations under
the names HORIZON Pharmacies, Inc. and HORIZON Home Care, Inc. In connection
therewith, the Registrant has secured a real estate lease covering the
current retail location of the Borger Stores and has secured a valid Texas
license to do business at that location under the HORIZON Pharmacies, Inc.
name.
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:
Exhibit No. Name of Exhibit
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2.1 Purchase Agreement dated August 6, 1998 by and among
Borger Pharmacy, Inc. d/b/a Moore's Pharmacy, a Texas
corporation, Moore's Home Health Care, Inc., a Texas
corporation and HORIZON Pharmacies, Inc., a Delaware
corporation. 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.
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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 17, 1998 By: /s/ Ricky D. McCord
----------------------------
Ricky D. McCord, President
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PURCHASE AGREEMENT
AGREEMENT made the 6TH day of AUGUST , 1998 between BORGER PHARMACY,
INC. D/B/A MOORE'S PHARMACY AND MOORE'S HOME HEALTH CARE, INC. AT 600 SOUTH
MAIN STREET, BORGER, TEXAS 79007 Texas corporations ("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 A MOORE'S
PHARMACY AND MOORE'S HOME HEALTH CARE (the Drug Store") located at 600 SOUTH
MAIN STREET, BORGER, TEXAS 79007 (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 the 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; and
B. PRESCRIPTION FILES AND PATIENT PROFILES. All prescription files,
patient profiles and customer list, 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, postage meters, 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 MOORE'S PHARMACY AND MOORE'S HOME
HEALTH CARE and all variations thereof.
E. ACCOUNTS RECEIVABLE. Pharmacy individual accounts receivable and
home health care receivables at the date of closing. Seller to
keep all third party pharmaceutical receivables preceding the
date of the closing. Buyer shall have the right to put back any
pharmacy accounts receivable and/or home health care receivables
which have not been collected within ninety (90) days after the
date of purchase. Buyer shall have the right to offset said
amount against the then current outstanding balance of the
promissory note described in paragraph 2.3(c).
F. RADIO SHACK FRANCHISE. All rights, title and interest including
but not limited inventory, supplies, licenses, software.
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
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layaway; (iii) merchandise which is damaged, shopworn, faded
(including faded labels) or subject to visible deterioration;
(iv) merchandise which, in Buyer's reasonable opinion, is
unsalable because it is obsolete, its expiration date has expired
or it has been discontinued by the manufacturer; (v) seasonal
merchandise; or (vi) 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 90 days of the closing date; or (b) in a full,
sealed container with a date which is expired; (vii) all third
party insurance receivables for services rendered on or before
Closing Date
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) $1,175,831 for
prescription files, patient profiles, furniture, fixtures, equipment,
goodwill, non-compete agreement, and all individual accounts
receivable balances for Borger Pharmacy, Inc. and all receivables
Moore's Home Health Care, Inc. (the promissory note as described in
Exhibit "C" will be reduced by all uncollectable account receivable
balances after 90 days from the Closing Date); 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) $800,000 on the Closing Date by 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 $200,000 less any amount
paid to broker on behalf of the Seller, based upon 90% of 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; and.
(c) The balance in a negotiable promissory note in the form attached
in 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) Buyer shall assume the notes payable from Seller attached thereto
on as Schedule D.
2.4 EARNEST MONEY DEPOSIT. Buyer herewith deposits with N/A (the
"Escrow Agent"), the sum of $0 (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
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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 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>
<CAPTION>
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
Including but not limited
to the Drug Store Normal
inventory and the Home
Health assets
</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>
<CAPTION>
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 40%
Watches/Cameras Retail price less 50%
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. 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 collect 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 Drug
Store or the release, generation, discharge, manufacture,
treatment, transportation or discharge of hazardous material
on, in, under or from the Drug Store.
<PAGE>
3.1.7 CONTRACTS. Seller is not 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. The Buyer
will assume contractual agreements on Yellow Page
advertisement, Xerox copier, Pitney Bowes equipment, and
computer maintenance for services performed after the
Closing Date. All outstanding balances on the above
mentioned contracts are the sole responsibility of the
Seller.
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.
(c) Seller has paid or made adequate reserves on its books of
account for all taxes, assessments, fees, penalties,
interest and other governmental charges which have become
due and payable, and the amounts reflected on such books
are to Seller's best knowledge sufficient for the payment of
all unpaid Federal, state, local, foreign, and other taxes,
fees, and assessment and all interest and penalties thereon
with respect to the periods then added and or all periods
prior thereto.
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
<PAGE>
the Securities Act and all applicable regulations thereunder,
or Seller has received an 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 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 of the public enemy, or any judicial, administrative or
governmental proceeding.
4.1.5 LEASE OF RETAIL LOCATION. Buyer shall have executed a lease
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.
4.1.7 RADIO SHACK FRANCHISE. Purchase of the Radio Shack franchise is
subject to the approval of the Buyer by Tandy Corporation as the
new owner of the franchise within a period of 30 days from the
date of purchase. If the approval of the purchase is not
received, the Buyer shall have the right to offset the purchase
price of all Radio Shack inventory against the current
outstanding balance of the promissory note described in
paragraph 2.3(c).
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.
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 except those listed on Exhibit "D", regardless
of whether such liabilities or obligations are absolute or contingent,
liquidated or unliquidated or otherwise.
6. INDEMNIFICATION.
6.1 SELLER'S INDEMNIFICATION OF BUYER. Seller and CONNY MOORE 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 CONNY MOORE 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.
<PAGE>
6.2 BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify and hold
harmless Seller and CONNY MOORE 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.
7. CLOSING.
7.1 CLOSING DATE. The closing shall take place at the Retail Location on
or before AUGUST 6, 1998 (the "Closing Date").
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; (ii) the Note and security Agreement
provided for in Section 2.3; and (iii) evidence of the shares of
Common Stock provided for in Section 2.3.
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.
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 herein, CONNY MOORE
shall not, for a period of five (5) 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 the city limits of BORGER, TEXAS. The parties
expressly agree that CONNY MOORE may serve no more than one (1) day
per week as a relief pharmacist at retail pharmacies (but not
including hospital 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
<PAGE>
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. Seller and CONNY MOORE 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 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have set their hands
the day and year first above written.
BUYER: HORIZON Pharmacies, Inc.
Witness:
- -------------------- ---------------------------------
Bob Mueller, Vice President
SELLER: Borger Pharmacy, Inc. AND
Moore's Home Health Care, Inc.
Witness:
- -------------------- ---------------------------------
Conny Moore, President
