SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): April 1, 1997
HANGER ORTHOPEDIC GROUP, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 1-10670 84-0904275
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification
Number)
7700 Old Georgetown Road, Bethesda, Maryland 20814
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (301) 986-0701
Not Applicable
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(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets.
On April 1, 1997, Hanger Prosthetics & Orthotics, Inc. ("HPO"), a
wholly-owned subsidiary of Hanger Orthopedic Group, Inc. (the "Company"),
acquired substantially all of the assets of ACOR Orthopaedic, Inc. ("Acor"), a
company primarily engaged in providing orthotic and prosthetic patient care
services in the central Ohio area and headquartered in Cleveland, Ohio.
Substantially all of the assets of Acor were acquired by the Company,
through HPO, pursuant to the terms of an Asset Purchase Agreement, dated as of
March 26, 1997 (the "Agreement"), by and between HPO, Acor, and Jeff Alaimo,
Greg Alaimo and Mead Alaimo (collectively, the "Shareholders"). The aggregate
purchase price paid by the Company to Acor under the Agreement was $5,364,200,
consisting of $3,500,000 in cash, $1,700,000 in a two-year promissory note
bearing interest at 8.25% per annum and $164,200 in a two-year promissory note
bearing no interest. The purchase price is subject to increase in the event
the business conducted by the Company with the purchased assets exceeds at
least $4,800,000 in net revenues in each of the five years immediately
following the closing of this acquisition. The Company also assumed certain
liabilities of Acor, including Acor's leases at its four offices located in
South Euclid, Westlake, Willoughby and Canton, Ohio. A copy of the Agreement
is filed as an exhibit to this report. The Company's acquisition loan facility
with Banque Paribas was used to finance the purchase of the Acor assets.
The Company plans to continue to employ Acor's 50 employees, of whom 10
are certified orthotists and prosthetists, 12 are technicians and 28 are
administrative employees. The Company plans to maintain the assets purchased
and related operations at Acor's four current locations in South Euclid,
Westlake, Willoughby and Canton, Ohio, under leases assumed by the Company in
this transaction.
Item 5. Other Events
On March 5, 1997, the Company purchased substantially all the assets of
Prosthetic Treatment Center, Inc., a Tennessee corporation with one
patient-care facility located in Kingsport, Tennessee. The acquisition did not
involve a "significant amount of assets" within the meaning of Instruction 4
to Item 2 of Form 8-K. The total purchase price was $500,000, of which
$250,000 was paid in cash at the closing and the balance of $250,000 was
represented by a 5-year promissory note bearing interest at the rate of 8% per
annum. This purchase price is subject to a reduction of $100,000, which will
be deducted from the promissory note, in the event the net sales of the
business to be conducted with these purchased assets do not exceed $600,000
for the 12-month
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period immediately following the closing. The patient-care facility will be
managed by a certified prosthetist who is being transferred from the Company's
existing facility located in Knoxville, Tennessee. The Company also retained
and employed 2 technicians and 1 administrative employee from the seller's
business.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(a) Financial Statements of Businesses Acquired.
(b) Pro Forma Financial Information.
In accordance with Items 7(a)(4) and 7(b)(2) of Form 8-K, the financial
statements of Acor called for by Item 7(a) of Form 8-K and Rule 3-05 of
Regulation S-X, and the pro forma financial information called for by Item
7(b) of Form 8-K and Article XI of Regulation S-X, will be filed by amendment
as soon as practicable but not later than June 16, 1997.
(c) Exhibits. The following exhibit is filed herewith in accordance with
Item 601 of Regulation S-K:
<TABLE>
<S> <C>
Exhibit No. Document
2 Asset Purchase Agreement, dated as of
March 26, 1997, by and between Hanger
Prosthetics & Orthotics, Inc., Acor
Orthopaedic, Inc., and Jeff Alaimo,
Greg Alaimo and Mead Alaimo.
</TABLE>
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SIGNATURES
Pursuant to the requirements 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.
Date: April 15, 1997 HANGER ORTHOPEDIC GROUP, INC.
By:/s/RICHARD A. STEIN
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Richard A. Stein
Vice President-Finance,
Secretary and Treasurer
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ASSET
PURCHASE AGREEMENT
BETWEEN
HANGER PROSTHETICS & ORTHOTICS, INC.,
AS BUYER
AND
ACOR ORTHOPAEDIC INC.,
AS SELLER
AND
JEFF ALAIMO,
GREG ALAIMO
AND
MEAD ALAIMO,
AS SHAREHOLDERS
MARCH 26, 1997
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<TABLE>
TABLE OF CONTENTS
<CAPTION>
SECTION NO. AND TITLE PAGE NO.
<S> <C>
1. Sale of Assets 1
2. Assumption of Liabilities 2
3. Closing 2
4. Purchase Price 3
5. Employment and Non-Competition Agreements 8
6. Instruments of Transfer; Payment of Purchase 9
Price; Further Assurances
7. Representations and Warranties of the Seller 13
and Shareholders
8. Representations and Warranties of the Buyer 21
9. Covenants of the Seller and Shareholders 24
10. Conditions Precedent to the Obligations of the 29
Seller and Shareholders
11. Conditions Precedent to the Obligations of the 33
Buyer
12. Termination and Survival of Covenants, 37
Representations and Warranties
13. Indemnification 38
14. Risk of Loss 43
15. Brokerage 44
16. License 44
17. Waivers and Notices 45
18. Assignment 46
19. Press Release 46
20. Use of Seller's Financial Information 46
21. Costs and Expenses 47
22. Miscellaneous 47
23. Governing Law 47
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24. Allocation Filings 48
</TABLE>
Schedules
1.1 Purchased Assets
1.2 Excluded Assets
2.1 Assumed Liabilities
7.1 Claims and Liabilities
7.2 Liens on and Any Problems With Purchased Assets
7.3 Litigation
7.4 Consents
16.1 Compliance with Uniform Commercial Code - Bulk Transfers
Exhibits
A - Forms of Promissory Notes
B - Forms of Employment and Non-Competition Agreements
C - Form of Non-Competition Agreement
D - Form of Bill of Sale
- ii -
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT ("Agreement"), dated as of March 26, 1997, by
and between HANGER PROSTHETICS & ORTHOTICS, INC., a Delaware corporation with
executive offices at 7700 Old Georgetown Road, Second Floor, Bethesda,
Maryland 20814 (including its affiliates and subsequent transferees,
hereinafter referred to as "Buyer"); ACOR ORTHOPAEDIC INC., an Ohio
corporation with executive offices at 18530 South Miles Parkway, Cleveland,
Ohio 44128 (hereinafter referred to as "Seller"); and JEFF ALAIMO, an
individual residing at 6348 Rockledge Drive, Brecksville, Ohio 44141, GREG
ALAIMO, an individual residing at 861 Hardwood Court, Mayfield Village, Ohio
44040, and MEAD ALAIMO, an individual residing at 4559 Woodbridge Lane,
Breacksville, Ohio 44141 (hereinafter collectively referred to as the
"Shareholders").
WHEREAS, the Seller desires to sell substantially all of its assets
related to its retail orthotic and prosthetic business (the "Business") to the
Buyer and the Buyer desires to purchase substantially all of said assets of
the Seller.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
understandings herein set forth and subject to the terms and conditions
hereof, the parties hereto agree as follows:
1. SALE OF ASSETS. At the Closing hereinafter referred to, the Seller
will sell, transfer, assign, convey and deliver to
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the Buyer and the Buyer will purchase, accept and acquire from the Seller,
free and clear of all liens, claims, encumbrances, charges and restrictions
whatsoever except as noted herein, substantially all the assets of Seller
relating to the Business (excluding cash, vehicles other than the two (2) vans
provided below, trade names, patents and trade marks), including, without
limitation, all inventory, work in progress, accounts receivable, prepaid
expenses, security deposits, leasehold improvements, machinery, equipment, two
(2) van vehicles, customer lists and files, all contracts, leases, furniture,
supplies, trade fixtures, all telephone numbers serving the Business and
access to, or copies of, books of accounts, files, papers and records relating
to the Business, all as more fully set forth on Schedule 1.1 hereto
("Purchased Assets") but specifically excluding all accounts due to Seller
from officers, directors and/or affiliates of Seller, as well as all other
assets set forth on Schedule 1.2 hereto.
2. ASSUMPTION OF LIABILITIES. Except as set forth on Schedule 2.1 hereto
relating to the assumption by Buyer of certain liabilities of Seller, Buyer
will not assume any liabilities whatsoever of Seller.
3. CLOSING. The Closing ("Closing") shall take place either by mutually
agreeable mail or wire delivery of documents and funds or at the offices of
Freedman, Levy, Kroll & Simonds,
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1050 Connecticut Avenue, N.W., Washington, D.C. 20036 on April 1, 1997;
provided, however, that the Closing may be adjourned for any reason by either
the Buyer, the Seller or the Shareholders to a mutually agreeable date, up to
the close of business on April 1, 1997. Any extension beyond April 1, 1997
must be agreed to in writing by the Buyer, the Seller and the Shareholders.
4. PURCHASE PRICE. Subject to the provisions of paragraphs 4(c) and 4(d)
below, the Purchase Price for the Purchased Assets and the non-competition
agreement referred to in paragraph 5 herein shall be Five Million Three
Hundred Sixty Four Thousand Two Hundred Dollars ($5,364,200), consisting of
cash and two (2) promissory notes, as set forth below:
(a) The cash portion of the Purchase Price shall be Three Million
Five Hundred Thousand Dollars ($3,500,000), payable to the Seller at the
Closing, with $50,000 of the Purchase Price being allocated to the
non-competition agreement referred to in paragraph 5 herein; and
(b) The delivery at the Closing of Buyer's Promissory Notes, in the
forms attached hereto as Exhibits A-1 and A-2, with one promissory note
being in the amount of One Million Seven Hundred Thousand Dollars
($1,700,000), payable to the Seller monthly over two (2) years with
interest from the date
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of Closing at the prime rate made available to the Buyer from time to
time by its senior lender (which currently is 8.25%) per annum on the
unpaid balance, and with the other promissory note being in the amount of
One Hundred Sixty Four Thousand Two Hundred Dollars ($164,200), payable
to the Seller monthly over two (2) years without interest.
(c) Notwithstanding anything else contained in this paragraph 4, the
Purchase Price for the Purchased Assets and the non-competition agreement
referred to in paragraph 5 herein may be increased as follows: (i) in the
event the business conducted by the Buyer at the four (4) locations (the
"Locations") of Seller as identified in paragraph 9(g) attains at least
$4,800,000 in net revenues (with the term "net revenues" being defined as
gross sales less non-allowed insurance charges, discounts and sales
allowances) for the first 12-month period immediately following the
Closing, then the Seller shall be paid, within sixty (60) days of the
close of such 12-month period, an additional $400,000 as part of the
Purchase Price; (ii) in the event the business conducted by the Buyer at
the Locations exceeds $4,800,000 in net revenues for the first 12-month
period immediately following the Closing, then the Seller shall be paid,
within sixty (60) days of the close of such 12-month period, the product
of the following formula: {$85,000 x [(NR -$4,800,000)/$500,000]},
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where "NR" represents the net revenues for such 12-month period; (iii) in
the event the business conducted by the Buyer at the Locations attains at
least $4,800,000 in net revenues for the 12-month period commencing in
the thirteenth (13th) month immediately following the Closing and ending
with the twenty-fourth (24th) month immediately following the Closing,
then the Seller shall be paid, within sixty (60) days of the close of
such 12-month period, an additional $400,000 as part of the Purchase
Price; (iv) in the event the business conducted by the Buyer at the
Locations exceeds $4,800,000 in net revenues for the 12-month period
commencing in the thirteenth (13th) month immediately following the
Closing and ending with the twenty-fourth (24th) month immediately
following the Closing, then the Seller shall be paid, within sixty (60)
days of the close of such 12-month period, the product of the following
formula: {[$85,000 x (NR -$4,800,000)/$500,000]}, where "NR" represents
the net revenues for such 12-month period; (v) in the event the business
conducted by the Buyer at the Locations exceeds $4,800,000 in net
revenues for the 12-month period commencing in the twenty-fifth (25th)
month immediately following the Closing and ending with the thirty-sixth
(36th) month immediately following the Closing, then the Seller shall be
paid, within sixty (60) days of the close of such 12-month period, the
product of the following formula: {[$85,000 x (NR
-$4,800,000)/$500,000]}, where "NR" represents the net revenues for such
12-month period; (vi) in the event the business conducted by the Buyer at
the Locations exceeds $4,800,000 in net revenues for the 12-month period
commencing in the thirty-seventh (37th) month immediately following the
Closing and ending with the forty-eighth (48th) month immediately
following the Closing, then the Seller shall be paid, within sixty (60)
days of the close of such 12-month period, the product of the following
formula: {[$85,000 x (NR
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-$4,800,000)/$500,000]}, where "NR" represents the net revenues for such
12-month period; and (vii) in the event the business conducted by the
Buyer at the Locations exceeds $4,800,000 in net revenues for the
12-month period commencing in the forty-ninth (49th) month immediately
following the Closing and ending with the sixtieth (60th) month
immediately following the Closing, then the Seller shall be paid, within
sixty (60) days of the close of such 12-month period, the product of the
following formula: {[$85,000 x (NR -$4,800,000)/$500,000]}, where "NR"
represents the net revenues for such 12-month period.
(d) At the Closing, the Buyer shall also pay to the Seller as part
of the Purchase Price up to an additional $50,000 as reimbursement to the
Seller for amounts actually paid by the Seller to unaffiliated
third-parties for the
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build-out of Seller's store in Canton, Ohio.
(e) The parties desire that the non-cash working capital of the
Seller at the Closing be $1,233,000. At the Closing, if the non-cash
working capital of Seller is less than $1,213,000, then in such event the
Buyer shall reduce the principal amount of the $1,700,000 Promissory Note
portion of the Purchase Price by the difference between $1,213,000 and
the actual non-cash working capital of Seller at the Closing. At the
Closing, if the non-cash working capital of Seller is more than
$1,253,000, then the Buyer shall increase the cash portion of the
Purchase Price by the amount by which the actual non-cash working capital
amount at the Closing exceeds $1,253,000.
(f) Along with the payments described in paragraph 4(c), Buyer will
deliver to Seller sufficient information and calculations (collectively,
the "Original Calculation") to enable Seller to understand the
determination of the amount of the payments. Buyer will grant Seller, the
Shareholders, and their respective representatives with prompt and full
access to, and the right to copy and audit, the books and records of
Buyer pertaining to the business conducted at the Locations for the
periods referenced in paragraph 4(c). Buyer will deliver to Seller within
45 days after the end of
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each quarter, copies of profit and loss statements relating to the
Locations for the periods referenced in paragraph 4(c). Buyer will
promptly deliver to Seller copies of all documents relating to Buyer that
are filed publicly or generally sent to shareholders of Buyer's parent,
Hanger Orthopedic Group, Inc.
(g) If a party disagrees with the determination of the amount of any
payment under paragraph 4(c), it may retain the payment delivered, but
shall deliver to the other party a notice explaining the alleged
discrepancy (the "Dispute Notice") within 60 days of receipt of the
Original Calculation. If the parties are unable to resolve the dispute
with 30 days of receipt of the Dispute Notice, then the parties shall
mutually select one of the "Big 6" accounting firms other than Coopers &
Lybrand (the "Accountants") to resolve the dispute. The costs and
expenses of the Accountants shall be borne by the party whose initial
proposed calculation is farther from the final determination by the
Accountants.
5. EMPLOYMENT AND NON-COMPETITION AGREEMENTS. Jeff Alaimo shall enter
into an employment and non-competition agreement with the Buyer, substantially
in the form of Exhibit Exhibit B-1 hereto. Seller shall use commercially
reasonable efforts to cause the following employees of Seller to enter into
employment and
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non-competition agreements with the Buyer, substantially in the form of
Exhibit B-2 hereto: Sharon Kelly, Rick Skabar, Matthew Manolio, Joe Garcia and
Kim Reed. Seller, Mead Alaimo and Greg Alaimo shall enter into a five (5) year
non-competition agreement with the Buyer, substantially in the form of Exhibit
C hereto.
6. INSTRUMENTS OF TRANSFER; PAYMENT OF PURCHASE PRICE; FURTHER
ASSURANCES.
(a) At the Closing, the Seller shall deliver to the Buyer:
(i) A bill of sale, substantially in the form of Exhibit D
hereto;
(ii) Such other instrument or instruments of transfer as
shall be necessary or appropriate to vest in the Buyer
good and marketable title to the Purchased Assets; and
(iii) To the extent reasonably possible, such other consents,
permissions, or other authorizations as shall, in the
opinion of Buyer's counsel, be necessary or
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appropriate to permit Seller to consummate the
transaction contemplated by this Agreement.
(b) At the Closing, the Buyer shall deliver to the Seller:
(i) Wired funds, in the amount of $3,500,000 representing a
part of the cash portion of the Purchase Price for the
Purchased Assets;
(ii) Two (2) Promissory Notes, made by the Buyer and
substantially in the forms of Exhibits A-1 and A-2
hereto, with one promissory note being in the principal
amount of $1,700,000, payable monthly over two (2) years
with interest from the date of Closing at the prime rate
made available to the Buyer from time to time by its
senior lender (which currently is 8.25%) per annum on
the unpaid balance, and with the other promissory note
being in the amount of $164,200, payable to the Seller
monthly over two (2) years without interest; and
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(iii) Such further instruments as Seller or any creditor or
other person to whom Seller is, obligated on any lease,
agreement or instrument may timely and reasonably
request as a condition to the release of the Seller from
its obligations, if any, being assumed by the Buyer at
the Closing, including lease obligations, provided the
Buyer shall not be required to deliver (and it shall not
be a condition of Seller's obligation to close that
Buyer shall so deliver) any such instrument if, in the
reasonable opinion of the Buyer or the Buyer's counsel,
the effect of the delivery of such instrument might be
to materially and adversely modify, increase or
otherwise materially and adversely affect the Buyer's
liability or obligation to such lessor, sublessor,
creditor or other person.
(c) Following the Closing:
(i) Buyer shall deliver to the Seller, within the dates
specified in paragraph 4(c) hereof after the Closing,
the amounts (if
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any) calculated in accordance with paragraph 4(c) in
cash, certified check or wired funds, representing
adjustments to the cash portion of the Purchase Price
for the Purchased Assets;
(ii) at the request of the Buyer, in addition to the
documents and instruments to be delivered at Closing,
Seller shall deliver any further instruments of transfer
and take all reasonable action as may be necessary or
appropriate to transfer to the Buyer all licenses and
permits that are transferable that are necessary for the
operation of the Purchased Assets listed on Schedule
1.1; and
(iii) Seller, at no cost or charge to Buyer, will provide
Buyer with access to, or copies of, all accounting
information (including schedules, analyses of accounts
and the like) for the past three years and for the
current year period, to and including the Closing,
necessary for Buyer to conduct the on-going business
being purchased from
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Seller.
Seller agrees to preserve all books and records of Seller at
Seller's executive offices in Cleveland, Ohio in space leased by Buyer
thereat, for a period of five years after the Closing.
7. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND SHAREHOLDERS. The
Seller and the Shareholders represent and warrant to the Buyer as follows;
provided, however, that the Shareholders shall not be liable for any matter
beyond their actual knowledge:
(a) POWER. Seller is, and at the Closing shall be, duly organized,
validly existing and in good standing under the laws of Ohio
and has all requisite power and authority to own, operate and
lease its properties related to the Business, to carry on the
Business as now being conducted, and to enter into this
Agreement and perform its obligations hereunder.
(b) ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on the
unaudited balance sheet, dated July 31, 1996, of the Seller or
in Schedule 7.1 hereto,
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the Seller and the Shareholders do not know, or have
reasonable ground to know, of any basis for assertion against
the Business, as of the date of this Agreement, of any claim
or liability of any nature.
(c) NO ADVERSE CHANGE. Since July 31, 1996, Seller and the
Shareholders do not know of (i) any material adverse change in
the financial condition, or in the operations, business,
properties or assets of the Business or (ii) any damage,
destruction or loss to any of the properties or assets of the
Business, whether or not covered by insurance, which has
materially and adversely affected or impaired or which does or
may materially and adversely affect or impair the ability of
Seller to conduct the Business.
(d) TAX RETURNS AND PAYMENTS. Seller has filed all required
Federal, state and local tax returns and reports and has duly
paid all taxes, including payroll taxes, and other
governmental charges upon it or its properties, assets,
income, franchises, licenses or sales, material to Seller or
Seller's operations, which are due, and will pay those that
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will be due when they become due, except as set forth on
Schedule 7.1 hereto.
(e) TITLE TO PROPERTY AND ASSETS. Except as set forth on Schedule
7.2 hereto, Seller has good title, free and clear of all
liens, claims, encumbrances, charges, easements and
restrictions whatsoever, to its properties and assets, real,
personal and intangible, listed in Schedule 1.1 hereto.
(f) CONDITION OF PROPERTY. Except as set forth in Schedule 7.2
hereto, the Purchased Assets, taken as a whole, are in good
operating condition and repair.
(g) INVENTORIES. The inventories of raw material, work in process
and finished goods for the Business (collectively called
"Inventory") shown or to be shown on the balance sheet of
Seller to be included in financial statements for the period
ended July 31, 1996, have been valued on the "first in, first
out" (FIFO) method and represent Inventory that is usable and
salable at not less than values reflected. Such Inventory,
subject to increase and decrease in the ordinary course of
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business since July 31, 1996, shall be transferred to Buyer at
the Closing.
(h) LITIGATION, ETC. Except to the extent set forth in Schedule
7.3 hereto, there is no suit, action or litigation,
administrative, arbitration or other proceeding or
governmental investigation or inquiry or any change in the
environment, zoning or building laws, regulations or
ordinances affecting the real property or leasehold property
of the Business or its business operations, pending or, to the
knowledge of the Seller or the Shareholders, threatened, which
might, severally or in the aggregate, adversely affect the
financial condition, business, property or assets of the
Business. Neither Seller nor the Shareholders have received
notice that the Seller is in violation in any material
respect, of any laws, ordinances, requirements, regulations or
orders applicable to the Business and property.
(i) AUTHORITY. The Shareholders are the only owners, beneficially
and of record, of all the outstanding shares of capital stock
of the Seller and no other person or entity has any right to
acquire any
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interest whatsoever in, or vote any shares of, the Seller.
Seller and the Shareholders have taken, or will have taken
prior to Closing, all necessary corporate action to approve
this Agreement and the performance of its obligations
hereunder.
(j) COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither the execution
nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, will conflict with or result
in any violation of or constitute a default under any term of
the Articles of Incorporation or Bylaws of the Seller or any
agreement, mortgage, indenture, franchise, license, permit,
authorization, lease or other instrument, judgment, decree,
order, law or regulation by which the Seller is bound which is
essential to the conduct, on an ongoing basis by the Buyer, of
the Business.
(k) CONSENTS. Except as set forth on Schedule 7.4 hereto, no
consents of any Federal, state or local governmental body are
necessary in connection with this transaction or the
assignment to Buyer of any contracts held by Seller.
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(l) PATENTS AND TRADEMARKS. Other than the name "Acor," there are
no patents or trademarks which are necessary for the conduct
of the Business in the manner which the Business has been
conducted by Seller.
(m) ADVERSE AGREEMENTS. Seller is not a party to any agreement or
instrument or in violation of any charter or other corporate
restriction or any judgment, order, writ, injunction, decree,
rule or regulation which materially and adversely affects or,
so far as the Seller can now foresee, may in the future
adversely affect the business operations, prospects,
properties, assets or condition, financial or otherwise, of
the Business conducted by the Seller with the Purchased
Assets.
(n) BROKERS. Except for the fee which is due solely from Seller to
Carleton, McCreary & Holmes, for which Seller agrees to
indemnify Buyer, all negotiations relating to this Agreement
and the transactions contemplated hereby have been carried on
without the intervention of any other person in such manner as
to give rise to any valid claim against Seller for a finder's
fee, brokerage
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commission or other like payment. The Seller has not done any
act which gives rise to any valid claim against the Buyer for
a finder's fee, brokerage commission or other like payment.
(o) MISLEADING, FALSE OR OMITTED STATEMENTS. No representation or
warranty by Seller or the Shareholders herein or in any
document attached hereto (including the Schedules) contains or
will contain any untrue statement of material fact or omits or
will omit to state a material fact (of which Seller or the
Shareholders have knowledge or notice) required to make the
statements herein or therein made, in the light of the
circumstances under which such statements were made, not
misleading.
(p) ENVIRONMENTAL COMPLIANCE. Neither the Seller nor any of its
past owned or leased real properties or operations, are
subject to or the subject of, any proceeding, order,
settlement, or other contract or agreement arising under any
environmental laws,
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rules or regulations, nor has any investigation been commenced
or is any proceeding threatened against the Seller under any
environmental laws, rules or regulations with regard to the
Seller's business activities. The Seller has not received any
written notice, report or other written information regarding
any actual or alleged violation of any environmental laws,
rules or regulations, or any liabilities or potential
liabilities, including any investigatory remedial or
corrective obligations, relating to the Seller's business
activities or the real properties owned or operated by the
Seller and arising under any environmental laws, rules or
regulations. None of the following exists, nor has ever
existed, at any real property previously owned or operated by
the Seller in connection with the Business in a manner
requiring remediation under environmental laws, rules or
regulations: (1) underground storage tanks, (2)
asbestos-containing material in any form or condition, (3)
materials or equipment containing polychlorinated biphenyls or
(4) landfills, surface impoundments or disposal areas. The
Seller has not treated, stored, disposed of, arranged for or
permitted the disposal of, transported, handled or released
any substance, or owned or operated any real property (and no
such real property is contaminated by any
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such substance) in a manner that has given or could reasonably
be expected to give rise to onsite or offsite liabilities
pursuant to any environmental laws, rules or regulations,
including any liability for response costs, corrective action
costs, personal injury, property damage, natural resources
damage or attorney fees, or any investigative, corrective or
remedial obligations. The Seller has provided Buyer with
correct and complete copies of all reports and studies within
the possession or control of the Seller with respect to past
or present environmental conditions or events at any of real
properties presently or previously owned or operated by the
Seller in connection with the Business.
8. REPRESENTATIONS AND WARRANTIES OF THE BUYER. Buyer represents and
warrants to the Seller and the Shareholders as follows:
(a) ORGANIZATION; GOOD STANDING. The Buyer is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware and authorized to do business in
the
21
<PAGE>
State of Ohio, with all requisite corporate power to own,
operate and lease its properties and assets and to enter into
and perform its obligations hereunder. At the Closing, the
Buyer will be qualified to do business and will be in good
standing as a foreign corporation in Ohio.
(b) LITIGATION. There is no suit, action, or litigation,
administrative, arbitration or other proceeding or
governmental investigation pending or, to the knowledge of the
officers of the Buyer, threatened, which might, severally or
in the aggregate, materially and adversely affect the
financial condition or prospects of the Buyer.
(c) AUTHORITY. The Buyer has taken, or will have taken prior to
the Closing, all necessary corporate action to approve this
Agreement and the performance of its obligations hereunder.
(d) BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without
the intervention of any other person in such manner as to give
rise to any valid claim against the Buyer for a finder's fee,
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<PAGE>
brokerage commission or other like payment. The Buyer has not
done any act which gives rise to any valid claim against the
Seller or the Shareholders for a finder's fee, brokerage
commission or other like payment.
(e) Compliance With Other Instruments, etc. Neither the execution
nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, will conflict with or result
in any violation of or constitute a default under any term of
the Articles of Incorporation or Bylaws of Buyer or any
agreement, mortgage, indenture, franchise, license, permit,
authorization, lease or other instrument, judgment, decree,
order, law or regulation by which Buyer is bound which is
essential to the conduct of the business of the Buyer on an
ongoing basis.
(f) Adverse Agreements. Buyer is not a party to any agreement or
instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree,
rule or regulation which materially and adversely affects or,
so far as the Buyer can now foresee, may in
23
<PAGE>
the future adversely affect the ability of Buyer to perform
its obligations hereunder.
9. COVENANTS OF THE SELLER AND THE SHAREHOLDERS. The Seller and the
Shareholders agree that, prior to the Closing:
(a) CONSENTS. Seller and the Shareholders shall obtain all
consents and authorizations of third parties and make all
filings with and give all notices to third parties which may
be necessary or reasonably required in order to effect the
transaction contemplated hereby and to assign all contracts
and all licenses described in Schedule 1.1 hereto.
(b) BUSINESS ORGANIZATION. Seller and the Shareholders will use
commercially reasonable efforts to preserve Seller's Business
organization intact and to keep available the services of its
employees and representatives and will preserve the goodwill
of its employees, customers, suppliers and others having
business relations with them. Jeff Alaimo shall enter into an
employment agreement with Buyer substantially in the form of
Exhibit B-1 hereto. Seller, Mead
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<PAGE>
Alaimo and Greg Alaimo shall enter into a non-competition
agreement with Buyer substantially in form of Exhibit C
hereto.
(c) TRANSACTIONS OUT OF ORDINARY COURSE OF BUSINESS. Except with
the prior written consent of the Buyer, the Seller shall not
enter into any transaction out of the ordinary course of the
Business as conducted by Seller.
(d) MAINTENANCE OF PROPERTIES, ETC. Subject to Section 7(f),
Seller will maintain all of the assets described in Schedule
1.1 in reasonable operating repair, order and condition,
reasonable wear excepted, and will maintain insurance upon all
of such properties and, with respect to the conduct of its
business, in such amounts and of such kinds comparable to that
in effect on the date of this Agreement.
(e) MAINTENANCE OF BOOKS, ETC. Seller will maintain the books,
accounts and records of the Business in the usual manner on a
basis consistent with prior years. Seller will duly comply in
all material respects with all laws and regulations applicable
25
<PAGE>
to the conduct of the Business.
(f) ACCESS TO PROPERTIES, ETC. Seller will give to the Buyer and
to its counsel, accountants, investment advisors and other
representatives, full access during normal business hours to
all of the properties, books, tax returns, contracts,
commitments and records of the Business, and will furnish to
the Buyer all such documents, certified if requested, and
information with respect to its affairs as the Buyer may from
time to time reasonably request. All of such information and
documents are hereinafter collectively called the
"Information." Buyer will conduct its investigation in a
manner designed to minimize any disruption of Seller's
business and shall not disclose to any person (except Buyer's
own accountants, attorneys and employees involved in such
investigation) the reason for such investigation. Buyer and
its agents and representatives shall hold confidential all of
the Information and shall not disclose the Information except
(i) as required by a court of law (provided Buyer gives Seller
sufficient prior notice to contest the court's order for
disclosure) or (ii)
26
<PAGE>
to its employees who require it solely and only for the
purpose of evaluating the acquisition by Buyer, and only if
such employees are subject to a written policy or agreement of
confidentiality substantially identical to this paragraph.
Buyer and its agents and representatives may not use or employ
the Information, directly or indirectly, for any purpose other
than the valuation by Buyer of the acquisition of the
Business.
(g) LEASES. Seller and the Shareholders covenant to maintain the
leases for the Seller's four (4) offices located at (i) 4129
Mayfield Road, South Euclid, Ohio 44121, (ii) St. John
Westshore Health Care Campus, 29101 Health Campus Drive,
Building 2, Suite 104, Westlake, Ohio 44145, (iii) Lake West
Medical, 36100 Euclid Avenue, Suite 140, Willoughby, Ohio
44904, and (iv) 4760 Belpar Street NW, Canton, Ohio 44718,
through the Closing, during which time the Buyer will be
negotiating with the landlords thereat with respect to either
the assumption of such leases or the execution of new leases
for such locations. Seller and the Shareholders further
covenant to maintain the lease for the Seller's corporate
27
<PAGE>
office at 18530 South Miles Parkway, Cleveland, Ohio 44128,
through the Closing, at which time the Buyer will execute a
sublease with the Seller for the lease of a portion of such
space on a month-to-month basis. Seller and the Shareholders
understand that the Buyer shall not assume any liability under
such leases or any liability to the Seller's landlords
thereunder with respect to the time period prior to the
Closing.
(h) ACCOUNTS RECEIVABLE. The Shareholders agree to guarantee the
accounts receivable, net of reserves in the July 31, 1996
balance sheet, of Seller as of the date of Closing ("Accounts
Receivable"), as evidenced by a list prepared by Seller and
delivered to, and accepted by, Buyer at the Closing, or as
soon as possible thereafter. If, by a date twelve (12) months
after the Closing, Buyer has not collected an amount equal to
the Accounts Receivable as of the date of Closing, the
Shareholders shall pay Buyer the difference between the amount
collected and the amount of Accounts Receivable, with notice
from Buyer of the amount of said difference and upon
assignment of said uncollected Accounts Receivable back to
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<PAGE>
Seller.
(i) EQUIPMENT LEASES. Seller and the Shareholders shall
assign to Buyer at the Closing all material equipment
leases held by the Seller or the Shareholders which
relate to the conduct of the Seller's Business.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER AND
SHAREHOLDERS. All obligations of the Seller and the Shareholders under this
Agreement are subject to the fulfillment, at the option of the Seller and the
Shareholders, at or prior to the date of the Closing, of each of the following
conditions:
(a) The representations and warranties of Buyer herein contained
shall be true on and as of the date of Closing in all material
respects with the same force and effect as though made on and
as of said date, except as affected by the transaction
contemplated hereby.
(b) The Buyer shall have performed all its obligations and
agreements in all material respects and shall have complied
with all its covenants in this
29
<PAGE>
Agreement in all material respects to be performed and
complied with by the Buyer at or prior to the Closing,
including the payment of the Purchase Price provided for
herein.
(c) Seller shall have received a certificate of the Buyer,
executed on behalf of the Buyer by its President, dated the
date of Closing, in form and substance reasonably satisfactory
to counsel for the Seller, certifying as to the fulfillment of
the matters specified in paragraphs (a) and (b) of this
Section 10.
(d) Freedman, Levy, Kroll & Simonds ("FLK&S"), counsel to the
Buyer, shall have delivered to Seller, an opinion, dated the
date of the Closing, in form and substance satisfactory the
Seller, to the following effect:
(i) Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware, authorized to do business in the State of
Ohio, with all requisite corporate power and authority
to own, operate and lease its property and as-
30
<PAGE>
sets;
(ii) Buyer has corporate power and authority to execute and
deliver this Agreement, and has taken all action
required by law, its Certificate of Incorporation,
By-Laws or otherwise to authorize such execution and
delivery and to consummate the acquisition contemplated
hereby, and this Agreement have been duly executed and
delivered by Buyer and are valid and binding obligations
of the Buyer, enforceable in accordance with their
terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and general
principals of equity;
(iii) After reasonable investigation, the extent of which may
be specifically set forth, it is not aware of any
action, suit or proceeding at law or in equity or by or
before any government instrumentality or agency now
pending or threatened against or affecting Buyer, or any
property or rights of Buyer; and
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<PAGE>
(iv) To the best of its knowledge, the Buyer is not in
default with respect to any judgment, writ, injunction
or decree of any court or government agency and the
Buyer is not in default in the performance, observance
or fulfillment of any material obligation, covenant or
agreement by which it is bound or by which any of its
assets are affected.
In giving such opinion, such counsel may rely, as to matters of
fact, upon certificates of officers of the Buyer.
(e) Seller shall have received a certificate of Buyer as to the
incumbency of its officers.
(f) Buyer shall have entered into (i) the employment and
non-competition agreement with Jeff Alaimo substantially in
the form of Exhibit B-1 hereto, (ii) the employment and
non-competition agreements with Sharon Kelly, Rick Skabar,
Matthew Manolio, Joe Garcia and Kim Reed substantially in the
form of Exhibit B-2 hereto and (iii) the non-competition
agreement in the form of Exhibit C
32
<PAGE>
hereto.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE BUYER. All obligations
of the Buyer under this Agreement are subject to the fulfillment, at the
option of the Buyer, at or prior to the date of the Closing, of each of the
following conditions:
(a) The representations and warranties of the Seller and the
Shareholders herein contained shall be true on as of the date
of the Closing in all material respects , with the same force
and effect as though made on and as of said date, except as
affected by transactions contemplated hereby.
(b) The Seller and the Shareholders shall have performed all of
their obligations and agreements in all material respects and
complied with all of the covenants contained in this Agreement
in all material respects to be performed and complied with by
them prior to the date of the Closing.
(c) The Buyer shall have received a certificate of the Seller,
executed by its President, dated the date of the Closing, in
form and substance reasonably satisfactory to FLK&S,
certifying as to the
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<PAGE>
fulfillment of the matters mentioned in paragraphs (a) and (b)
of this Section 11.
(d) The Buyer shall have received evidence, reasonably
satisfactory to the Buyer and FLK&S, that all of the material
consents set forth in Schedule 7.4 hereto, if any, have been
duly obtained, and that all material permits, licenses,
patents, franchises, contracts and other authorizations
necessary to the operation of Seller's business and described
in Schedule 1.1 hereto and that are transferable, have been
transferred to or issued to the Buyer.
(e) Thompson, Hine & Flory ("THF"), counsel to the Seller and the
Shareholders, shall have delivered to Buyer, an opinion, dated
the date of the Closing, in form and substance satisfactory to
FLK&S, to the following effect:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Ohio, with all requisite corporate power and
authority to own, operate and lease its properties and
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<PAGE>
assets;
(ii) Seller has all requisite power to execute and perform
its obligations under this Agreement;
(iii) The execution, delivery and performance by the Seller of
this Agreement (a) has been duly authorized by all
necessary action of Seller and the Shareholders, (b)
does not violate any provision of law and (c) to the
best of THF's knowledge, will not result in a breach in,
or constitute a default under, any indenture, agreement
or other instrument to which the Seller is party or by
which Seller or any of its properties or assets are
bound;
(iv) This Agreement has been duly executed and delivered by
Seller and the Shareholders. Assuming due execution by
the Buyer, this Agreement constitutes the valid and
binding obligation of the parties thereto enforceable in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and
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<PAGE>
general principals of equity;
(v) After reasonable investigation, the extent of which may
be specifically set forth, THF is not aware of any
action, suit or proceeding at law or in equity or by or
before any government instrumentality or agency now
pending or threatened against or affecting the ownership
or operation of Seller's business, or any property or
rights of Seller, except as set forth in Schedule 7.4
hereto;
(vi) To the best of THF's knowledge, the Seller is not in
default with respect to any judgment, writ, injunction
or decree of any court or government agency which
affects the ownership or operation of the business
operated by Seller and the Seller is not in default in
the performance, observance or fulfillment of any
material obligation, covenant or agreement by which it
is bound or by which any of the Purchased Assets are
affected; and
(vii) There is no Ohio law, regulation or ordinance
36
<PAGE>
affecting the Seller, Shareholders or the Purchased
Assets which requires that creditors of the Seller be
notified of the sale of the Purchased Assets.
In giving such opinion, such counsel may rely, as to matters
of fact, upon certificates of officers of the Buyer.
(f) Buyer shall have received a certificate of the Seller as to
the incumbency of its officers.
(g) Jeff Alaimo shall have entered into the employment and
non-competition agreement with Buyer substantially in the form
of Exhibit B-1 hereto; Sharon Kelly, Rick Skabar, Matthew
Manolio, Joe Garcia and Kim Reed shall have entered into the
employment and non-competition agreements with Buyer
substantially in the form of Exhibit B-2 hereto; and Seller,
Mead Alaimo and Greg Alaimo shall have entered into the
non-competition agreement in the form of Exhibit C hereto.
12. TERMINATION AND SURVIVAL OF COVENANTS, REPRESENTATIONS AND
WARRANTIES. The covenants, representations and warranties
37
<PAGE>
contained in Sections 7, 8 and 9 of this Agreement shall survive for a period
of eighteen (18) months following the Closing.
13. INDEMNIFICATION.
(a) Seller and the Shareholders shall, and hereby agree to,
indemnify and hold harmless, the Buyer at all times from and
after the Closing date against and in respect to any damages,
as hereinafter defined. Damages, as used herein, shall include
any claims, actions, demands, losses, costs, reasonable
expenses, liabilities (joint or several), penalties, and
damages, including reasonable counsel fees incurred in
investigation or in attempting to avoid the same or oppose the
imposition thereof, resulting to Buyer from (i) any material
inaccuracy of a representation made by the Seller or the
Shareholders in this Agreement or the Exhibits or Schedules
attached hereto; (ii) a material breach of any of the
warranties made by the Seller or the Shareholders in this
Agreement or the Exhibits hereto; (iii) breach or default in
the performance by Seller or the Shareholders of any of the
covenants to be performed by either of them hereunder; and
(iv) any non-assumed debts,
38
<PAGE>
liabilities, or obligations of the Seller, whether accrued,
absolute, contingent, or otherwise, due or to become due;
provided, however, that Seller and the Shareholders shall be
obligated to indemnify Buyer for damages only to the extent
damages exceed Fifty Two Thousand Dollars ($52,000.00) in the
aggregate.
(b) Buyer shall, and hereby agrees to, indemnify and hold
harmless, the Seller and Shareholders at all times from and
after the Closing date against and in respect to any damages
resulting to Seller or Shareholders from (i) any material
inaccuracy of a representation made by Buyer in this
Agreement; (ii) a material breach of any of the warranties
made by Buyer in this Agreement; (iii) breach or default in
the performance by Buyer of any of the covenants to be
performed by Buyer hereunder; (iv) any assumed debts,
liabilities, or obligations of the Seller; or (v) lawsuits
mistakenly brought against Seller due to Buyer's business
operations under the name "Acor" after the Closing, as well as
the Buyer's temporary use of the provider reimbursement
numbers of Seller; provided, however, that Buyer shall be
obligated to
39
<PAGE>
indemnify the Seller and Shareholders for damages only to the
extent damages exceed Fifty Two Thousand Dollars ($52,000.00)
in the aggregate, except only that there shall be no such
limitation with respect to damages relating to liabilities of
Seller assumed by Buyer as set forth on Schedule 2.1 hereto,
nor any limitation relating to liabilities incurred by Seller
due to lawsuits mistakenly brought against Seller due to
Buyer's business operations under the name "Acor" after the
Closing or due to the Buyer's temporary use of the provider
reimbursement numbers of Seller.
(c) The party seeking indemnification ("Indemnitee") Buyer agrees
that, promptly on receipt by it of notice of any demand,
assertion, claim or action, or proceeding, judicial or
otherwise, with respect to any matter as to which the other
party (the "Indemnitor") has agreed to indemnify the
Indemnitee under the provisions of this Agreement, the
Indemnitee will give prompt notice thereof in writing to the
Indemnitor, together, in each instance, with a statement of
such information respecting such demand, assertion, claim,
action or proceeding as the Indemnitee shall then have.
40
<PAGE>
The Indemnitor reserves the right to contest and defend by all
appropriate legal or other proceedings any demand, assertion,
claim, action or proceeding with respect to which the
Indemnitor has been called upon to indemnify the Indemnitee
under the provisions of this Agreement; provided, however,
that:
(1) Notice of intention to so contest shall be
delivered to the Indemnitee within thirty (30)
calendar days from the date of receipt by the
Indemnitor of notice of the assertion of such
demand, assertion, claim, action, or proceeding;
(2) The Indemnitor shall pay all costs and expenses of
such contest, including all attorneys' and
accountants' fees and the cost of any bond
required by law to be posted in connection with
such contest; and
(3) Such contest shall be conducted by reputable
attorneys employed by the Indemnitor with the
written approval of the Indemnitee, which approval
shall not be unreasonably withheld,
41
<PAGE>
at the Indemnitor's cost and expense, but the
Indemnitee shall have the right to participate in
such proceedings and to be represented by
attorneys of its own choosing, at its own cost and
expense.
If after such opportunity, the Indemnitee does not elect to participate,
or does not participate, in any such proceedings, the Indemnitee shall be
bound by the results obtained by the Indemnitor, including without limitation
any out-of-court settlement or compromise.
If the Indemnitor elects to contest any demand, assertion, or claim, it
shall not be obligated to make any payments to the Indemnitee with respect
thereto until the legal remedies available to the Indemnitor with respect to
such demand, assertion, or claim, shall have been exhausted.
If requested by the Indemnitor, the Indemnitee agrees to cooperate with
the Indemnitor in contesting any demand, assertion, or claim that the
Indemnitor elects to contest, or, if appropriate, in the making of any
counterclaim against the person asserting such demand, assertion, or claim or
any cross-complaint against any person; but the Indemnitor will reimburse the
Indemnitee for any expenses incurred by the Indemnitee in so
42
<PAGE>
cooperating with the Indemnitor. If such counterclaim or cross-complaint
results in receipt by the Indemnitor of amounts in excess of the amount that
is subject to any such demand, assertion, or claim, such excess shall first be
applied to the payment of the reasonable costs and expenses of the Indemnitee
incurred in connection with such contest, counterclaim, or cross-complaint,
and the balance shall be retained by the Indemnitor.
14. RISK OF LOSS. Seller assumes all risk of destruction, loss, or damage
due to fire or other casualty up to the date of Closing. On said destruction,
loss, or damage due to fire or other casualty of substantially all of the
assets listed in Schedule 1.1 hereto, Buyer shall have the option to terminate
this Agreement and all rights of Buyer, Seller and the Shareholders shall
terminate. The Buyer shall notify Seller within seven (7) days after receiving
written notice of said destruction, loss, or damage due to fire or other
casualty, of its decision to terminate this Agreement. If Buyer does not
timely notify Seller of termination, this Agreement shall remain in full force
and effect; provided, however, that the Purchase Price shall be adjusted at
the Closing to reflect such destruction, loss, or damage, and if Buyer and
Seller are unable to agree on the amount of such adjustment, the dispute shall
be determined by an independent appraiser and such determination shall be
binding on Buyer, Seller and the Shareholders. If the Buyer, Seller or the
Shareholders
43
<PAGE>
are dissatisfied with such determination, then such dissatisfied party may
refuse to proceed with the Closing, in which event this Agreement shall
terminate without any further liability hereunder to all such parties.
15. BROKERAGE. The Seller and the Shareholders agree to indemnify the
Buyer and hold it harmless from and against any and all claims for any
broker's or finder's fee or commission arising out of or based on any act of
the Seller or the Shareholders. The Buyer agrees to indemnify the Seller and
the Shareholders and hold them harmless from and against any and all claims
for any broker's or finder's fee or commission arising out of or based on any
act of the Buyer.
16. LICENSE. For a period of six (6) months immediately following the
Closing, the Seller and Shareholders each and all hereby grant to Buyer an
irrevocable, non-exclusive license to use the name "Acor" solely in connection
with retail sales at the Locations. The Seller and Shareholders further agree
that Buyer may request an extension of the time for the Buyer's license to use
the name "Acor", which request may be approved solely by Jeff Alaimo on behalf
of Seller and Shareholders and which approval by Jeff Alaimo shall not be
unreasonably withheld, conditioned or delayed nor subject to the receipt any
remuneration whatsoever. Buyer shall not assign or otherwise sublicense the
name "Acor."
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<PAGE>
17. WAIVERS AND NOTICES. Any failure by any party to this Agreement
to comply with any of its obligations, agreements or covenants hereunder may
be waived by the Seller or the Shareholders in the case of a default by the
Buyer, and by the Buyer in the case of a default by the Seller or the
Shareholders. All waivers under this Agreement and all notices, consents,
demands, requests, approvals and other communications which are required or
may be given hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or mailed certified first class mail,
postage prepaid:
(a) If to Seller or the Shareholders:
Jeff Alaimo
18530 South Miles Parkway
Cleveland, Ohio 44128
with a copy to:
F. Howard Mandel, Esq.
Thompson, Hine & Flory
3900 Society Center
127 Public Square
Cleveland, Ohio 44114
(b) If to the Buyer:
Hanger Prosthetics & Orthotics, Inc.
7700 Old Georgetown Road (Second Floor)
Bethesda, Maryland 20814
Attention: Richard A. Stein, Secretary
with a copy to:
Jay W. Freedman, Esq.
Freedman, Levy, Kroll & Simonds
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
45
<PAGE>
or to such other person or persons at such address as may be designated by
written notice to the other parties hereunder.
18. ASSIGNMENT. Buyer may assign all or any part of its obligation
hereunder to Hanger Orthopedic Group, Inc. or any corporation controlled by or
controlling Hanger Orthopedic Group, Inc.; provided that such assignment shall
not release, revoke, amend or modify any of the obligations of Buyer under
this Agreement or any other instrument to be made by Buyer at Closing.
19. PRESS RELEASE. Seller, the Shareholders and Buyer acknowledge that,
as a public company, Hanger Orthopedic Group, Inc. will be required to issue a
press release or other public communication, including appropriate filings
with the Securities and Exchange Commission ("SEC"), concerning this
transaction. Prior to the Closing, the Buyer agrees to give the Seller and
Shareholders notice and an opportunity to consult with the Buyer with respect
to any press release or other public communication that the Buyer or Hanger
Orthopedic Group, Inc. is required to issue with respect to the acquisition
transaction underlying this Agreement.
20. USE OF SELLER'S FINANCIAL INFORMATION. The Seller acknowledges that
upon execution of this Agreement, the financial statements relating to its
operations for the past three fiscal
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<PAGE>
years will be required to be included in certain filings with the SEC. Seller
and the Shareholders hereby consent to the use of said financial statements in
said filings.
21. COSTS AND EXPENSES. The Buyer, the Seller and the Shareholders shall
pay all of their own respective costs and expenses including, without
limitation, legal, accounting and professional fees incurred or to be incurred
by such party in negotiating and preparing this Agreement and in closing and
carrying out the transaction contemplated by this Agreement.
22. MISCELLANEOUS. This Agreement can be amended only by a written
instrument approved by the Seller, the Shareholders and the Buyer and signed
by the duly authorized officers of all parties. This Agreement, together with
the other writings delivered in connection herewith, including the schedules,
which are an integral part of this Agreement, embodies the entire agreement
and understanding of the parties hereto and supersedes any prior agreement and
understanding between the parties. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
23. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware.
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24. ALLOCATION FILINGS. Buyer and Seller agree to mutually determine the
allocation of the Purchase Price, file IRS Form 8594 in accordance with such
mutual agreement, and not take any position with the IRS in contravention of
such mutual agreement. Buyer and Seller agree to annually file amended IRS
Forms 8594 following the calculation of the payments in Paragraph 4(c) herein,
with any addition to the Purchase Price therefrom being allocated to goodwill.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SELLER:
Attest: ACOR ORTHOPAEDIC INC.
____________________________ By: ____________________________
Secretary Jeff Alaimo, Vice President
SHAREHOLDERS:
____________________________ _________________________________
Name: Jeff Alaimo, Individually
Witness
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____________________________ _________________________________
Name: Mead Alaimo, Individually
Witness
____________________________ _________________________________
Name: Greg Alaimo, Individually
Witness
BUYER:
Attest (Seal): HANGER PROSTHETICS
& ORTHOTICS, INC.
____________________________ By: ____________________________
Richard A. Stein John D. McNeill
Secretary President
GUARANTY
Hanger Orthopedic Group, Inc. hereby guarantees the punctual and full
payment when due of all obligations of Buyer in connection with the Agreement,
all Exhibits thereto and all other documents and agreements executed in
connection with the Agreement, together with the performance and observance by
Buyer of all of Buyer's obligations and covenants thereunder.
Attest (Seal): HANGER ORTHOPEDIC GROUP, INC.
____________________________ By: ____________________________
Richard A. Stein Ivan R. Sabel
Secretary President
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