exv10w2





Exhibit 10.2




ASSET PURCHASE AGREEMENT




between




SOUTHERN PLAINS ASSOCIATES II, LLC




and




SOUTHERN PLAINS MEDICAL CENTER, INC.




June 30, 2011



 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	 	PAGE





EXHIBITS




	 	 	 
	Exhibit A

	 	Promissory Note
	 
	 	 
	Exhibit B

	 	Bill of Sale






 


 









 







ASSET PURCHASE AGREEMENT




This Asset Purchase Agreement (“Agreement”) is made and entered into as of June 30, 2011, by
and between Southern Plains Associates II, LLC, an Oklahoma limited liability company (“Buyer”),
and Southern Plains Medical Center, Inc., an Oklahoma corporation (“Seller”), with reference to the
following facts:



RECITALS




A. Seller presently owns and operates a multi-specialty medical clinic (the “Clinic”) in
Chickasha, Oklahoma. The medical practice conducted at the Clinic is referred to herein as the
“Practice.”



B. Concurrently with the execution of this Agreement, a Stock Purchase Agreement dated as of
the date of this Agreement between Buyer and Rural Hospital Acquisition, L.L.C. (the “Stock
Purchase Agreement”) and a Real Estate Purchase Agreement dated as of the date of this Agreement
between Buyer and Southern Plains Associates, L.L.C. (the “Real Estate Purchase Agreement”) will be
executed.



C. Seller desires to sell to Buyer, and Buyer desires to purchase, certain assets of the
Practice, on the terms and conditions hereinafter set forth.



THEREFORE, in consideration of the mutual representations, warranties and covenants and
subject to the terms and conditions herein contained, the parties hereto agree as follows:



A G R E E M E N T




ARTICLE 1.0

PURCHASE AND SALE OF ASSETS




1.1 Purchased Assets. Seller shall sell, convey, transfer, assign and deliver to
Buyer at the Closing (as defined below), and Buyer shall purchase at the Closing, free and clear of
all liens, mortgages, pledges, encumbrances and charges of every kind, on the terms and subject to
the conditions set forth in this Agreement, all of Seller’s medical records relating to current and
former patients of the Practice (collectively, the “Purchased Assets”).



1.2 The Purchase Price. The consideration for the Purchased Assets (the “Purchase
Price”) shall be $295,000 [a sum that, when added to the purchase price of the real estate, equals
$4,850,000]. At the Closing, Buyer shall pay the Purchase Price by the delivery to Seller of a
promissory note in the amount of the Purchase Price and in the form of Exhibit A (the
“Note”).



1.3 No Assumed Liabilities. Buyer shall not assume any obligation or liability under
any contract, lease, commitment or other obligation of Seller.


 


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1.4 Closing. The parties shall conduct the closing of the transactions provided for
herein (the “Closing”) at the offices of McAfee & Taft, 10th Floor, Two Leadership
Square, 211 North Robinson, Oklahoma City, Oklahoma 73102, contemporaneously with the closings of
the
transactions contemplated by the Stock Purchase Agreement and the Real Estate Purchase
Agreement, but no later than July 15, 2011 (the “Closing Date”). The effective date of all
transactions contemplated by this Agreement, the Stock Purchase Agreement and the Real Estate
Purchase Agreement shall be June 30, 2011 (the “Effective Date”). At or before the closing Seller
and Buyer shall each take such actions and deliver the duly executed documents necessary or
appropriate to close the sale as described in this Agreement. All documents shall be reasonably
satisfactory to the legal counsel for the parties.



ARTICLE 2.0

REPRESENTATIONS AND WARRANTIES OF SELLER

CONCERNING THE TRANSACTION




In order to induce Buyer to enter into this Agreement and to consummate the transactions
contemplated hereunder, Seller makes the following representations and warranties to Buyer:



2.1 Power and Authority; Due Authorization. Seller is a corporation duly organized
and legally existing in good standing under the laws of the State of Oklahoma, with full power and
authority to enter into this Agreement and to carry out the transactions and agreements
contemplated hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by all necessary
actions of Seller and Seller’s shareholder, and no further action is necessary to authorize such
transactions or to make this Agreement and such other documents and agreements valid and binding
upon Seller in accordance with their respective terms.



2.2 Binding Obligation; Noncontravention. This Agreement has been duly executed and
delivered by Seller and is a valid and binding obligation of Seller, enforceable in accordance with
its terms. Neither the execution and delivery of this Agreement by Seller nor the consummation of
the transactions contemplated hereby will: (a) conflict with or violate any provision of the
certificate of incorporation, bylaws or other constituent document of Seller or agreement among
Seller’s owners, or of any law, ordinance or regulation or any decree or order of any court or
administrative or other governmental body which is either applicable to, binding upon or
enforceable against Seller; or (b) result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify or cancel or
require any notice under, any mortgage, contract, agreement, indenture, will, trust or other
instrument which is either binding upon or enforceable against Seller or the assets and properties
of Seller, which conflict, violation, breach or default could have a material adverse effect upon
(i) the Purchased Assets or Buyer’s rights thereto or (ii) the business, financial condition,
prospects or results of operations of the Practice (a “Seller Material Adverse Effect”). No permit,
consent, approval or authorization of, or declaration to or filing with, any regulatory or other
government authority is required in connection with the execution and delivery of this Agreement by
Seller and the consummation by it of the transactions contemplated hereby, the failure to obtain
which could have a Seller Material Adverse Effect.



2.3 Investment Bankers’ and Brokers’ Fees. As a result of any act or failure to act
by Seller or any of its officers, owners or other affiliates, no person or entity has, or as a
result of the transactions contemplated hereby will have, any right, interest or claim against or
upon Buyer or
any of its affiliates for any commission, fee or other compensation as a finder, broker or in
any similar capacity.


 


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ARTICLE 3.0

REPRESENTATIONS AND WARRANTIES OF BUYER




In order to induce Seller to enter into this Agreement and to consummate the transactions
contemplated hereby, Buyer makes the following representations and warranties to Seller:



3.1 Power and Authority; Due Authorization. Buyer is a limited liability company duly
organized and legally existing in good standing under the laws of the State of Oklahoma, with full
power and authority to enter into this Agreement and to carry out the transactions and agreements
contemplated hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby shall have been duly authorized by all
necessary action of Buyer and its members, and no further action will be necessary to authorize
such transactions or to make this Agreement and such other documents and agreements valid and
binding upon Buyer in accordance with their respective terms.



3.2 Binding Obligation; Noncontravention. This Agreement has been duly executed and
delivered by Buyer and is a valid and binding obligation of Buyer, enforceable in accordance with
its terms. Neither the execution and delivery of this Agreement by Buyer nor the consummation of
the transactions contemplated hereby will: (a) conflict with or violate any provision of the
articles of organization or operating agreement of Buyer or of any law, ordinance, regulation or
decree or order of any court or administrative or other governmental body which is either
applicable to, binding upon or enforceable against Buyer; or (b) result in a breach of, constitute
a default under, result in the acceleration of, create in any party the right to accelerate,
terminate, modify or cancel, any mortgage, contract, agreement, indenture or other instrument which
is either binding upon or enforceable against Buyer, which conflict, violation, breach or default
could have a material adverse effect upon the business, financial condition, prospects or results
of operations of Buyer (a “Buyer Material Adverse Effect”). No permit, consent, approval or
authorization of, or declaration to or filing with, any regulatory or other government authority is
required in connection with the execution and delivery of this Agreement by Buyer and the
consummation of the transactions contemplated hereby, the failure to obtain which could have a
Buyer Material Adverse Effect.



3.3 Investment Bankers’ and Brokers’ Fees. As a result of any act or failure to act
by Buyer or any of its affiliates or any of their respective officers or owners, no person, firm or
corporation has, or as a result of the transactions contemplated hereby will have, any right,
interest or valid claim upon Seller or any of Seller’s owners for any commission, fee or other
compensation as a finder, broker or in any similar capacity.


 


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ARTICLE 4.0

REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASED ASSETS




In order to induce Buyer to enter into this Agreement and to consummate the transactions
contemplated hereunder, Seller makes the following additional representations and warranties to
Buyer:



4.1 Good Title to and Condition of the Purchased Assets. Seller has good title to all
of the Purchased Assets free and clear of all liens, mortgages, pledges, security interests,
encumbrances or charges of every kind, nature and description whatsoever. The Purchased Assets are
free of defects and are in good operating condition and repair, ordinary wear and tear excepted.
Seller has full and unrestricted legal right, power and authority to sell, assign and transfer the
Purchased Assets pursuant hereto without obtaining the consent or approval of any other person or
entity, and the delivery of the Bill of Sale to Buyer pursuant to Section 7.5 will transfer valid
title thereto, free and clear of liens, encumbrances, claims and restrictions of every kind.



4.2 Licenses and Permits of Seller. Seller possesses all licenses and other required
governmental or official approvals, permits or authorizations for Seller’s ownership and use of the
Purchased Assets, the failure to possess which would have a Seller Material Adverse Effect.



4.3 Accuracy of Information Furnished by Seller. No representation, statement or
information made or furnished by Seller to Buyer, including those contained in this Agreement and
the various Schedules attached hereto and the other information and statements referred to herein
and previously furnished by Seller to Buyer pursuant hereto, contains or shall contain any untrue
statement of a material fact or omits or shall omit any material fact that is necessary to make the
representations, statements or information made or furnished by Seller not misleading.



ARTICLE 5.0

ADDITIONAL COVENANTS OF SELLER




5.1 Efforts to Satisfy Closing Conditions. Seller will use commercially reasonable
efforts to cause to be satisfied, as soon as practicable and prior to the Closing Date, all of the
conditions set forth in Articles 7.0 and 8.0 to the obligations of Buyer and Seller to complete the
sale of the Purchased Assets pursuant to this Agreement.



5.2 Maintenance of Purchased Assets Pending the Closing. From and after the execution
and delivery of this Agreement and until the Closing Date, except as provided herein or with the
prior written consent of Buyer, Seller will maintain all of the Purchased Assets in customary
repair, order and condition, reasonable wear and tear excepted, and maintain service agreements and
insurance of such types and in such amounts upon all of the Purchased Assets as are in effect on
the date of this Agreement; and


 


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5.3 Due Diligence. From the date hereof until Closing or the termination of this
Agreement as set forth in Section 10.3, Seller shall permit Buyer to conduct physical inspections
of
the Purchased Assets at such time or times as will not unreasonably interfere with customary
delivery of care to patients.



5.4 Notice of Material Developments. Seller will give prompt written notice to Buyer
of any material development affecting the Purchased Assets, including without limitation any
development which results in the inaccuracy of any of the representations and warranties of Seller
made herein.



5.5 No Disclosure. Without the prior written consent of Buyer, Seller will not, prior
to the Closing Date, disclose the existence of any term or condition of this Agreement to any
person or entity, except that such disclosure may be made (a) to any of Seller’s owners or to any
person in a business relationship with Seller or Seller’s owners to whom such disclosure is
necessary in order to satisfy any of the conditions to the consummation of the transactions
provided for in this Agreement (including Seller’s legal and financial advisors), and (b) to the
extent Seller believes in good faith that such disclosure is required by law (in which case Seller
will consult with Buyer prior to making such disclosure).



5.6 No-Shop Clause. From and after the date of the execution and delivery of this
Agreement by Seller until the earlier of Closing or the termination of this Agreement, Seller will
not, without the prior written consent of Buyer (which may be withheld at Buyer’s sole discretion),
(a) offer for sale the Purchased Assets (or any material portion thereof) or any ownership interest
in Seller, (b) solicit offers to buy all or any material portion of the Purchased Assets or any
ownership interest in Seller, (c) hold discussions with any party (other than Buyer or its
affiliate) looking toward such an offer or solicitation or looking toward a merger or consolidation
of Seller or (d) enter into any letter of intent or agreement with any party (other than Buyer or
its affiliate) with respect to the sale or other disposition of the Purchased Assets (or any
material portion thereof) or any ownership interest in Seller or with respect to any merger,
consolidation or similar transaction involving Seller.



ARTICLE 6.0

ADDITIONAL COVENANTS OF BUYER




6.1 Efforts to Satisfy Closing Conditions. Buyer will use commercially reasonable
efforts to cause to be satisfied, as soon as practicable and prior to the Closing Date, all of the
conditions in this Agreement to the obligations of Seller and Buyer to complete the sale of the
Purchased Assets pursuant to this Agreement, including without limitation assisting Seller in
obtaining the consents required by Section 7.2.



6.2 No Disclosure. Without the prior written consent of Seller, Buyer will not, prior
to the Closing Date, disclose the existence of any term or condition of this Agreement to any
person or entity except that such disclosure may be made (a) to Buyer’s owners and prospective
owners, (b) to any person in a business relationship with Buyer or Buyer’s owners to whom such
disclosure is necessary in order to satisfy any of the conditions to the consummation of the
purchase of the Purchased Assets which are set forth in this Agreement (including Buyer’s legal and
financial advisors) and (c) to the extent Buyer believes in good faith that such disclosure is
required by law (in which case Buyer will consult with Seller prior to making such disclosure).


 


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ARTICLE 7.0

CONDITIONS TO THE OBLIGATION OF BUYER




The obligation of Buyer to purchase the Purchased Assets shall be subject to the fulfillment
at or prior to the Closing Date of each of the following conditions:



7.1 Accuracy of Representations and Warranties and Compliance with Obligations. The
representations and warranties of Seller contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date with the same force and effect as though made
at and as of the Closing Date. Seller shall have performed and complied with in all material
respects all of its obligations required by this Agreement to be performed or complied with at or
prior to the Closing Date. Seller shall have delivered to Buyer a certificate, dated as of the
Closing Date and signed by a duly authorized officer of Seller, certifying (a) that such
representations and warranties are true and correct in all material respects and that all such
obligations have been performed and complied with in all material respects and (b) the necessary
consent of Seller’s owners approving this Agreement and the transactions contemplated hereby has
been obtained. Seller shall also provide Buyer with any other evidence reasonably requested by
Buyer with respect to the authorization of this Agreement and the transactions contemplated hereby
by Seller.



7.2 Receipt of Necessary Consents and Governmental Permits. All necessary consents,
authorizations or approvals of third parties to each of the transactions contemplated hereby shall
have been obtained and shown by written evidence reasonably satisfactory to Buyer.



7.3 No Adverse Litigation. There shall not be pending or threatened any action or
proceeding by or before any court or other governmental body which shall seek to restrain, prohibit
or invalidate the sale of the Purchased Assets to Buyer or any other transaction contemplated
hereby, or which might affect the right of Buyer to own the Purchased Assets and which, in the
reasonable judgment of Buyer, makes it inadvisable to proceed with the purchase of the Purchased
Assets.



7.5 Bill of Sale. Seller shall have executed and delivered to Buyer a Bill of Sale
transferring title to the Purchased Assets to Buyer, which Bill of Sale shall be substantially in
the form attached hereto as Exhibit B.



7.6 Material Changes. The Purchased Assets shall have not suffered any change, loss
or damage since January 1, 2011, which materially and adversely affects or impairs the operations
or prospects of the Business.



7.7 Legal Matters. All actions, proceedings, instruments and documents required or
incidental to carrying out this Agreement and all other related legal matters shall have been
approved by counsel for Buyer, which approval shall not be unreasonably withheld.



7.8 Consummation of the Purchase of Other Assets. The transactions contemplated by (i) the
Real Estate Purchase Agreement and (ii) the Stock Purchase Agreement shall be consummated.


 


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ARTICLE 8.0

CONDITIONS TO OBLIGATION OF SELLER




The obligation of Seller to sell the Purchased Assets shall be subject to the fulfillment at
or prior to the Closing Date of each of the following conditions:



8.1 Accuracy of Representations and Warranties and Compliance with Obligations. The
representations and warranties of Buyer contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date with the same force and effect as though made
at and as of the Closing Date. Buyer shall have performed and complied with all of its obligations
required by this Agreement to be performed or complied with in all material respects at or prior to
the Closing Date. Buyer shall have delivered to Seller a certificate, dated as of the Closing Date
and signed by a duly authorized officer of Buyer, certifying that such representations and
warranties are true and correct and that all such obligations have been performed and complied with
and that Buyer is duly authorized to enter into this Agreement and the transactions contemplated
thereby.



8.2 No Adverse Litigation. There shall not be pending or threatened any action or
proceeding by or before any court or other governmental body which shall seek to restrain, prohibit
or invalidate the sale of the Purchased Assets to Buyer or any other transaction contemplated
hereby, and which, in the judgment of Seller, makes it inadvisable to proceed with the transactions
contemplated hereby.



8.3 Legal Matters. All actions, proceedings, instruments and documents required or
incidental to carrying out this Agreement and all other related legal matters shall have been
approved by counsel for Seller, which approval shall not be unreasonably withheld.




8.4 Execution of Note. Buyer shall have executed the Note in favor of Seller.



8.5 Consummation of the Purchase of Other Assets. The transactions contemplated by (i) the
Real Estate Purchase Agreement and (ii) the Stock Purchase Agreement shall be consummated.



ARTICLE 9.0

POST-CLOSING COVENANTS




9.1 Execution of Further Documents. From and after the Closing, upon the reasonable
request of Buyer, Seller shall perform such further acts and execute, acknowledge and deliver all
such further assignments, transfers, conveyances, powers of attorney and assurances as may be
reasonably required to convey and transfer to and vest in Buyer all right, title and interest in
the Purchased Assets, and as may be appropriate otherwise to carry out the transactions
contemplated by this Agreement.


 


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9.2 Tax and Medicare Effects. None of the parties (or any such party’s counsel or
accountants) has made or is making any representation to any other party (or to such party’s
counsel or accountants) concerning any of the tax or Medicare effects of the transactions provided
for in this Agreement, and each party hereto represents that each has obtained, or will obtain,
independent tax and Medicare advice with respect thereto and upon which it has and will solely
rely.



ARTICLE 10.0

MISCELLANEOUS




10.1 Amendment and Modification. The parties hereto may amend, modify and supplement
this Agreement in such manner as may be agreed upon by Buyer and Seller in writing.



10.2 Assignment. No party may assign its rights or obligations under this Agreement
prior to the Closing Date without the prior written consent of the other party.




10.3 Termination.



10.3.1 Anything to the contrary herein notwithstanding, this Agreement may be terminated and
the transactions contemplated hereby may be abandoned:



10.3.1.1 by the mutual written consent of Buyer and Seller at any time prior to the Closing
Date;



10.3.1.2 by either Buyer or Seller at any time prior to the Closing Date if there shall be a
pending or threatened action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit or invalidate the sale of the Purchased Assets to Buyer or any
other transaction contemplated hereby, or which might affect the right of Buyer to own the
Purchased Assets and which, in the judgment of Buyer or Seller (as applicable), makes it
inadvisable to proceed with the transactions contemplated by this Agreement;



10.3.1.3 by Buyer in the event of a material breach by Seller prior to Closing of any
provision of this Agreement, which breach is not remedied by Seller within 30 days after receipt of
notice thereof from Buyer;



10.3.1.4 by Seller in the event of a material breach by Buyer prior to Closing of any
provision of this Agreement, which breach is not remedied by Buyer within 30 days after receipt of
notice thereof from Seller; or



10.3.1.5 by either Buyer or Seller if, through no fault of or breach by the party that desires
to terminate this Agreement, the conditions precedent to the obligations of such party hereunder
have not been met or waived and the Closing has not taken place by January 1, 2011.


 


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If this Agreement is terminated pursuant to Section 10.3.1.1 or 10.3.1.5, no party shall have
any liability for any costs, expenses, loss of anticipated profit or any further obligation for
breach of warranty or otherwise to any other party to this Agreement. Any termination of this
Agreement pursuant to Sections 10.3.1.2, 10.3.1.3, or 10.3.1.4 shall be without prejudice to any
other rights or remedies of the respective parties.



10.3.2 The risk of any loss to the assets and properties of Seller and all liability with
respect to injury and damage occurring in connection therewith shall be the sole responsibility of
Seller until the Closing is consummated.



10.4 Binding Effect; Survival; Waiver, Etc. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors, assigns, heirs and
legal representatives. All of the terms, provisions, covenants, representations, warranties and
conditions of this Agreement shall survive the Closing only to the extent set forth herein and
shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right to enforce the same. No
waiver by any party of any condition, or of the breach of any term, provision, covenant,
representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one
or more instances, shall be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or of the breach of any other term,
provision, covenant, representation or warranty. This Agreement is for the sole benefit of the
undersigned parties hereto and is not for the benefit of any third party.



10.5 Entire Agreement. This Agreement and the Exhibits and Schedules attached hereto
contain the entire agreement and understanding of the parties hereto with respect to the purchase
of the Purchased Assets and the other transactions contemplated herein, and supersede all prior
verbal or written understandings, arrangements and agreements of the parties with respect to the
subject matter hereof agreement, but excluding any existing Confidentiality Agreement by and
between Buyer and Seller. Any reference herein to this Agreement shall be deemed to include the
Schedules and Exhibits attached hereto. The parties agree that (a) they have fully informed
themselves of the terms, contents, conditions and effects of this Agreement and have consulted
legal counsel of their choice in connection with this Agreement and (b) in entering into this
Agreement, they are not relying upon any representations, promises or statements not expressly
stated in this Agreement and hereby disclaim any and all reliance upon such representations,
promises and/or statements in executing this Agreement.



10.6 Headings. The descriptive headings in this Agreement are inserted for convenience
only and do not constitute a part of this Agreement or affect the meaning or interpretation of this
Agreement in any way.



10.7 Execution in Counterpart. Separate copies of this Agreement may be signed by the
parties hereto, with the same effect as though all of the parties had signed one copy of this
Agreement. Signatures received by facsimile or via other electronic transmission system shall be
accepted as original signatures.


 


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10.8 Notices. All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have been duly given
when received if delivered personally, delivered by Federal Express or other courier service, or
sent by facsimile or other electronic transmission system, as follows:




If to Seller:




First Physicians Capital Group, Inc.

9663 Santa Monica Blvd., #959

Beverly Hills, CA 90210

Attn: David Hirschhorn




Tel No.: (310) 860-2501

Fax No.: (310) 860-1854




with a copy to:




Duane Morris LLP

30 S. 17th St.

Philadelphia, PA 19103

Attn: C. Mitchell Goldman, Esq.




Tel No.: (215) 979-1000

Fax No.: (215) 689-2407




If to Buyer:




Foundation HealthCare Affiliates

14000 N. Portland

Oklahoma City, OK 73134

Attn: Robert M. Byers




Tel No.: (405) 608-1702

Fax No.: (405) 608-1802




with a copy to:




McAfee & Taft A Professional Corporation

211 N. Robinson Ave.

Two Leadership Square, 10th Floor

Attn: Elizabeth D Tyrrell, Esq.




Tel No.: (405) 235-9621

Fax No.: (405) 228-7417


 


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All notices, demands or requests by personal delivery shall be effective and deemed served upon
receipt thereof. All notices, demands and requests sent by mail shall be effective and deemed
served three days after being deposited in the United States mail. All notices, demands and
requests sent by overnight delivery service shall be effective and deemed served on the day after
being deposited with such overnight delivery service. All notices, demands and requests sent by
facsimile or via other electronic transmission system shall be effective and deemed served on the
date of the facsimile or other electronic transmission confirmation.



10.9 Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oklahoma. Buyer and Seller each hereby
submits to the jurisdiction of any state or federal court sitting in Oklahoma County, Oklahoma in
any action or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and agrees that all claims in respect of the action or proceeding may be heard
and determined in any such court. Each of Buyer and Seller waives any defense of inconvenient
forum to the maintenance of any action or proceeding brought in any of said courts. Any process
against the Buyer or Seller in, or in connection with, any proceeding arising out of or relating to
this Agreement or any of the transactions contemplated hereby may be served on them personally or
by certified mail at the address set forth in Section 10.8 with the same effect as though served on
them personally.



10.10 Interpretation of Agreement. The parties hereto acknowledge and agree that this
Agreement has been negotiated at arm’s length and between parties equally sophisticated and
knowledgeable in the matters dealt with in this Agreement. Accordingly, any rule of law or legal
decision that would require interpretation of any ambiguities in this Agreement against the party
that has drafted it is not applicable and is waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the intent of the parties as set forth in this
Agreement.



10.11 Severability. In the event that any one or more of the provisions of this
Agreement shall be held or otherwise found to be invalid, illegal or unenforceable, all other
provisions hereof shall be given effect separately there from and shall not be affected thereby.



10.12 Attorneys’ Fees; Waiver of Jury Trial. In any action at law or in equity to
enforce any of the provisions or rights under this Agreement, the unsuccessful party to such
litigation, as determined by the court in any final judgment or decree, shall pay the successful
party or parties all costs, expenses and reasonable attorneys’ fees incurred therein by the
successful party or parties (including without limitation such costs, expenses and fees on any
appeal or in connection with any bankruptcy proceeding), and if the successful party recovers
judgment in any such action or proceeding, the costs, expenses and attorneys’ fees shall be
included in and as part of such judgment. Each party hereto hereby irrevocably and unconditionally
waives trial by jury in connection with any action or proceeding instituted under or relating to
this Agreement, or any other document executed pursuant hereto, or in connection with any
counterclaim resulting from any such action or proceeding.


 


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10.13 Compliance. Each party shall comply with all laws, rules and regulations that
may be applicable to its respective activities and responsibilities under this Agreement. The
parties enter into this Agreement with the intent of conducting their relationship in full
compliance with applicable laws, including, but not limited to, the Medicare and Medicaid
Anti-Kickback Statute and the federal Stark Law. Neither party nor their affiliates will
intentionally conduct itself under the terms of this Agreement in a manner as to constitute a
violation of the Anti-Kickback Statute, the Stark Law or any other applicable laws. The Purchase
Price to be paid by Buyer to Seller for the purchase of the Purchased Assets hereunder has been
determined through good faith and arms-length bargaining and consistent with the fair market value
opinion provided by an independent valuation expert. No amount paid by Buyer to Seller hereunder
is intended to be a payment for referrals or other business and nothing contained in this Agreement
shall require (directly or indirectly, explicitly or implicitly) any party or its affiliates to
refer or direct any patients or other business to the other party or its affiliates. The parties
shall carry out this Agreement in accordance with the provisions of the Health Insurance
Portability and Accountability Act of 1996, and associated regulations promulgated thereunder
(“HIPAA”) and will work together cooperatively to ensure that any use and disclosure of protected
health information related to the transactions contemplated herein is in accordance with HIPAA and
other applicable law.



10.14 Time. If the last day of any time period falls on a Saturday, Sunday, or legal
holiday, then the duration of the time period shall be extended to the next succeeding day that is
not a Saturday, Sunday, or legal holiday. Time is of the essence of this Agreement.



[SIGNATURE PAGE TO FOLLOW]




 


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IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase Agreement to be duly
executed as of the day and year first above written.



	 	 	 	 	 
	BUYER:	 SOUTHERN PLAINS ASSOCIATES II, LLC

 	 
	 	By  	 	 
	 	 	Name  	 	 
	 	 	Title  	 	 
	 
	SELLER:	 SOUTHERN PLAINS MEDICAL CENTER, INC.

 	 
	 	By  	 	 
	 	 	Name  	 	 
	 	 	Title  	 	 



Signature Page to Asset Purchase Agreement




 


 









 







EXHIBIT A




PROMISSORY NOTE




(See Attached)



 


 









 







EXHIBIT B




BILL OF SALE




(See Attached)