1
EXHIBIT 10.22
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of April 12, 2000, to be effective as of 11:59 p.m. on March 31, 2000,
by and among Lancaster Orthopedic Group, P.C., a Pennsylvania professional
corporation ("Buyer"), the shareholders of Buyer who are signatories hereto
(collectively, the "Shareholders"), IOI Management Services of Pennsylvania,
Inc., a Pennsylvania corporation ("Seller), and Integrated Orthopaedics, Inc., a
Texas corporation ("Parent").
RECITALS
A. Seller is the owner of certain assets as identified in Section 1.1
of this Agreement.
B. Buyer desires to purchase such assets from Seller, and Seller is
willing to sell such assets to Buyer, in each case on the terms and subject to
the conditions contained in this Agreement.
C. Parent is the owner of all the issued and outstanding shares of
capital stock of Seller, and is entering into this Agreement as a condition to
the willingness of Buyer to enter into this Agreement.
D. The Shareholders are the owners, in the aggregate, of all the issued
and outstanding shares of capital stock of Buyer, and are entering into this
Agreement, strictly for the purposes described in Sections 4.2 and 4.3 hereof,
as a condition to the willingness of Seller to enter into this Agreement.
NOW, THEREFORE, for and in consideration of the premises and promises
herein contained, and for other good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties, intending to be legally bound hereby,
agree as follows:
ARTICLE I
THE TRANSACTION
1.1. Purchase and Sale of Assets. Subject to the terms and conditions
contained herein, Seller hereby sells, transfers, assigns and delivers to Buyer,
and Buyer hereby purchases from Seller, all right, title and interest in and to
the following assets (collectively, the "Assets"):
1
2
(a) the furniture, fixtures and equipment (excluding Seller's
video/telephone conferencing equipment) and supplies of Seller, including
without limitation those items listed on Exhibit "A" hereto;
(b) all outstanding accounts receivable of Seller, as
previously purchased by Seller from Buyer; and
(c) all rights and obligations of Seller, arising on or after
April 1, 2000, under the contracts listed on Exhibit "B" hereto (collectively,
the "Contracts").
1.2. Payment of Purchase Price. As payment in full for all the Assets,
Buyer is delivering to Seller, simultaneously with the execution and delivery of
this Agreement, a cash payment in the amount of Two Million Four Thousand Five
Hundred Nine Dollars ($2,004,509).
1.3. No Assumption of Liabilities. With the exception of the
obligations arising under the Contracts on or after April 1, 2000, Buyer is not
assuming, and shall not be liable for, any obligations, liabilities or debts of
Seller, known or unknown, absolute or contingent.
ARTICLE II
SELLER'S AND PARENT'S REPRESENTATIONS AND WARRANTIES
Seller and Parent, jointly and severally, hereby warrant and represent
to Buyer, as of the date of this Agreement, as follows:
2.1. Legal Authority. Seller is a business corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania. Seller has all necessary corporate power and authority to enter
into the transactions contemplated hereby.
2.2. Execution, Delivery and Performance of Agreement; Authority.
Seller is not in violation of its Articles of Incorporation or Bylaws, or of any
Contract or other agreement to which Seller is a party. The execution, delivery
and performance of this Agreement by Seller will not, with or without the giving
of notice or the passage of time, or both, (i) violate, conflict with, result in
a default, right to accelerate or loss of rights under, or result in the
creation of any "Lien" (as defined herein) pursuant to, any provision of
Seller's Articles of Incorporation or Bylaws or any agreement, contract, note,
mortgage, indenture, lease, instrument, permit,
2
3
concession, franchise or license to which Seller is a party or by which it or
its properties or assets may be bound or affected (except to the extent a
violation of a "Lease" (as such term is defined in Section 4.2 hereof) is caused
by the failure to obtain the consents to be obtained under Section 4.2 of this
Agreement), or, (ii) conflict with or result in any violation, in any material
respect, of any statute, law, rule, regulation, judgment, order, decree or
ordinance (collectively, "Law") applicable to Seller, its properties or assets.
Seller has the full power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby. All proceedings required to be
taken by Seller to authorize the execution, delivery and performance of this
Agreement and the agreements relating hereto have been properly taken. This
Agreement constitutes a valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms.
2.3. Ownership; Condition of Assets. Seller has, and is transferring to
Buyer pursuant to this Agreement, good and valid title to all the Assets, free
and clear of all security interests, liens, claims, pledges, agreements,
options, or other encumbrances of any nature whatsoever (collectively, "Liens"),
except for the Lien in favor of Copelco Capital, Inc. evidenced by the UCC-1
Financing Statement filed with the Secretary of the Commonwealth of Pennsylvania
on February 22, 1999 (Filing Number 29940451), and, if applicable, any related
filings in Lancaster County, Pennsylvania. The tangible Assets are in good
condition and repair, and have been maintained and serviced as necessary in the
normal course of business.
2.4. Consents. With the exception of consents to the assignment of the
rights and obligations of Seller under the "Leases" (as such term is defined in
Section 4.2 hereof), Seller has obtained in writing all consents by third
parties that are required for the consummation of the transactions contemplated
hereby, and has provided to Buyer copies of such executed consents.
2.5. No Regulatory Action. No action, consent or approval by, or filing
with, any federal, state, municipal, foreign or other court or governmental or
administrative body or agency, or any other regulatory body, is required in
connection with the execution and delivery by Seller of this Agreement or the
consummation by Seller of the transactions contemplated hereby.
2.6. No Claims. There is no claim, action, suit, proceeding,
arbitration, investigation or inquiry, of which Seller has notice or is
otherwise aware, before any federal,
3
4
state, municipal, foreign or other court or governmental or administrative body
or agency, any securities or commodities exchange, other regulatory body or any
private arbitration tribunal now pending or threatened against or relating to
Seller that would adversely affect the ability of Seller to consummate the
transactions contemplated by this Agreement.
2.7. Disclosure. No statement by Seller contained in this Agreement or
the Exhibits attached hereto contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made.
ARTICLE III
BUYER REPRESENTATIONS AND WARRANTIES
Buyer hereby warrants and represents to Seller, as of the date of this
Agreement, as follows:
3.1. Legal Authority. Buyer is a professional corporation duly
organized, validly existing and in good standing under the laws of the State of
Pennsylvania. Buyer has all necessary corporate power and authority to enter
into the transactions contemplated hereby.
3.2. Execution Delivery and Performance of Agreement; Authority. Buyer
is not in violation of its Articles of Incorporation or Bylaws, or of any
contract or other agreement to which Buyer is a party. The execution, delivery,
and performance of this Agreement by Buyer will not, with or without the giving
of notice or the passage of time, or both, (i) violate, conflict with, result in
a default, right to accelerate or loss of rights under or result in the creation
of any Lien pursuant to, any provision of Buyer's Articles of Incorporation or
Bylaws or any agreement, contract, note, mortgage, indenture, lease, instrument,
permit, concession, franchise or license to which Buyer is a party or by which
it or its properties or assets may be bound or affected, or (ii) conflict with
or result in any violation, in any material respect, of any Law applicable to
Buyer, its properties or assets. Buyer has the full power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby. All
proceedings required to be taken by Buyer to authorize the execution, delivery
and performance of this Agreement and the agreements relating hereto have been
properly take. This Agreement constitutes a valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms.
4
5
3.3. No Regulatory Action. No action, consent or approval by, or filing
with, any federal, state, municipal, foreign or other court or governmental or
administrative body or agency, or any other regulatory body is required in
connection with the execution and delivery by the Buyer of this Agreement or the
consummation by the Buyer of the transactions contemplated hereby.
3.4. No Claim. There is no claim, action, suit, proceeding,
arbitration, investigation or inquiry of which Buyer has notice or is otherwise
aware, before any federal, state. municipal, foreign or other court or
governmental or administrative body or agency, any securities or commodities
exchange, other regulatory body, or any private arbitration tribunal now
pending, or threatened against or relating to Buyer that would adversely affect
the ability of Buyer to consummate the transactions contemplated by this
Agreement.
3.5. Disclosure. No statement by Buyer contained in this Agreement or
the Exhibits attached hereto contains any untrue statement of a material fact or
omits to state material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances under which they
were made.
ARTICLE IV
OTHER COVENANTS AND AGREEMENTS
4.1. Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto shall use its best efforts to take or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws, rules and regulations to
consummate and make effective the transactions contemplated by this Agreement.
If at any time hereafter Seller shall be advised that any further deeds,
assignments or assurances in law or in any other things are necessary, desirable
or proper to vest, perfect or confirm in Buyer title to any of the Assets,
Seller agrees that it shall execute and deliver all such proper deeds,
assignments and assurances in law and do all things necessary, desirable or
proper to vest, perfect or confirm title to such Assets in Buyer and to
otherwise carry out the purpose of this Agreement.
4.2. Leases. The parties acknowledge that, notwithstanding anything to
the contrary contained herein, consents to the assignment of the rights and
obligations of Seller,
5
6
arising on or after April 1, 2000, under the following leases have not been
obtained as of the date hereof, but are expected to be obtained by Buyer at a
future date: (a) the capital lease, dated February 4, 1999, for imaging
equipment, between Copelco Capital, Inc., as lessor, and Seller, as lessee,
including without limitation all "Equipment Schedules" thereto (the "Copelco
Lease"); (b) the Lease Agreement, dated May 6, 1991 between Granite Properties,
as landlord, and Seller, as tenant, and any and all amendments thereto; (c) the
Office Sharing Agreement, dated July 1, 1995 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as
landlord, and Seller, as tenant, and any and all amendments thereto; and, (d)
the Lease, dated April 27, 1988 between Sugo Associates, as landlord, and
Seller, as tenant, and any and all amendments thereto. The leases described in
the immediately preceding sentence, together with the Sublease Agreement, dated
May 15, 1997 between Seller, as sublessor, and HealthSouth Holdings, Inc., as
sublessee, and any and all amendments thereto, are referred to collectively
herein as the "Leases". Buyer shall use its best efforts to obtain the
applicable consents required to the assignment of the Leases as described herein
as soon as possible after the date hereof; provided, however, that if one or
more of the lessors under the Leases are unwilling to agree to such an
assignment, the parties agree that they shall cooperate to cause Buyer to have
the sole economic benefit and the right to use and all other rights of Seller
with respect to the equipment and real estate that is the subject of the Leases
at all times on or after April 1, 2000. Buyer agrees that it shall be
responsible for all obligations and liabilities of Seller and Parent arising on
or after April 1, 2000 under each of the Leases. Buyer and the Shareholders,
jointly and severally, shall indemnify and hold harmless Seller and Parent of
and from all such obligations and liabilities of Seller or Parent arising on or
after April 1, 2000 under the Leases.
4.3. Sale of Assets. Buyer and the Shareholders, jointly and severally,
covenant and agree that, during the five (5) year period following the date
hereof, Buyer shall not enter into any transaction in which all or substantially
all the assets of Buyer are transferred, assigned or sold to any other person or
entity, unless the transferee, assignee or buyer in such transaction agrees in
writing to assume the obligations of Buyer under this Agreement.
6
7
ARTICLE V
SURVIVAL AND INDEMNIFICATION
5.1. Survival. All representations, warranties, covenants, and
agreements contained in this Agreement or in any document delivered pursuant
hereto shall be deemed to be material and to have been relied upon by the
applicable party hereto. All representations, warranties, covenants, and
agreements contained herein shall survive the Closing and be fully effective and
enforceable for a period of five (5) years following the date hereof. Any claim
for indemnification asserted in writing during such survival period shall
survive until resolved or judicially determined.
5.2. Seller's and Parent's Indemnification. Seller and Parent, jointly
and severally, shall indemnify, hold harmless and defend Buyer, and Buyer's
shareholders, officers, directors, representatives, subsidiaries, affiliates,
successors, assigns, heirs and devisees, from and against all damages, losses
(including court costs and reasonable attorneys' fees at all levels of trial and
through all levels of appeal and expenses and costs of investigation), suits,
actions, claims, deficiencies, liabilities or obligations (collectively,
"Losses") related to, caused by or arising from (i) any misrepresentation,
breach of warranty or failure to fulfill any covenant or agreement of Seller
contained herein or in any agreement or other document delivered pursuant
hereto; and (ii) any and all claims of third parties made based upon facts
alleged that, if true, would constitute such a misrepresentation, breach or
failure.
5.3. Buyer' Indemnification. Buyer shall indemnify, hold harmless and
defend Seller and Parent, and their respective shareholders, officers,
directors, representatives, subsidiaries, affiliates, successors, assigns, heirs
and devisees, from and against all Losses related to, caused by or arising from
(i) any misrepresentation, breach of warranty or failure to fulfill any covenant
or agreement of Buyer contained herein or in any agreement or other document
delivered pursuant hereto, and (ii) any and all claims of third parties made
based upon facts alleged that, if true, would constitute such a
misrepresentation, breach or failure.
5.4. Indemnification Procedure; Defense Against Asserted Claims. Any
party seeking indemnification (the "Indemnified Party") shall give written
notice to the indemnifying party or parties (the "Indemnifying Party") of the
facts and the circumstances giving rise to any such claim (the "Notice"). The
Indemnified Party shall not settle or compromise any claim by a
7
8
third party for which the Indemnified Party is entitled to indemnification
hereunder without the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld), unless legal action shall have been
instituted against the Indemnified Party and the Indemnifying Party shall not
have taken reasonable control of such suit within fifteen (15) days after
notification thereof as provided herein. In connection with any claim giving
rise to indemnification hereunder resulting from or arising out of any claim or
legal proceeding by a person other than the Indemnified Party, the Indemnifying
Party may, upon notice to the Indemnified Party, assume the defense of any such
claim or legal proceeding without prejudice to the right of the Indemnifying
Party thereafter to contest its obligation to indemnify the Indemnified Party in
respect to the claims asserted therein and, in such a case, the Indemnifying
Party shall select counsel (subject to the approval of the Indemnified Party,
which approval shall not be unreasonably withheld) to conduct the defense in
such claims and legal proceedings and at its sole cost and expense shall take
all steps necessary in the defense or settlement thereof. The Indemnifying Party
shall not consent to a settlement of, or the entry of any judgment arising from,
any claim or legal proceeding, without the prior written consent of the
Indemnified Party, unless the Indemnifying Party admits in writing its liability
to hold the Indemnified Party harmless from and against any loss, damages,
expenses and liabilities arising out of such settlement. The Indemnified Party
shall be entitled to participate in the defense of any such action with its own
counsel and at its own expense. If the Indemnifying Party does not assume the
defense of any such claim or litigation resulting therefrom in accordance with
the terms hereof, the Indemnified Party may defend such claim or litigation in
such a manner as it may deem appropriate, including settling such claim or
litigation, after giving notice of the same to the Indemnifying Party, on such
terms as the Indemnified Party may deem appropriate and after action by the
Indemnified Party seeking indemnification from the Indemnifying Party in
accordance with the provisions of this Section; in such case, the Indemnifying
Party shall not be entitled to question the manner in which the Indemnified
Party defended such claim or litigation or the amount or nature of any such
settlement. In the event of a claim by a third party, the Indemnified Party
shall cooperate with the Indemnifying Party in the defense of such action
(including making a personal contact with the third party if deemed beneficial)
and the relevant records of each party shall be made available on a timely
basis.
8
9
ARTICLE VI
GENERAL PROVISIONS
6.1. Attorneys' fees. In the event any adversarial legal action arises
between any of the parties as a result of this Agreement, the prevailing party
shall be entitled to recover from the other party its reasonable attorney's fees
and costs incurred at all pre-trial, trial and appellate proceedings,
6.2. Parties in Interest. This Agreement and all of the terms,
covenants and conditions herein shall bind and inure to the benefit of the
parties named herein and their respective permitted successors and assigns. No
party may assign its rights and/or duties hereunder without the prior written
consent of the other parties.
6.3. Entire Agreement and Modification. This Agreement and the Exhibits
attached hereto contain the entire understanding among the parties with respect
to the transactions contemplated hereby, and no representations, warranties or
agreements have been made or, if made, have been relied upon by any party except
those specifically referred to herein. This Agreement may be amended, modified
or supplemented only by written instrument signed by all of the parties hereto.
6.4. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal substantive laws of the Commonwealth of
Pennsylvania. Venue with respect to any legal action arising under or pursuant
to this Agreement shall be in Lancaster County, Pennsylvania.
6.5. Severability. If any provision of this Agreement is found to
violate any statute, regulation, rule, order or decree of any governmental
authority court, agency or exchange, such invalidity shall not be deemed to
affect any other provision hereof or the validity of the remainder of this
Agreement, and such invalid provision shall be deemed deleted from this
Agreement to the minimum extent necessary to cure such violation.
6.6. Rights Cumulative. All rights contained in this Agreement are
cumulative and are in addition to all other rights and remedies that are
otherwise available, pursuant to the terms of this Agreement or applicable law.
9
10
6.7. Notices. All notices and other communications under this Agreement
shall be given in writing or by overnight delivery service, charges prepaid, or
by registered or certified mail, return receipt requested, postage prepaid, or
hand delivered, personally addressed to the parties set forth below at the
stated addresses or at such other address as any party shall designate in a
notice to the other.
To Seller or Parent: Integrated Orthopaedics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
Senior Vice President/Chief Operating Officer
With a copy to: ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
Miami Center, 22nd Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
To Buyer: Lancaster Orthopedic Group, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
With a copy to: ▇▇▇▇▇▇▇ & ▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All notices shall be deemed effective when received, or if delivery is
refused, on the date of such refusal.
10
11
6.8. Waiver. A waiver of any breach or violation of any term, provision
or covenant contained herein shall not be deemed a continuing waiver, or a
waiver of any future or past breach or violation, or a waiver of any other term,
provision or covenant of this Agreement. All waivers must be in writing.
6.9. Confidentiality. Each of the parties hereto agrees to keep all
terms of this Agreement confidential, except as otherwise mutually agreed in
writing; except to the extent disclosure is required by applicable law or by
applicable regulatory filings; and, except with respect to communications the
undersigned has with: (a) its advisors, such as accountants or attorneys, to
assist in interpreting or enforcing the terms of this Agreement and the
documents and agreements executed pursuant to the terms of this Agreement, and
(b) third parties as necessary to carry out the terms of this Agreement as long
as the undersigned divulges only the minimal information necessary to carry out
the terms of this Agreement.
11
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
BUYER:
LANCASTER ORTHOPEDIC GROUP, P.C.
By:
--------------------------------------------
Print Name:
Print Title:
SELLER:
IOI MANAGEMENT SERVICES OF PENNSYLVANIA, INC.
By:
--------------------------------------------
Print Name:
Print Title:
PARENT:
INTEGRATED ORTHOPAEDICS, INC.
By:
--------------------------------------------
Print Name:
Print Title:
12
13
SHAREHOLDERS:
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
------------------------------
J. ▇▇▇▇ ▇▇▇▇, M.D.
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
------------------------------
I. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
13
14
EXHIBIT "A"
SELLER'S FURNITURE, FIXTURES, EQUIPMENT AND SUPPLIES
14
15
EXHIBIT "B"
CONTRACTS
Capital Lease, dated February 4, 1999, for imaging equipment, between Copelco
Capital, Inc., as lessor, and Seller, as lessee
Lease Agreement, dated May 6, 1991 between Granite Properties, as landlord, and
Seller, as tenant
Office Sharing Agreement, dated July 1, 1995 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as
landlord, and Seller, as tenant
Lease, dated April 27, 1988 between Sugo Associates, as landlord, and Seller, as
tenant
Sublease Agreement, dated May 15, 1997 between Seller, as sublessor, and
HealthSouth Holdings, Inc., as sublessee
15