ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into as of November 22, 1996 (the
"Signature Date"), effective as of November 1, 1996, by and between BONE, MUSCLE
AND JOINT, INC., a Delaware corporation (the "Buyer"), and SOUTHERN CALIFORNIA
ORTHOPEDIC INSTITUTE MEDICAL GROUP, a California general partnership (the
"Seller").
A. The Seller is engaged in the business (the "Subject Business") of
providing orthopedic medical and surgical services and related medical and
ancillary services to patients.
B. The Buyer is engaged in the business of providing management,
administrative, financial, marketing, information technology, and related
services to professional medical organizations.
C. Concurrently herewith, the Seller and the Buyer are entering into a
Management Services Agreement (the "Management Services Agreement"), pursuant to
which the Buyer will furnish to the Seller management, administrative, and
related services.
D. The Seller desires to sell, transfer, convey and assign to the Buyer and
the Buyer desires to purchase from the Seller, certain of the assets,
properties, interests in properties and rights of the Seller used in the Subject
Business upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereby agree as follows:
1. Transfer of Purchased Assets, Assumption of Liabilities and Related
Matters.
1.1 Transfer of Assets. On the terms and subject to the conditions of
this Agreement, at the Closing (as hereinafter defined), the Seller shall sell,
transfer, convey and assign to the Buyer, and the Buyer shall purchase, assume,
and accept from the Seller, the
following assets, properties, interests in properties and rights of the Seller
(the "Purchased Assets"), as the same shall exist immediately prior to the
Closing, free and clear of all Claims (as defined below) (except Permitted Liens
(as defined below)):
(a) the medical equipment owned by the Seller and listed on
Schedule 1.1(a);
(b) the furniture, furnishings, trade fixtures, and office
equipment owned by the Seller and listed on Schedule 1.1(a);
(c) the Seller's rights and interests under the equipment leases
identified on Schedule 1.1(c), subject to the Buyer's assumption of the
obligations accruing thereunder as provided in Section 1.3;
(d) the supplies described on Schedule 1.1(d);
(e) the accounts receivable described on Schedule 1.1(e) (the
"Accounts Receivable");
(f) the Seller's rights and interests under the office leases
identified in Schedule 1.1(f), subject to the Buyer's assumption of the
obligations accruing thereunder as provided in Section 1.3;
(g) the deposits identified on Schedule 1.1(g); and
(h) any additional items identified on Schedule 1.1(h).
1.2 Assets Not Being Transferred. All assets, properties, interests in
properties, and rights of the Seller not expressly identified in Section 1.1 or
the schedules referenced therein (the "Excluded Assets") are expressly excluded
from the assets of the Seller being sold, assigned, or otherwise transferred to
the Buyer. Without limiting the generality of the foregoing, the initial
contributions made by the Seller (and/or by any of the physicians who are
members of the medical group operated by the Seller) to Cooperative of American
Physicians, Inc./Mutual Protection Trust in respect of professional liability
coverage are Excluded Assets, and any refunds in respect of such contributions
shall be the property of the Seller (and/or of such physicians).
1.3 Liabilities Being Assumed. Except as otherwise provided herein and
subject to the terms and conditions of this Agreement, simultaneously with the
sale, transfer, conveyance and assignment to the Buyer of the Purchased Assets,
the Buyer shall assume, and hereby agrees to pay when due, those liabilities
accruing after the Closing Date under the equipment leases identified in
Schedule 1.1(c) and the office leases identified in Schedule 1.1(f) (the
"Assumed Obligations").
1.4 Liabilities Not Being Assumed. The Buyer is not assuming any
liabilities or obligations of the Seller (fixed or contingent, known or unknown,
matured or unmatured) whatsoever other than the Assumed Obligations. For
convenience of reference, all liabilities and obligations of the Seller not
being assumed by the Buyer are collectively referred to as the "Excluded
Obligations."
1.5 Instruments of Conveyance and Transfer, Etc. At the Closing, the
Seller shall deliver (or cause to be delivered) to the Buyer such deeds, bills
of sale, endorsements, assignments and other good and sufficient instruments of
sale, transfer, conveyance and assignment as shall be necessary to sell,
transfer, convey and assign to the Buyer, in accordance with the terms hereof,
title to the Purchased Assets, free and clear of all Claims (except Permitted
Liens), including, without limitation, the delivery of a ▇▇▇▇ of Sale (the "▇▇▇▇
of Sale") substantially in the form of Exhibit A and the delivery of an
Assignment and Assumption Agreement (the "Assignment and Assumption Agreement")
substantially in the form of Exhibit B attached hereto. Simultaneously
therewith, the Seller shall take all steps as may be reasonably required to put
the Buyer in possession and operating control of the Purchased Assets.
1.6 Right of Endorsement, Etc. Effective upon the Closing, the Seller
hereby constitutes and appoints the Buyer, its successors and assigns, the true
and lawful attorney-in-fact of the Seller with full power of substitution, in
the name of the Buyer, or the name of the Seller, on behalf of and for the
benefit of the Buyer, to collect all accounts receivable assigned to the Buyer
as provided herein, to endorse, without recourse, checks, notes and other
instruments received in payment of such accounts receivable in the name of the
Seller, and to institute and prosecute, in the name of the Seller or otherwise,
all proceedings which the Buyer may deem proper in order to assert or enforce
any claim, right or title of any kind in or to the Purchased Assets (other than
the Accounts Receivable), to defend and compromise any and all actions, suits or
proceedings in respect of any of the Purchased Assets (other than the Accounts
Receivable) and to do all such acts and things in relation thereto as the Buyer
may deem advisable. The foregoing powers are coupled with an interest and shall
be irrevocable by the Seller, directly or indirectly, whether by the dissolution
of the Seller or in any manner or for any reason.
1.7 Further Assurances. The Seller shall pay or cause to be paid to
the Buyer promptly any amounts which shall be received by the Seller after the
Closing which constitute Purchased Assets, including all amounts paid to the
Seller on account of the Accounts Receivable. The Seller shall, at any time and
from time to time after the Closing, upon the reasonable request of the Buyer,
execute, acknowledge, deliver and file, or cause to be done, executed,
acknowledged, delivered or filed, all such further acts, transfers, conveyances,
assignments or assurances as may reasonably be required for better selling,
transferring, conveying, assigning and assuring to the Buyer, or for aiding and
assisting in the collection of or reducing to possession by the Buyer, any of
the assets, properties, interests in properties or rights being purchased by the
Buyer hereunder. Any expenses incurred in connection with the foregoing shall be
borne equally by the Buyer and the Seller.
1.8 Assignment of Leases. Anything contained in this Agreement to the
contrary notwithstanding, this Agreement shall not constitute an agreement or
attempted agreement to assign any office lease or equipment lease if an
attempted assignment thereof, without the consent of any other party thereto,
would constitute a breach thereof or in any way affect the rights of the Buyer
or the Seller thereunder. The Seller shall use its best efforts, and the Buyer
shall cooperate with the Seller, to obtain the consent of any such third party
to the
assignment thereof to the Buyer. If such consent is not obtained, the Seller
shall cooperate with the Buyer in any arrangements reasonably necessary or
desirable to provide for the Buyer the benefits (together with the obligations
to perform) thereunder.
2. Purchase Price; Allocation.
2.1 Purchase Price; Payment. The purchase price (the "Purchase Price")
to be paid for the Purchased Assets shall consist of the following:
(a) the sum of Three Million Seven Hundred Six Thousand Eight
Hundred Ninety-Seven Dollars ($3,706,897) payable at the Closing to the Seller
in cash; and
(b) the sum of Two Million Two Hundred Twenty-Four Thousand
Dollars ($2,224,000), representing fifty percent (50%) of the A/R Amount (as
defined below), subject to adjustment and payable in accordance with Section
2.3.
2.2 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in a statement (the "Statement of
Allocation") reflecting the allocation set forth in Schedule 2.2 attached
hereto. The parties acknowledge that the total of the accounts receivable
amounts set forth in Schedule 2.2 (the "A/R Amount") represents the parties'
best estimate of the total collectible amount of the accounts receivable
assigned under this Agreement. The parties shall complete their respective tax
returns for the period which includes the Closing Date in a manner that is
consistent with the Statement of Allocation.
2.3 Accounts Receivable Payment. The portion of the Purchase Price
specified in Section 2.1(b) is subject to adjustment and shall be paid as
follows:
(a) Within fifteen (15) days after the earlier of (i) the date
which occurs one year after the Commencement Date hereunder or (ii) the date on
which an initial public offering of the Buyer's common stock pursuant to the
Securities Act of 1933 is consummated (the "Determination Date"), the Buyer
shall furnish to the Seller a statement setting forth the
amount of collections received by the Buyer in payment of the Accounts
Receivable as of the Determination Date (the "A/R Collections"), including
detail of write-offs of any of the Accounts Receivable, the remaining
outstanding balances of the Accounts Receivable, and any other detail relating
thereto as the Seller may reasonably request. The amount by which the A/R
Collections exceed the sum of $2,224,000 is hereinafter referred to as the "A/R
Balance." The Buyer shall deliver to the Seller a check in an amount equal to
the A/R Balance together with the statement referred to in this Section 2.3(a).
(b) The parties shall confer promptly after the Seller's receipt
of the notice and check described in Section 2.3(a) for the purpose of
determining the amount of collections then anticipated to be realized after the
Determination Date in respect of the then- outstanding Accounts Receivable. If
the parties agree on an amount that represents the amount of such collections
anticipated to be realized, the Buyer shall promptly pay such amount to the
Seller in full satisfaction of the Buyer's obligation to purchase the Accounts
Receivable hereunder. If the parties fail to so agree, the Buyer shall pay to
the Seller on a monthly basis, within fifteen (15) days after the end of each
month, commencing with the month next following the month in which the
Determination Date occurred, an amount equal to the actual amount of collections
received by the Buyer during the prior month in respect of any of the then-
outstanding Accounts Receivable, such payments to continue until the Accounts
Receivable have been collected in full or agreed by the parties to be written
off. It is the intention of the parties that an amount equal to any and all
payments received by the Buyer in respect of the Accounts Receivable be paid by
the Buyer to the Seller.
(c) All payments by patients and third party payors shall be
accounted for on a first-in-first-out basis unless any such payment is
identified as a payment in respect of a particular invoice or otherwise is
designated as payment of a particular invoice or for a particular service.
3. Representations and Warranties.
3.1 Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer, as of the Signature Date hereof, as
follows:
(a) Organization; Good Standing; Qualification and Power. The
Seller is a general partnership duly organized, validly existing and in good
standing under the laws of the State of California and has all requisite power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted and as proposed to be conducted, to enter into
this Agreement, the ▇▇▇▇ of Sale, and the Assignment and Assumption Agreement,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The Seller has delivered to the
Buyer a true and correct copy of its General Partnership Agreement, as in effect
on the date hereof.
(b) Authority. The execution, delivery and performance of this
Agreement, the ▇▇▇▇ of Sale, and the Assignment and Assumption Agreement and the
consummation of the transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary partnership action on the part of the
Seller. This Agreement, the ▇▇▇▇ of Sale, and the Assignment and Assumption
Agreement have been duly and validly executed and delivered by the Seller and
constitute legal, valid and binding obligations of the Seller enforceable in
accordance with their respective terms, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally. Neither the execution, delivery or
performance by the Seller of this Agreement, the ▇▇▇▇ of Sale, or the Assignment
and Assumption Agreement nor the consummation by the Seller of the transactions
contemplated hereby or thereby, nor compliance by the Seller with any provision
hereof or thereof will (i) conflict with or result in a breach of any provision
of the General Partnership Agreement of the Seller, (ii) cause a default (with
due notice, lapse of time or both), or give rise to any right of termination,
cancellation or acceleration, under any of the terms, conditions or provisions
of any note, bond, lease,
mortgage, indenture, license or other instrument, obligation or agreement to
which the Seller is a party or by which it or any of its respective properties
or assets may be bound or (iii) violate any law, statute, rule or regulation or
order, writ, judgment, injunction or decree of any court, administrative agency
or governmental body applicable to the Seller or any of its respective
properties or assets. No permit, authorization, consent or approval of or by, or
any notification of or filing with, any person (governmental or private) is
required in connection with the execution, delivery or performance by the Seller
of this Agreement or the consummation of the transactions contemplated hereby.
(c) Title to Assets, Properties, Interests in Properties and
Rights and Related Matters.
(i) The Seller has good and valid title to all of the
Purchased Assets, free and clear of all security interests, judgments, liens,
pledges, claims, charges, escrows, encumbrances, easements, options, rights of
first refusal, rights of first offer, mortgages, indentures, security agreements
or other agreements, arrangements, contracts, commitments, understandings or
obligations, whether written or oral and whether or not relating in any way to
credit or the borrowing of money (collectively, "Claims"), of any kind or
character, except for (i) those Claims set forth on Schedule 3.1(c) and (ii)
Permitted Liens.
(ii) There does not exist any condition which materially
interferes with the economic value or use (consistent with the Seller's past
practice) of any tangible personal property included in the Purchased Assets and
such property is in good operating condition and repair, reasonable wear and
tear excepted.
(iii) The Seller has the complete and unrestricted power and
the unqualified right to sell, transfer, convey and assign the Purchased Assets,
and this Agreement, the ▇▇▇▇ of Sale, and the Assignment and Assumption
Agreement are sufficient to sell, transfer, convey and assign to the Buyer all
right, title and interest of the Seller in and to the Purchased
Assets, free and clear of all Claims (other than Permitted Liens) and to vest in
the Buyer good and valid title thereto.
(iv) As used in this Agreement, "Permitted Liens" shall mean
(i) any lien for current taxes not yet due and payable, (ii) liens of carriers,
warehousemen, mechanics and materialmen created in the ordinary course of the
Subject Business for amounts not yet due and payable which do not materially
detract from the value or impair the use of any property or assets and (iii) in
the case of Purchased Assets, liens incurred in the ordinary course of the
Subject Business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and other types
of social security benefits.
(d) Litigation. Except as set forth on Schedule 3.1(d), there are
no (i) actions, suits, claims, investigations or legal or administrative or
arbitration proceedings pending or, to the best knowledge of the Seller,
threatened against the Seller, the Purchased Assets or the Subject Business,
whether at law or in equity, or before or by any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality or (ii) judgments, decrees, injunctions or orders of any court,
governmental department, commission, agency, instrumentality or arbitrator
against the Seller or affecting the Purchased Assets or the Subject Business.
The Seller has delivered to the Buyer all documents and correspondence relating
to matters referred to in said Schedule 3.1(d).
(e) Compliance; Governmental Authorizations. The Seller has
complied in all material respects with all applicable Federal, state, local or
foreign laws, ordinances, regulations and orders. The Seller has all Federal,
state, local and foreign governmental licenses and permits necessary in the
conduct of the Subject Business the lack of which would have a material adverse
effect on the Buyer's ability to operate the Subject Business after the Closing
on substantially the same basis as presently operated, such licenses and permits
are in full force and effect, no violations are or have been recorded in respect
of any thereof and
no proceeding is pending or threatened to revoke or limit any thereof. None of
such licenses and permits shall be affected in any material respect by the
transactions contemplated hereby.
(f) Disclosure. Neither this Agreement (including the Exhibits
and Schedules attached hereto) nor any other document, certificate or written
statement furnished to the Buyer by or on behalf of the Seller in connection
with the transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading.
3.2 Representations and Warranties of the Buyer. The Buyer represents
and warrants to the Seller, as of the Signature Date hereof, as follows:
(a) Organization, Good Standing and Power. The Buyer (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, (ii) has all requisite corporate power and authority
to own, lease and operate its properties, to carry on its business as now being
conducted, to execute and deliver this Agreement and the Assignment and
Assumption Agreement, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby and (iii) is duly
qualified and in good standing to do business in all jurisdictions in which the
failure to be so qualified and in good standing to do business could reasonably
be expected to have a material adverse effect on the business, assets,
operations, results of operations or affairs of the Buyer.
(b) Authority. The execution, delivery and performance of this
Agreement and the Assignment and Assumption Agreement, and the consummation of
the transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary corporate action on the part of the Buyer. This
Agreement and the Assignment and Assumption Agreement have been duly and validly
executed and delivered by the Buyer, and
both constitute valid and binding obligations of the Buyer, enforceable in
accordance with their respective terms except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally. Neither the execution, delivery or
performance by the Buyer of this Agreement or the Assignment and Assumption
Agreement, nor the consummation by the Buyer of the transactions contemplated
hereby or thereby, nor compliance by the Buyer with any provision hereof or
thereof, will (i) conflict with or result in a breach of any provisions of the
Certificate of Incorporation or By- laws of the Buyer, (ii) cause a default
(with due notice, lapse of time or both), or give rise to any right of
termination, cancellation or acceleration, under any of the terms, conditions or
provisions of any material note, bond, lease, mortgage, indenture, license or
other instrument, obligation or agreement to which the Buyer is a party or by
which it or any of its properties or assets is or may be bound or (iii) violate
any law, statute, rule or regulation or order, writ, judgment, injunction or
decree of any court, administrative agency or governmental body applicable to
the Buyer or any of its properties or assets. No permit, authorization, consent
or approval of or by, or any notification of or filing with, any person
(governmental or private) is required in connection with the execution, delivery
or performance by the Buyer of this Agreement or the consummation by the Buyer
of the transactions contemplated hereby.
4. Conditions of Closing.
4.1 Conditions of Each Party's Obligations. The obligations of the
Seller to sell the Purchased Assets, and of the Buyer to purchase the Purchased
Assets, are subject to the satisfaction of the following conditions unless
waived in writing (to the extent such conditions can be waived) by the Seller
and the Buyer:
(a) Approvals. All authorizations, consents, orders or approvals
of, or declarations or filings with, or expiration of waiting periods imposed
by, any governmental agency or authority necessary for the consummation of the
transactions contemplated hereby shall have been filed, occurred or been
obtained.
(b) Legal Action. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the consummation of
transactions contemplated hereby shall have been issued by any Federal or state
court and remain in effect. Each party agrees to use its best efforts to have
any such injunction or order lifted.
(c) Legislation. No Federal, state, local or foreign statute,
rule or regulation shall have been enacted which prohibits, restricts or delays
the consummation of the transactions contemplated by this Agreement or any of
the conditions to the consummation of such transactions.
(d) Related Agreements. Each of the related agreements identified
in Section 4.4 hereof (collectively, the "Related Agreements") shall have been
fully executed and delivered prior to or at the Closing by all of the parties
required to execute and deliver such agreements.
4.2 Conditions of Obligations of the Buyer. The obligation of the
Buyer to purchase the Purchased Assets is subject to the satisfaction of the
following conditions unless waived in writing (to the extent such conditions can
be waived) by the Buyer:
(a) Representations and Warranties. The representations and
warranties of the Seller set forth in Section 3.1 shall in each case be true and
correct in all material respects as of the date of this Agreement and as of the
Closing as though made at and as of the Closing.
(b) Performance of Obligations. The Seller shall have performed
all obligations required to be performed by it under this Agreement prior to and
at the Closing.
(c) Authorization. All action necessary to authorize the
execution, delivery and performance of this Agreement by the Seller and the
consummation of the transactions contemplated hereby and thereby shall have been
duly and validly taken by the Seller and the Seller shall have full power and
right to consummate the transactions contemplated
hereby and thereby.
(d) Consents and Approvals. The Seller shall have delivered to
the Buyer duly executed copies of (i) consents to the assignment of the office
leases and equipment leases listed on Schedules 1.1(c) and 1.1(f) and (ii) all
other approvals, if any, required by this Agreement or the Schedules, in each
case in form and substance satisfactory to the Buyer and counsel to the Buyer.
(e) Government Consents, Authorizations, Etc. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
Federal, state, local or foreign governmental commission, board or other
regulatory body which are required for or in connection with the execution and
delivery by the Seller of this Agreement and the consummation by the Seller of
the transactions contemplated hereby shall have been obtained or made.
4.3 Conditions of Obligations of the Seller. The obligation of
the Seller to sell the Purchased Assets to the Buyer is subject to the
satisfaction of the following conditions unless waived in writing (to the extent
such conditions can be waived) by the Seller:
(a) Representations and Warranties. The representations and
warranties of the Buyer set forth in Section 3.2 shall in each case be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made at and as of the Closing.
(b) Performance of Obligations. The Buyer shall have performed
all obligations required to be performed by it under this Agreement prior to and
at the Closing, and the Seller shall have received a certificate signed by an
authorized officer of the Buyer to that effect.
(c) Authorization. All action necessary to authorize the
execution, delivery and performance of this Agreement by the Buyer and the
consummation of the
transactions contemplated hereby shall have been duly and validly taken by the
Buyer.
(d) Consents and Approvals. The Seller shall have received duly
executed copies of (i) consents to the assignment of the office leases and
equipment leases listed on Schedules 1.1(c) and 1.1(f) and (ii) all other
approvals, if any, required by this Agreement or the Schedules, in each case in
form and substance satisfactory to the Seller and counsel to the Seller.
(e) Government Consents, Authorizations, Etc. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
Federal, state, local or foreign governmental commission, board or other
regulatory body which are required for or in connection with the execution and
delivery by the Buyer of this Agreement and the consummation by the Buyer of the
transactions contemplated hereby shall have been obtained or made.
4.4 Related Agreements. The Related Agreements referred to in this
Agreement consist of the following:
(a) the Management Services Agreement, entered into by and
between the parties hereto;
(b) the Restricted Stock Agreements, entered into by and between
the Buyer and each of the Eligible Parties, respectively;
(c) the Stockholder Non-Competition Agreements, entered into by
and between the Seller, the Buyer, and each of the Eligible Parties,
respectively;
(d) the Office Subleases relating to each of the medical offices
identified in Schedule 1.1(f), entered into by and between the parties hereto;
and
(e) the Medical Equipment Master Lease, entered into by and
between the parties hereto.
5. Closing.
5.1 Date. The closing (the "Closing") for the consummation of the
transactions contemplated by this Agreement shall be deemed to have taken place
at 12:01 a.m.
on November 1, 1996 (the "Closing Date"), irrespective of the actual
date(s) and time(s) that all of the documents required hereunder are executed
and delivered.
5.2 Closing Transactions. At the Closing, the parties shall take
the actions and deliver the documents identified in this Section 5.2. The
Closing shall not be deemed to have taken place, and the transactions
contemplated by this Agreement shall not be deemed to have been consummated,
unless all of the closing transactions identified in this Section 5.2 have been
completed or waived in writing by the parties.
(a) The Seller shall deliver to the Buyer an executed copy of the
▇▇▇▇ of Sale;
(b) Each of the parties shall execute and deliver to the other a
copy of the Assignment and Assumption Agreement;
(c) The Buyer shall deliver to the Seller a corporate check for
that portion of the Purchase Price specified in Section 2.1(a) hereof;
(d) Each of the parties shall execute and deliver to the other a
fully executed copy of the Management Services Agreement;
(e) The Seller shall deliver Restricted Stock Agreements to the
Buyer executed respectively by each of the Eligible Parties (as defined in
Schedule III, Section F, of the Management Services Agreement), and the Buyer
shall execute and deliver to the Seller Restricted Stock Agreements for each of
the Eligible Parties, respectively;
(f) The Buyer shall deliver to the Seller stock certificates
issued in the names of the Eligible Parties as required under the terms of the
Restricted Stock Agreements.
(g) The Seller shall deliver Stockholder Non-Competition
Agreements to the Buyer executed by the Seller and by each of the Eligible
Parties, respectively;
(h) Each of the parties shall execute and deliver to the other an
Office Sublease relating to each of the premises identified in Schedule 1.1(f);
and
(i) Each of the parties shall execute and deliver to the other a
copy of the Medical Equipment Master Lease.
6. Indemnification.
6.1 Definitions. As used in this Agreement, the
following terms shall have the following meanings:
(a) "Affiliate", as to any person, means any other person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with such person.
(b) "Buyer Indemnification Event" shall mean the
following:
(i) (A) the untruth, inaccuracy or breach of any
representation or warranty of the Seller contained in this Agreement, any
Schedule or Exhibit attached hereto or any certificate delivered by the Seller
in connection herewith (or any facts or circumstances constituting any such
untruth, inaccuracy or breach) or (B) the breach of any agreement or covenant of
the Seller contained in this Agreement;
(ii) the assertion against the Buyer or any Buyer
Indemnified Person of any liability or obligation arising from, relating to, or
in any way connected with the operation of the Subject Business prior to the
Closing;
(iii) the assertion against the Buyer or any Buyer
Indemnified Person of any Excluded Obligation; and
(iv) any non-compliance by the Seller with the "bulk sales
laws" of California to the extent that such laws may be applicable to the
transactions contemplated hereby.
(c) "Buyer Indemnified Persons" shall mean and include the Buyer
and its officers, directors, and employees.
(d) "Indemnified Persons" shall mean the Buyer Indemnified
Persons or the Seller Indemnified Persons, as the case may be.
(e) "Indemnifying Person" shall mean the Buyer or the Seller.
(f) "Losses" shall mean any and all losses,
claims, damages, liabilities,
expenses (including reasonable attorneys' and accountants' fees), assessments,
tax deficiencies and taxes (including interest or penalties thereon) sustained,
suffered or incurred by any Indemnified Person arising from any matter which is
the subject of indemnification under Section 6.2.
(g) "Seller Indemnification Event" shall mean (i) the untruth,
inaccuracy or breach of any representation or warranty of the Buyer contained in
this Agreement, any Schedule or Exhibit attached hereto or any certificate
delivered by the Buyer in connection herewith (or any facts or circumstances
constituting any such untruth, inaccuracy or breach) or (ii) the breach of any
agreement or covenant of the Buyer contained in this Agreement.
(h) "Seller Indemnified Persons" shall mean and include the
Seller and its partners and employees.
6.2 Indemnification Generally.
(a) Buyer Indemnification. The Seller shall indemnify, defend and
hold harmless the Buyer Indemnified Persons, and each of them, from and against
any and all Losses resulting from Buyer Indemnification Events.
(b) Seller Indemnification. The Buyer shall indemnify, defend and
hold harmless the Seller Indemnified Persons, and each of them, from and against
any and all Losses resulting from Seller Indemnification Events.
6.3 Assertion of Claims. No claim, demand, suit or cause of action
shall be brought under Section 6.2 unless the Indemnified Persons, or any of
them, give the Indemnifying Person written notice of the existence of any such
claim, demand, suit or cause of action, stating with particularity the nature
and basis of said claim, and the amount thereof, to the extent known, and
providing to the extent reasonably available all written documentation relating
thereto. Such written notice shall be delivered to the Indemnifying Person as
soon as practicable upon receipt of actual knowledge of such claim, demand, suit
or cause of action; provided,
however, that the failure to provide such written notice shall not affect the
Indemnified Persons' right to indemnification hereunder if failure to provide
such written notice does not materially adversely affect the Indemnifying
Person. Upon the giving of such written notice as aforesaid, the Indemnified
Persons, or any of them, shall have the right to commence legal proceedings
subsequent to the applicable survival date, if any, for the enforcement of their
rights under Section 6.2.
6.4 Notice and Defense of Third Party Claims.
(a) In the event any action, suit or proceeding is brought by a
third party against an Indemnified Person, with respect to which an Indemnifying
Person may have liability under Section 6.2, the action, suit or proceeding
shall, upon the written agreement of the Indemnifying Person that it is
obligated with respect to such action, suit or proceeding, be defended
(including all proceedings on appeal or for review which counsel for the
defendant shall deem appropriate) and, unless otherwise provided below,
controlled by such Indemnifying Person. The Indemnified Persons shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Persons,
unless (i) the employment of such counsel shall have been authorized in writing
by the Indemnifying Person in connection with the defense of such action, suit
or proceeding, (ii) the Indemnifying Person shall fail actively and diligently
to defend such action, suit or proceeding, (iii) the Indemnified Persons shall
have reasonably concluded that such action, suit or proceeding involves to a
significant extent matters beyond the scope of the indemnity agreement contained
in Section 6.2 or (iv) the Indemnified Persons shall have reasonably concluded
that there may be one or more legal or equitable defenses available to the
Indemnified Persons which are different from or additional to those available to
the Indemnifying Person, in any of which events the Indemnifying Person shall
not have the right to direct the defense of such action, suit or proceeding on
behalf of the Indemnified Persons and that portion of any fees and expenses of
counsel related to matters covered by the indemnity agreement and contained in
Section 6.2
shall be borne by the Indemnifying Person. The Indemnified Persons shall be
kept fully informed of such action, suit or proceeding at all stages thereof
whether or not they are so represented. The Indemnifying Person shall make
available to the Indemnified Persons and their attorneys and accountants all
books and records of the Indemnifying Person relating to such action, suit or
proceeding and the parties hereto agree to render to each other such assistance
as they may reasonably require of each other in order to ensure the proper and
adequate defense of any such action, suit or proceeding.
(b) The Indemnifying Person shall not make any settlement of any
action, suit or proceeding without the written consent of the Indemnified
Persons, which consent shall not be unreasonably withheld; provided, however,
that in the event the Indemnified Persons refuse to consent to a settlement
acceptable to the Indemnifying Person which is capable of settlement by the
payment of money only and the Indemnifying Persons shall demonstrate to the
reasonable satisfaction of the Indemnified Persons their ability to pay such
amount, the Indemnifying Person may pay the amount of the proposed settlement to
the Indemnified Persons and shall thereupon be released from any further
liability with respect to such action, suit or proceeding.
6.5 Survival of Representations, Warranties and Covenants. The
representations and warranties of the Seller contained in Section 3.1 and the
representations and warranties of the Buyer contained in Section 3.2 shall
survive the Closing and shall terminate forty-five (45) days following the first
anniversary of the Closing Date; provided, however, that the representations and
warranties of the Seller set forth in Sections 3.1(a), 3.1(b), 3.1(c) and
3.1(e), and the representations and warranties of the Buyer set forth in
Sections 3.2(a) and 3.2(b), shall survive the Closing and remain in full force
and effect until the expiration of the statute of limitations, if any,
applicable to the matters set forth therein (and indefinitely if none).
7. Non-Competition. The parties hereby acknowledge that
they have entered into
an agreement regarding non-competition, as set forth in Section 15 of the
Management Services Agreement (identified at Recital C hereof).
8. Repurchase of Assets.
The Purchased Assets, except for the Accounts Receivable, are subject
to repurchase by the Seller from the Buyer upon termination of the Management
Services Agreement in accordance with Section 13.5 of the Management Services
Agreement.
9. Amendment, Modification and Waiver.
This Agreement shall not be altered or otherwise amended except
pursuant to an instrument in writing signed by each of the parties. The waiver
by one party of the performance of any covenant, condition or promise shall not
invalidate this Agreement, nor shall it be considered as a waiver by such party
of any other covenant, condition or promise. The delay in pursuing any remedy or
in insisting upon full performance for any breach or failure of any covenant,
condition or promise shall not prevent a party from later pursuing any remedies
or insisting upon full performance for the same or any similar breach or
failure.
10. Miscellaneous.
10.1 Transfer Taxes, Etc. The Seller and the Buyer shall each pay
one-half (1/2) of all sales, use and excise taxes and all registration,
recording or transfer taxes which may be payable in connection with the
transactions contemplated by this Agreement.
10.2 Entire Agreement. This Agreement (including the recitals hereof
and the Schedules and the Exhibits attached hereto), together with the related
agreements referenced herein, contains the entire agreement between the parties
hereto with respect to the transactions contemplated hereby and supersedes all
prior agreements, representations, warranties and understandings, either oral or
written, between the parties with respect thereto.
10.3 Descriptive Headings. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provisions of this Agreement.
10.4 Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by telecopier (if an addressee has set forth a telecopy
number below), sent by nationally-recognized overnight courier or sent by
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Buyer, to:
Bone, Muscle and Joint, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Held, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Seller, to:
Southern California Orthopedic
Institute Medical Group
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Partner
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
in each case, with a copy to:
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Law Corporation
1900 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered if
personally delivered or sent by telecopier, (ii) on the Business Day after
dispatch if sent by nationally-recognized, overnight courier and (iii) on the
fifth Business Day after dispatch, if sent by mail. As used herein, "Business
Day" means a day that is not a Saturday, Sunday or a day on which banking
institutions in California are not required to be open.
10.5 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
10.6 Bulk Sales Compliance. The Buyer hereby waives compliance by the
Seller with the provisions of the "bulk sales laws" of any state which may be
applicable to the transactions contemplated hereby; provided, however, that the
Seller shall indemnify the Buyer in connection with such noncompliance to the
extent provided in Article 6 hereof.
10.7 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of
California without giving effect to the laws and principles thereof, or of any
other jurisdiction, which would direct the application of the laws of another
jurisdiction. The parties to this Agreement agree that jurisdiction and venue in
any action brought by any party hereto pursuant to this Agreement shall
exclusively lie in any federal or state court located in the State of
California. By execution and delivery of this Agreement, the parties hereto
irrevocably submit to the jurisdiction of such courts for themselves and in
respect of their property with respect to such action. The parties hereto
irrevocably agree that venue would be proper in such court, and hereby waive any
objection that such court is an improper or inconvenient forum for the
resolution of such action. The parties hereto shall act in good faith and shall
refrain from taking any actions to circumvent or frustrate the provisions of
this Agreement.
10.8 Attorneys' Fees. In the event of any dispute or controversy
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover from the other party all costs and expenses, including
attorneys' fees and accountants' fees, incurred in connection with such dispute
or controversy.
10.9 Benefits of Agreement. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. Anything contained herein to the
contrary notwithstanding, this Agreement shall not be assignable by any party
without the consent of the other parties hereto, and any purported assignment
without such consent shall be null and void.
10.10 Pronouns. As used herein, all pronouns shall include the
masculine, feminine, neuter, singular and plural thereof whenever the context
and facts require such construction.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf effective as of the day and year first
above written.
BONE, MUSCLE AND JOINT, INC.
By:_/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., President_______________
▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., President
and Chief Executive Officer
SOUTHERN CALIFORNIA ORTHOPEDIC
INSTITUTE MEDICAL GROUP
▇▇▇▇▇ ▇. ▇▇▇, M.D., INC.
By:_/s/ ▇▇▇▇▇ ▇. ▇▇▇, M.D., President________________
▇▇▇▇▇ ▇. ▇▇▇, M.D., President
▇▇▇▇▇▇ DEL ▇▇▇▇▇, M.D., INC.
By:_/s/ ▇▇▇▇▇▇ Del ▇▇▇▇▇, M.D._______________________
▇▇▇▇▇▇ Del ▇▇▇▇▇, M.D.,
President
[Signatures Continued]
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D., INC.
By:_/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D., Inc._________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.,
President
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
M.D., INC.
By:_/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D., President___________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
M.D., President
------------------------------------------
A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., A Medical
Corporation
By:_/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., President____________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.,
President
[Signatures Continued]
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D., INC.
By:__________________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D.,
President
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. JAIVIN, M.D.
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, M.D.
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
Schedule 1.1(a)
MEDICAL EQUIPMENT, FURNITURE, FURNISHINGS,
TRADE FIXTURES, AND OFFICE EQUIPMENT
See following pages.
Schedule 1.1(c)
EQUIPMENT LEASES
See following pages.
Schedule 1.1(d)
SUPPLIES
All of the medical supplies, office supplies, postage, and printed
materials owned by the Medical Group and located on the premises of any of the
Medical Group's offices at 12:01 a.m. on the Closing Date hereunder.
Schedule 1.1(e)
ACCOUNTS RECEIVABLE
All of the accounts receivable of the Medical Group the payment of which
would constitute "Collections" as defined in Section 5.3(d)(ii) of the
Management Services Agreement, determined as of 12:01 a.m. of the Closing Date
hereunder.
Schedule 1.1(f)
OFFICE LEASES
1. Suite Lease between SCVMC, Inc., as Lessor, and Medical Group, as
Lessee, dated December 15, 1995 for premises commonly known as ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. Suite Lease between SCVMC, Inc., as Lessor, and Medical Group, as
Lessee, dated May 6, 1992 for premises commonly known as ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. Lease between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and PRG Investments West dba West Hills
Plaza Associates, as Landlord, and Medical Group, as Tenant, dated April 30,
1993 for premises commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. Office Sharing Agreement between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D. and Medical
Group dated August 1, 1995 for the premises commonly known as ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5. WBC/SCOI Operating Agreement between ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, M.D., as
Sublessor, and Medical Group, as Sublessee, dated August 8, 1995 for the
premises commonly known as ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Schedule 1.1(g)
DEPOSITS
1. Security deposits under leases of $4,200
offices located in Valencia, California
(Schedule 1.1(f), items #1 and #2)
2. Security deposit under lease of 5,880
office located in West Hills, California
(Schedule 1.1(f), item #3)
-------
Total: $10,080
Schedule 1.1(h)
ADDITIONAL ITEMS
None
Schedule 2.2
ALLOCATION OF PURCHASE PRICE
Medical Equipment, Furniture, $1,441,920
Furnishings, Trade Fixtures,
and Office Equipment
Supplies $ 30,897
Fifty Percent (50%) of the $2,224,000
estimated collectible amount
of Accounts Receivable
Deposits $ 10,080
----------
SUBTOTAL: $3,706,897
Fifty Percent (50%) of the $2,224,000
estimated collectible amount
of Accounts Receivable,
subject to adjustment in
accordance with Section 2.3
TOTAL: $5,930,897
Schedule 3.1(c)
CLAIMS
None
Schedule 3.1(d)
LITIGATION
See Management Services Agreement, Schedule 6.8
Exhibit A
▇▇▇▇ OF SALE
Southern California Orthopedic Institute Medical Group, a California
general partnership (the "Seller"), hereby sells, conveys, transfers, assigns
and delivers to Bone, Muscle and Joint, Inc., a Delaware corporation (the
"Buyer"), the following assets, properties, interests in properties and rights
of the Seller (collectively, the "Purchased Assets"):
(a) the medical equipment owned by the Seller and listed on Schedule
1.1(a) of that certain Asset Purchase Agreement between the Seller and the Buyer
entered into as of the date hereof (the "Asset Purchase Agreement");
(b) the furniture, furnishings, trade fixtures, and office equipment
owned by the Seller and listed on Schedule 1.1(a) of the Asset Purchase
Agreement;
(c) the Seller's rights and interests under the equipment leases
identified on Schedule 1.1(c) of the Asset Purchase Agreement, subject to the
Buyer's assumption of the obligations accruing thereunder from and after the
date hereof;
(d) the supplies described on Schedule 1.1(d) of the Asset Purchase
Agreement;
(e) the accounts receivable described on Schedule 1.1(e) of the Asset
Purchase Agreement;
(f) the Seller's rights and interests under the office leases
identified in Schedule 1.1(f) of the Asset Purchase Agreement, subject to the
Buyer's assumption of the obligations accruing thereunder from and after the
date hereof;
(g) the deposits identified on Schedule 1.1(g) of the Asset Purchase
Agreement; and
(h) any additional items identified on Schedule 1.1(h) of the Asset
Purchase Agreement.
All assets, properties, interests in properties, and rights of the Seller not
expressly identified above or in the schedules referenced in the Asset Purchase
Agreement (the "Excluded Assets") are expressly excluded from the assets of the
Seller being sold, assigned, or otherwise transferred to the Buyer.
To the extent there is a conflict between the terms and provisions of this
▇▇▇▇ of Sale and the Asset Purchase Agreement, the terms and provisions of the
Asset Purchase Agreement shall govern.
IN WITNESS WHEREOF, the Seller has executed this instrument, by its duly
authorized Managing Partner, as of November 22, 1996, effective as of November
1, 1996.
SOUTHERN CALIFORNIA ORTHOPEDIC
INSTITUTE MEDICAL GROUP
By:__/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.,
Managing Partner
Exhibit B
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of _______________, by
and between Southern California Orthopedic Institute Medical Group ("Assignor")
and Bone, Muscle and Joint, Inc. ("Assignee").
A. Pursuant to the terms of the Asset Purchase Agreement dated the date
hereof (the "Asset Purchase Agreement"), between Assignor, as Seller, and
Assignee, as Buyer, Assignor has concurrently with the delivery hereof, sold,
conveyed, transferred, assigned and delivered to Assignee certain assets of
Assignor (the "Purchased Assets"), which are specifically identified in the
Asset Purchase Agreement.
B. In partial consideration of the Purchased Assets, the Asset Purchase
Agreement provides that Assignee shall assume certain liabilities of Assignor,
identified in Section 1.3 of the Asset Purchase Agreement.
NOW, THEREFORE, Assignor and Assignee hereby agree as follows:
1. Assignment; Assumption.
Assignor hereby assigns, transfers and delivers to Assignee, and
Assignee does hereby accept, all of Assignor's rights, titles, and interests,
legal and equitable, in, to and under the equipment leases identified in
Schedule 1.1(c) of the Asset Purchase Agreement and the office leases identified
in Schedule 1.1(f) of the Asset Purchase Agreement (the "Assigned Contracts"),
and Assignee agrees to assume and to pay when due, those liabilities accruing
from and after the date hereof under the Assigned Contracts and to observe,
perform, and comply with the covenants, restrictions, limitations, and
conditions imposed upon Assignor under the Assigned Contracts.
2. Limitation of Assumption.
2.1 Right to Contest Obligations.
Nothing contained in this Agreement shall require that Assignee
perform, pay or discharge any obligation expressly assumed hereby so long as
Assignee shall in good faith contest or cause to be contested the amount or
validity thereof.
2.2 Obligations Not Assumed.
Other than as specifically stated above, Assignee is not assuming
any liabilities or obligations of the Assignor (fixed or contingent, known or
unknown, matured or unmatured) whatsoever.
To the extent there is a conflict between the terms and provisions of this
Assignment and Assumption Agreement and the Asset Purchase Agreement, the terms
and provisions of the Asset Purchase Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SOUTHERN CALIFORNIA ORTHOPEDIC
INSTITUTE MEDICAL GROUP
("Assignor")
By:__/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., Managing Partner________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.,
Managing Partner
BONE, MUSCLE AND JOINT, INC.
("Assignee")
By:___/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., President__________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D., President
and Chief Executive Officer
ASSET PURCHASE AGREEMENT
BETWEEN
BONE, MUSCLE AND JOINT, INC.
AND
SOUTHERN CALIFORNIA ORTHOPEDIC INSTITUTE MEDICAL GROUP
Effective as of November 1, 1996
TABLE OF CONTENTS
Article Page
------- ----
1. Transfer of Purchased Assets, Assumption of Liabilities and
Related Matters ............................................... 2
1.1 Transfer of Assets ....................................... 2
1.2 Assets Not Being Transferred ............................. 2
1.3 Liabilities Being Assumed ................................ 3
1.4 Liabilities Not Being Assumed ............................ 3
1.5 Instruments of Conveyance and Transfer, Etc. ............. 3
1.6 Right of Endorsement, Etc. ............................... 3
1.7 Further Assurances ....................................... 4
1.8 Assignment of Leases ..................................... 4
2. Purchase Price; Allocation .................................... 5
2.1 Purchase Price; Payment .................................. 5
2.2 Allocation of Purchase Price ............................. 5
2.3 Accounts Receivable Payment .............................. 5
3. Representations and Warranties ................................ 7
3.1 Representations and Warranties of the Seller ............. 7
3.2 Representations and Warranties of the Buyer .............. 10
4. Conditions of Closing ......................................... 11
4.1 Conditions of Each Party's Obligations ................... 11
4.2 Conditions of Obligations of the Buyer ................... 12
4.3 Conditions of Obligations of the Seller .................. 13
4.4 Related Agreements ....................................... 14
5. Closing ....................................................... 14
5.1 Date ..................................................... 14
5.2 Closing Transactions ..................................... 15
6. Indemnification ............................................... 15
6.1 Definitions .............................................. 15
6.2 Indemnification Generally ................................ 17
6.3 Assertion of Claims ...................................... 17
6.4 Notice and Defense of Third Party Claims ................. 18
6.5 Survival of Representations, Warranties and Covenants .... 19
7. Non-Competition ............................................... 19
8. Repurchase of Assets .......................................... 20
9. Amendment, Modification and Waiver ............................ 20
10. Miscellaneous ................................................. 20
10.1 Transfer Taxes, Etc. ..................................... 20
10.2 Entire Agreement ......................................... 20
10.3 Descriptive Headings ..................................... 20
10.4 Notices .................................................. 20
10.5 Counterparts ............................................. 22
10.6 Bulk Sales Compliance .................................... 22
10.7 Governing Law; Jurisdiction .............................. 22
10.8 Attorneys' Fees .......................................... 22
10.9 Benefits of Agreement .................................... 23
10.10 Pronouns ............................................ 23
EXHIBITS
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Exhibit A - ▇▇▇▇ of Sale
Exhibit B - Assignment and Assumption Agreement
SCHEDULES
1.1(a) - Medical Equipment, Furniture, Furnishings,
Trade Fixtures, and Office Equipment
1.1(c) - Equipment Leases
1.1(d) - Supplies
1.1(e) - Accounts Receivable
1.1(f) - Office Leases
1.1(g) - Deposits
1.1(h) - Additional Items
2.2 - Allocation of Purchase Price
3.1(c) - Claims
3.1(d) - Litigation
Definitions
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The following terms which may appear in more than one Section of this
Agreement are defined at the following pages:
Term Page
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A/R Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A/R Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A/R Collections . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Accounts Receivable. . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 16
Assignment and Assumption Agreement. . . . . . . . . . . . . . . . . 3
Assumed Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 3
▇▇▇▇ of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Buyer Indemnification Event. . . . . . . . . . . . . . . . . . . . . 16
Buyer Indemnified Persons. . . . . . . . . . . . . . . . . . . . . . 16
Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . 5
Excluded Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Excluded Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Excluded Obligations . . . . . . . . . . . . . . . . . . . . . . . . 3
Indemnified Persons. . . . . . . . . . . . . . . . . . . . . . . . . 16
Indemnifying Person. . . . . . . . . . . . . . . . . . . . . . . . . 16
Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Management Services Agreement. . . . . . . . . . . . . . . . . . . . 1
Permitted Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Purchased Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Related Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 12
Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Seller Indemnification Event . . . . . . . . . . . . . . . . . . . . 17
Seller Indemnified Persons . . . . . . . . . . . . . . . . . . . . . 17
Signature Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Allocation. . . . . . . . . . . . . . . . . . . . . . . 5
Subject Business . . . . . . . . . . . . . . . . . . . . . . . . . . 1