EXHIBIT 10.16
TRANSFER AGREEMENT
This Transfer Agreement, dated as of January 1, 1998, is by and among
MedicalControl, Inc., a Delaware corporation (the "Company"), MedicalControl
Network Solutions, Inc., a Delaware corporation ("MNS"), Genesis/ValueCheck,
Inc., a Delaware corporation ("GVC"), MedicalControl Holdings, Inc., a Delaware
corporation ("Holdings"), and PPO Management Solutions, Inc., a Delaware
corporation ("PMSI" and together with MNS and GVC, the "Operating Companies").
WHEREAS, the Operating Companies were incorporated to facilitate a
transaction (the "Transaction") that includes the transfer to of the Company's
(i) PPO business (the "PPO Business") to MNS (ii) large claim negotiation
business (the "GVC Business") to GVC, and (iii) PPO management services and
repricing software and services business (the "Administration Business") to
PMSI; and
WHEREAS, as part of the Transaction, each Operating Company will issue
1,000 shares of its common stock, being of all of its outstanding shares of
capital stock, to Holdings, a wholly owned subsidiary of the Company, and the
Company will transfer (i) the PPO Assets (as defined below) to MNS (ii) the GVC
Assets (as defined below) to GVC (iii) and the Administration Assets (as defined
below) to PMSI and MNS will pay or assume certain liabilities of the Company
relating to the PPO Business, GVC will pay or assume certain liabilities of the
Company relating to the GVC Business and PMSI will pay or assume certain
liabilities of the Company relating to the Administration Business; and
WHEREAS, as part of the Transaction, the Company will contribute all of the
capital stock of Diversified Group Administrators, Inc., a Pennsylvania
corporation, to Holdings.
NOW, THEREFORE, in consideration of the forgoing recitals, the mutual
agreements set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:
1. Effective Time. The transfer of assets to, and the assumption of
liabilities by, the Operating Companies shall be effective as of the first
second of January 1, 1998 (the "Effective Time").
2. Transfer of Stock. As of the Effective Time, each Operating Company
will issue to the Company 1,000 shares of its Common Stock. $0.01 par value
(the "Stock") to Holdings, which will constitute all of the outstanding shares
of stock of such Operating Company. As of the Effective Time, the Company will
contribute all of the capital stock of DGA to Holdings.
3. Assignment by the Company.
(a) As of the Effective Time, the Company will transfer to MNS all of its
direct or indirect right, title and interest in and to all of the assets of the
Company of every kind and character, whether owned or leased relating to the PPO
Business, including without limitation:
(i) all of the assets set forth on Exhibit A hereto;
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(ii) all of the Company's direct or indirect right, title and interest
in and to all assets and properties of every kind and character, tangible or
intangible relating to the PPO Business, including, without limitation, all of
the Company's direct or indirect right, title and interest in and to all
securities, contracts, leasehold and mineral interests, beneficial interests in
trusts, choices in action, equipment,
furniture, fixtures, furnishings, vehicles, supplies, trade names, trademarks,
service marks, copyrights, trade secrets and patents; and
(iii) all current and active records, files and papers pertaining to
the foregoing.
The rights, titles and interests of the Company assigned to MNS hereby are
collectively referred to in this Agreement as the "PPO Assets". The PPO Assets
shall be transferred to MNS subject to all existing liens and encumbrances
thereon.
(b) As of the Effective Time, the Company will transfer to GVC all of its
direct or indirect right, title and interest in and to all of the assets of GVC
of every kind and character, whether owned or leased relating to the GVC
Business, including without limitation:
(i) all of the assets set forth on Exhibit B hereto;
---------
(ii) all of the Company's direct or indirect right, title and
interest in and to all assets and properties of every kind and character,
tangible or intangible relating to the GVC Business, including, without
limitation, all of the Company's direct or indirect right, title and interest in
and to all securities, contracts, leasehold and mineral interests, beneficial
interests in trusts, choices in action, equipment, furniture, fixtures,
furnishings, vehicles, supplies, trade names, trademarks, service marks,
copyrights, trade secrets and patents; and
(iii) all current and active records, files and papers pertaining to
the foregoing.
The rights, titles and interests of the Company assigned to GVC hereby are
collectively referred to in this Agreement as the "GVC Assets". The GVC Assets
shall be transferred to GVC subject to all existing liens and encumbrances
thereon.
(c) As of the Effective Time, the Company will transfer to PMSI all of its
direct or indirect right, title and interest in and to all of the assets of the
Company of every kind and character, whether owned or leased relating to the
Administration Business, including without limitation:
(i) all of the assets set forth on Exhibit C hereto;
---------
(ii) all of the Company's direct or indirect right, title and
interest in and to all assets and properties of every kind and character,
tangible or intangible relating to the Administration Business, including,
without limitation, all of the Company's direct or indirect right, title and
interest in and to all securities, contracts, leasehold and mineral interests,
beneficial interests in trusts, choices in action, equipment, furniture,
fixtures, furnishings, vehicles, supplies, trade names, trademarks, service
marks, copyrights, trade secrets and patents; and
(iii) all current and active records, files and papers pertaining to
the foregoing.
The rights, titles and interests of the Company assigned to PMSI hereby are
collectively referred to in this Agreement as the "Administration Assets". The
Administration Assets shall be transferred to PMSI subject to all existing liens
and encumbrances thereon.
4. Payment and Assumption by the Company.
(a) As consideration for the PPO Assets, as of the Effective Time, MNS
will pay or assume liability for, pay and hold the Company harmless from the
liabilities relating to the PPO Assets, including,
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without limitation those set forth on Exhibit D hereto and will issue 1,000
---------
shares of its Common Stock to Holdings, which will be all of the outstanding
Capital Stock of MNS.
(b) As consideration for the GVC Assets, as of the Effective Time, GVC
will pay or assume liability for, pay and hold the Company harmless from the
liabilities relating to the GVC Assets, including, without limitation those set
forth on Exhibit E hereto and will issue 1,000 shares of its Common Stock to
---------
Holdings, which will be all of the outstanding Capital Stock of GVC.
(c) As consideration for the Administration Assets, as of the Effective
Time, PMSI will pay or assume liability for, pay and hold the Company harmless
from the liabilities relating to the Administration Assets, including, without
limitation those set forth on Exhibit F hereto and will issue 1,000 shares of
---------
its Common Stock to Holdings, which will be all of the outstanding Capital Stock
of PMSI.
5. Personnel. At the Effective Time, the employees listed on Schedule G
of the Company will become employees of GVC, the employees listed on Schedule H
will become employees of PMSI and all other employees will become employees of
MNS.
6. Representations and Warranties of the Operating Companies. Each
Operating Company represents and warrants the following as to such Operating
Company:
(a) Organization and Good Standing. Operating Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with all requisite power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby.
Operating Company is duly qualified to do business and is in good standing in
the State of Texas.
(b) Authorization and Validity. The execution, delivery and performance
of this Agreement by Operating Company and the consummation of the transactions
contemplated hereby have been duly authorized by Operating Company. This
Agreement has been duly executed and delivered by Operating Company and
constitutes legal, valid and binding obligations of Operating Company,
enforceable against Operating Company in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditor's rights generally or the availability of equitable remedies.
(c) No Violation. Neither the execution and performance of this Agreement
nor the consummation of the transaction contemplated hereby, will (a) conflict
with or result in a breach of the terms, conditions and provisions of, or
constitute a default under the Certificate of Incorporation or Bylaws of
Operating Company or any material agreement, indenture or other instrument under
which Operating Company is bound or (b) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over Operating
Company.
7. Representations and Warranties of the Company. The Company represents
and warrants the following:
(a) Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with all requisite power and authority to carry on the business in
which it is engaged and to own the properties it owns. The Company is duly
qualified to do business and is in good standing in the State of Texas.
(b) Authorization and Validity. The execution, delivery and performance
of this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized by the
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Company. This Agreement has been executed and delivered by the Company and
constitutes legal, valid and binding obligations of the Company, enforceable
against it in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
the availability of equitable remedies.
(c) No Violation. Neither the execution and performance of this Agreement
nor the consummation of the transactions contemplated hereby or thereby will (a)
result in a violation or breach of the Articles of Incorporation or Bylaws of
the Company or any material agreement or other instrument under which the
Company is bound or to which any of the assets of the Company is subject, or
result in the creation or imposition of any lien, charge or encumbrance upon any
of such assets except as set forth on Schedule E, or (b) violate any applicable
law or regulation or any judgment or order of any court or governmental agency,
except with respect to both clauses (a) and (b) above any violations or breaches
which would not have a material adverse effect on the Company or the Company's
business or the assets or businesses being transferred to MNS.
(d) Consents. No authorization, consent, approval, permit or license of,
or filing with, any governmental or public body or authority, any lender or
lessor or any other person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of this Agreement on
the part of the Company except for those set forth in Schedule F hereto, all
which have been obtained prior to the Effective Date unless indicated otherwise
on Schedule F hereto.
8. Indemnification.
(a) The Company's Indemnity. The Company hereby agrees to indemnify,
defend and hold each Operating Company and its officers, directors, agents,
attorneys and affiliates harmless from and against all losses, claims,
obligations, demands, assessments, penalties, liabilities, costs, damages,
reasonable attorney's fees and expenses (collectively, "Damages"), as such
Damages are incurred, asserted against or incurred by such Operating Company by
reason of or resulting from a breach by the Company of any representation or
warranty contained herein or in any agreement executed pursuant hereto, or
incurred by the Company.
(b) Operating Companies' Indemnity. Each Operating Company hereby agrees
to indemnify, defend and hold the Company and its officers, directors, agents,
attorneys and affiliates harmless from and against all Damages, as such Damages
are incurred, asserted against or incurred by the Company by reason of or
resulting from (i) a breach by such Operating Company of any representation or
warranty contained herein, or (ii) the failure of such Operating Company to pay,
perform and discharge when due any Assumed Liabilities.
(c) Procedures. Any party seeking indemnification (the "Indemnified
Party") shall give notice to the other party (the "Indemnifying Party") within
15 business days after actual receipt of service or summons to appear in any
action begun in respect of which indemnify may be sought hereunder, or actual
notice of assertion of a claim with respect to which it or they seek
indemnification. The failure so to notify the Indemnifying Party shall not
cause the Indemnified Party to lose its right to indemnification under this
Agreement. The Indemnifying Party may participate at its own expense and with
its counsel in the defense of such action. If the Indemnifying Party so elects
within a reasonable time after receipt of such notice it may assume the defense
of such action with counsel chosen by the Indemnifying Party, unless the
Indemnified Party reasonably objects to such assumption on the ground that its
counsel has advised it that there may be legal defenses available to it that are
different from or in addition to those available to the Indemnified Party and
counsel for the Indemnifying Party concurs in such advice, in which case the
Indemnified Party shall have the right to employ counsel. If the Indemnifying
Party assumes the defense of such action, the Indemnifying Party shall not be
liable for fees and expenses of
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counsel for the Indemnified Party incurred thereafter in connection with such
action. In no event shall be Indemnifying Party be liable for the fees and
expenses of more than one counsel for all Indemnified Parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
9. Further Assurances. Each party hereto shall duly execute and deliver
or cause to be executed and delivered all instruments of sale, conveyance,
transfer, assignment or assumption, and all notices, releases, acquaintances and
other documents that may be necessary or advisable to consummate the
transactions contemplated by this Agreement to evidence the assumption of the
Assumed Liabilities by the Operating Companies and the sale and transfer of the
PPO Assets, GVC Assets and Administration Assets by the Company; provided that
none of the foregoing actions is in contravention of this Agreement. If for any
reason any asset or liability intended to be transferred from the Company to an
Operating Company pursuant hereto cannot be transferred or the transfer is
deemed void, the Operating Company and the Company and the Operating Company
will enter into arrangements wherein the Operating Companies, as the case may
be, will be entitled to the economic benefit of the asset and will compensate
the Company for any liability incurred relating to such asset after the date
hereof.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing and, unless otherwise provided in this Agreement,
shall be deemed to have been duly given when delivered in person or by mail or
when dispatched by telegram or electronic facsimile transfer (confirmed in
writing by mail simultaneously dispatched) to the addressee at the address
specified below:
If to MNS: P. O. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to GVC: ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to PMSI: P. O. Box 549005
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Company P. O. Box 549005
or Holdings: ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or such other address as either party may from time to time designate by
like notice.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior written or oral agreements pertaining to such subject matter.
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Texas.
13. Binding Nature. This Agreement shall inure to the benefits of and be
binding upon the parties to this Agreement and their respective successors and
assigns.
14. Descriptive Headings. The descriptive headings herein are inserted
for the convenience or reference only and are not intended to be part of or
affect the meaning or interpretation of this Agreement.
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15. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights,
benefits or remedies or any nature whatsoever under or by reason of this
Agreement.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
17. Successors. All agreements of the parties in this Agreement shall
bind and inure to the benefits of their respective successors.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date
first above written.
MedicalControl, Inc.
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇
--------------------------------
▇. ▇▇▇▇ ▇▇▇▇, President and
Chief Executive Officer
MedicalControl Network Solutions, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and
Chief Executive Officer
Genesis/ValueCheck, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and
Chief Executive Officer
PPO Management Solutions, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and
Chief Executive Officer
MedicalControl Holdings, Inc.
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇
--------------------------------
▇. ▇▇▇▇ ▇▇▇▇, President and
Chief Executive Officer
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EXHIBITS
A PPO Business Assets
B GVC Business Assets
C PMSI Business Assets
D PPO Assumed Liabilities
E GVC Assumed Liabilities
F PMSI Assumed Liabilities
G GVC Personnel
H PMSI Personnel
I No Violations
J Consents
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