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EXHIBIT 2.52
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ASSET PURCHASE AGREEMENT
dated as of
September 1, 1998
by and among
AMERICAN PHYSICIAN PARTNERS, INC.
(a Delaware corporation),
ORMOND IMAGING PARTNERS, INC.
(a Delaware corporation),
MAGNETIC RESONANCE IMAGING ASSOCIATES LIMITED PARTNERSHIP
(a Maryland limited partnership),
and
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. PERL, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement"), dated as of
September 1, 1998, is by and among AMERICAN PHYSICIAN PARTNERS, INC., a
Delaware corporation ("APPM"), ORMOND IMAGING PARTNERS, INC., a Delaware
corporation and a wholly-owned subsidiary of APPM ("Buyer"), MAGNETIC
RESONANCE IMAGING ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership ("Seller"), and ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. Perl, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (collectively, the "General
Partners").
RECITALS
A. Seller owns and operates one diagnostic imaging center located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Business").
B. Buyer is a wholly-owned subsidiary of APPM. APPM is engaged
in the business of owning, operating and acquiring the assets of, and managing
the non-medical aspects of, radiology practices and diagnostic imaging centers.
C. Buyer desires (i) to purchase from Seller certain of the
assets and other rights related to the Business which Seller desires to sell to
Buyer (said assets and rights are defined in Section 2.1 as the "Purchased
Assets"), and (ii) to assume certain liabilities of Seller relating thereto as
set forth herein, on the terms and conditions specified in this Agreement.
The General Partners acknowledge that they have received adequate consideration
for entering into this Agreement and performing their obligations under this
Agreement, and that they will be benefited by the transactions contemplated by
this Agreement. The General Partners acknowledge that APPM and Buyer have
relied on the General Partners' participation in this Agreement in connection
with APPM's and Buyer's entering into this Agreement and consummating the
transactions provided for in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the preceding recitals and the
mutual representations, warranties, covenants and agreements set forth herein,
the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
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"Affiliate" with respect to any Person shall mean a Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"APPM" shall have the meaning set forth in the preamble to this
Agreement.
"Best knowledge of Seller" and similar phrases shall mean the
knowledge of ▇▇▇▇ ▇. ▇▇▇▇▇, M.D., in his capacity as a General Partner of
Seller, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in his capacity as the managing General Partner
of Seller, with the obligation and duty to investigate and review the records
and files pertaining to Seller, but without further investigation.
"Best knowledge of Buyer" and similar phrases shall mean the knowledge
of ▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as senior vice president of Buyer, with the
obligation and duty to investigate and review the records and files pertaining
to Buyer, but without further investigation.
"Best knowledge of General Partners" and similar phrases shall mean
the knowledge of each respective General Partner, without further
investigation.
"Buyer" shall have the meaning set forth in the preamble to this
Agreement.
"Claim Notice" shall have the meaning set forth in Section 14.3(a).
"Closing" shall mean the closing of the transactions contemplated by
this Agreement as set forth in Article IV.
"Closing Date" shall have the meaning set forth in Section 4.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confidential Information" shall mean all trade secrets and other
confidential and/or proprietary information of the particular Person,
including, but not limited to, information derived from reports, processes,
data, know-how, software programs, improvements, inventions, strategies,
compensation structures, reports, investigations, research, work in progress,
codes, marketing and sales programs and plans, financial projections, cost
summaries, formulae, contract analyses, financial information, forecasts,
confidential filings with any state or federal agency, and all other
confidential concepts, methods of doing business, ideas, materials or
information prepared or performed for, by or on behalf of such Person by its
employees, officers, directors, agents, representatives, or consultants.
"Controlled Group" shall have the meaning set forth in Section
5.19(g).
"Damages" shall have the meaning set forth in Section 14.1.
"Election Period" shall have the meaning set forth in Section 14.3(a).
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"Employee Benefit Plans" shall have the meaning set forth in Section
5.19(a).
"Encumbrance" shall mean any charge, claim, community property
interest, condition, equitable interest, lien, option, pledge, security
interest, right of first refusal, or restriction of any kind, including any
restriction on use, voting, transfer, receipt of income or exercise of any
other attribute of ownership.
"Environmental Laws" shall have the meaning set forth in Section
5.22(e).
"ERISA" shall have the meaning set forth in Section 5.17.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Assets" shall have the meaning set forth in Section 2.2.
"General Partners" shall have the meaning set forth in the preamble to
this Agreement.
"Indemnified Party" shall have the meaning set forth in Section
14.3(a).
"Indemnifying Party" shall have the meaning set forth in Section
14.3(a).
"Indemnity Notice" shall have the meaning set forth in Section
14.3(d).
"Insurance Policies" shall have the meaning set forth in Section 5.24.
"IRS" shall mean the Internal Revenue Service.
"Lease Assignments" shall have the meaning set forth in Section
11.1(f).
"Lease Agreements" shall have the meaning set forth in Section 5.20.
"Limited Partners" shall mean all of the limited partners of Seller.
"Material Adverse Effect" shall mean a material adverse effect on the
assets, properties, business, operations, condition (financial or otherwise),
liabilities or results of operations of the Person or Persons being referred
to, taken as a whole, in consideration of all relevant facts and circumstances.
"Medical Waste" shall mean (i) pathological waste, (ii) blood, (iii)
sharps, (iv) wastes from surgery or autopsy, (v) dialysis waste, including
contaminated disposable equipment and supplies, (vi) cultures and stocks of
infectious agents and associated biological agents, (vii) contaminated animals,
(viii) isolation wastes, (ix) contaminated equipment, (x) laboratory waste,
(xi) any substance, pollutant, material, or contaminant listed or regulated
under any Medical Waste Law, and (xii) other biological waste and discarded
materials contaminated with or exposed to blood, excretion, or secretions from
human beings or animals.
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"Medical Waste Laws" shall mean the following, including regulations
promulgated and orders issued thereunder, as in effect of the date hereof and
the Closing Date: (i) the MWTA, (ii) the U.S. Public Vessel Medical Waste Anti-
Dumping Act of 1988, 33 USCA 2501 et seq., (iii) the Marine Protection,
Research, and Sanctuaries Act of 1972, 33 USCA 1401 et seq., (iv) The
Occupational Safety and Health Act, 29 USCA 651 et seq., (v) the United States
Department of Health and Human Services, National Institute for Occupational
Safety and Health, Infectious Waste Disposal Guidelines, Publication No.
88-119, and (vi) any other federal, state, regional, county, municipal, or
other local laws, regulations, and ordinances insofar as they are applicable to
any Seller's assets or operations and purport to regulate Medical Waste or
impose requirements related to Medical Waste.
"MWTA" shall mean the Medical Waste Tracking Act of 1988, 42 U.S.C.
6992, et seq.
"Ordinary course of business" shall mean the usual and customary way
in which the particular entity has conducted its business in the past.
"Partners" shall mean the General Partners and the Limited Partners.
"Payors" shall mean any and all third-party payors including, but not
limited to, Medicare and Medicaid Programs (as defined in Section 5.28(a)),
insurance companies, health maintenance organizations, preferred provider
organizations, independent practice associations, hospitals, hospital systems,
integrated delivery systems, CHAMPUS, and any and all other private or
governmental entities rendering payment to Seller for professional medical or
technical services.
"Person" shall mean any natural person, corporation, partnership,
joint venture, limited liability company, association, group, organization or
other entity.
"Purchased Assets" shall have the meaning set forth in Section 2.1.
"Regulated Activity" shall have the meaning set forth in Section
5.22(e).
"Schedules" shall mean the schedules attached hereto as of the date
hereof or otherwise delivered by any party hereto pursuant to the terms hereof,
as such may be amended or supplemented from time to time pursuant to the
provisions hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall have the meaning set forth in the preamble to this
Agreement.
"Seller Annual Financial Statements" shall have the meaning set forth
in Section 5.10.
"Seller Current Balance Sheet" shall have the meaning set forth in
Section 5.10.
"Seller Current Financial Statements" shall have the meaning set forth
in Section 5.10.
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"Seller Financial Statements" shall have the meaning set forth in
Section 5.10.
"Tax Returns" shall include all federal, state, local or foreign
income, excise, corporate, franchise, property, sales, use, payroll,
withholding, provider, environmental, duties, value added and other tax returns
(including information returns).
"Third Party Claim" shall have the meaning set forth in Section
14.3(a).
Section 1.2 Rules Of Interpretation. The definitions set forth
in Section 1.1 shall be equally applicable to both the singular and the plural
forms of the terms therein defined and shall cover both genders.
Unless otherwise indicated "herein," "hereby," "hereunder," "hereof,"
"hereinabove," "hereinafter" and other equivalent words refer to this Agreement
and not solely to the particular Article, Section or subdivision hereof in
which such word is used.
This Agreement occasionally omits the modifying words "all" and "any"
and the articles "the" and "an," but the fact that a modifier or an article is
absent from one statement and appears in another is not intended to affect the
interpretation of either statement.
Unless otherwise indicated, reference herein to an Article number
(e.g., Article IV) or a Section number (e.g., Section 6.2) shall be construed
to be a reference to the designated Article number or Section number of this
Agreement.
ARTICLE II
PURCHASE AND SALE OF ASSETS
Section 2.1 Purchased Assets. Seller hereby sells, assigns,
transfers, conveys and delivers to Buyer, and Buyer hereby purchases, all
right, title and interest of Seller in and to the following assets, rights and
interests used in the operation of the Business, of every kind and description,
wherever located, whether tangible or intangible, excluding the Excluded Assets
(as such term is defined in Section 2.2 below), including, without limitation,
the following assets, rights and interests (collectively, the "Purchased
Assets"):
(a) Leasehold Improvements. All improvements, other
constructions, construction-in-progress and non-landlord owned fixtures
(collectively, the "Improvements") owned by Seller and located on the Real
Property (as defined in Section 2.2 hereof) including, without limitation, the
Improvements as listed in Schedule 2.1(a) hereto;
(b) Personal Property. All tangible personal property
(collectively, the "Personal Property") of every kind and nature (other than
items of tangible personal property that are consumed, disposed of, or held for
sale, or are inventoried in the ordinary course of business), including,
without limitation, all furniture, machinery, owned or licensed computer
systems, and equipment, including, without limitation, the Personal Property
listed in Schedule 2.1(b) hereto;
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(c) Inventory. All inventories of supplies, drugs, food,
janitorial and office supplies, maintenance and shop supplies, and other
disposables which are existing as of the Closing Date (the "Inventory"). A
list of Inventory as of the date of this Agreement is attached as Schedule
2.1(c) hereto;
(d) Intangible Assets. All intangible property
(collectively, the "Intangible Assets") of every kind and nature, including,
without limitation, the following:
(i) All patents, trademarks, trade names,
business names (including all names associated with specialty programs
or services operated by Seller), service marks, logos, trade secrets,
copyrights, and all applications and registrations therefor that are
owned by Seller, and licenses thereof pursuant to which Seller has any
right to the use or benefit of, or other rights with respect to, any
of the foregoing (collectively, the "Intellectual Property"),
including, without limitation, the items identified in Schedule
2.1(d)(i) hereto;
(ii) All telephone numbers;
(iii) All licenses, permits, certificates,
franchises, registrations, authorizations, filings, consents,
accreditations, approvals and other indicia of authority relating to
the operation of the Business as presently conducted by Seller
(collectively, the "Governmental Licenses and Permits"), which
Governmental Licenses and Permits are listed in Schedule 2.1(d)(iii)
hereto. In the event the sale, transfer, assignment, or conveyance of
any of the Governmental Licenses and Permits is unlawful or is not
permissible under any agreement, or federal, state, or local law,
rule, or regulation, then the terms "sale, transfer or assignment",
for the purposes of this Agreement with respect to any such
Governmental Licenses and Permits, shall be deemed to mean and require
(1) Seller's relinquishment of all of its right, title and interest
in, to and under such Governmental Licenses and Permits as of the
Closing Date to the fullest extent necessary or appropriate to enable
Buyer to acquire such Governmental Licenses and Permits, and (2) the
issuance or grant to Buyer by the appropriate third party or federal,
state, or local governmental authority of all right, title and
interest in, to and under such Governmental Licenses and Permits as of
the Closing Date reasonably equivalent to that relinquished by the
Seller, including, but not limited to, the right, authority, and
approval for Buyer to provide services at the Business from and after
the Closing Date in a reasonably equivalent manner as the Seller prior
to the Closing Date;
(iv) All benefits, proceeds or any other amounts
payable under any policy of insurance maintained by Seller with
respect to destruction of, damage to, or loss of use of any of the
Purchased Assets including, without limitation, the items set forth in
Schedule 2.1(d)(iv);
(v) All deposits or prepayments (the "Deposits")
held by Seller in connection with future services to be rendered by
Seller, by Payors delivered under any payor agreements including,
without limitation, the Deposits set forth in Schedule 2.1(d)(v);
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(vi) Those advance payments, prepayments, prepaid
expenses, deposits and the like (the "Prepaids") which are existing as
of the Closing Date, and which were made by Seller solely with respect
to its operation of the Business (the "Purchased Prepaids") subject to
any applicable prorations as specified in this Agreement, the current
categories and amounts of which are set forth in Schedule 2.1(d)(vi)
hereto;
(vii) Seller's goodwill associated with the
Purchased Assets;
(viii) All interests in joint ventures,
partnerships, corporations and limited liability companies, other than
any such interests or any marketable and investment securities
identified in Schedule 2.2 as Excluded Assets (as defined in Section
2.2) (provided that the failure of Seller to list publicly-traded
securities in such Schedule shall not cause same to be among the
Purchased Assets), including, without limitation, the interests
identified in Schedule 2.1(d)(viii) hereto; and
(ix) To the extent assignable, all warranties,
guarantees and covenants not to compete with respect to the Business
including, without limitation, the arrangements identified in Schedule
2.1(d)(ix) hereto;
(e) Purchased Contracts. All right, title and interest
of Seller in, to and under the leases, contracts and agreements to which Seller
is a party or a beneficiary and which relate to or are necessary for the
Business (collectively, the "Purchased Contracts"). Schedule 2.1(e) hereto
contains a list of all leases, contracts and agreements to which Seller is a
party or a beneficiary, which relate to or are necessary for the Business and
which either (i) involve the payment or receipt by Seller of any form of
services or consideration in any 12-month period in excess of $10,000, or (ii)
which will extend beyond the Closing and that are not terminable or cancelable
upon 60 days' notice;
(f) Books and Records. Seller shall make available to
Buyer and, at the Closing Date, Buyer shall take possession of, all of Seller's
books, records, papers, computer tapes, disks or data and instruments related
to the Business or the Purchased Assets or which are required or necessary in
order for Buyer to conduct the Business from and after the Closing Date
including all operating data and records pertaining to the assets, properties,
business, operations, accounts, financial condition, customers or suppliers of
the Business (collectively, "Books and Records"), including, without
limitation, the following:
(i) subject to any applicable federal and state
law, patient and medical records and all other medical and financial
information regarding patients of the Business;
(ii) patient lists;
(iii) employment and personnel records relating to
retained employees;
(iv) personnel policies and manuals, electronic
data processing materials, books of account, accounting books,
financial records, sales records, sales and payroll tax returns,
customer data, journals and ledgers; and
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(v) all material, documents, and information
relating to the Personal Property and the Lease Agreements, all
property use and operational material, contracts, correspondence, and
governmental material (i.e., licenses, permits, notices, and other
matters with respect to governmental authorities), information and
notices. Seller shall be entitled to retain copies of any of the
Books and Records and shall be responsible for all costs and expenses
relating to such copies, Buyer also agrees to make the Books and
Records available for inspection and copying by Seller, at Seller's
expense, after Closing, during normal business hours and upon
reasonable advance notice in connection with any audit, inquiry, or
litigation to which Seller may be made a party or in connection with
any tax or other governmental filing that Seller is required to make;
(g) Accounts Receivable. Accounts receivable arising on
or subsequent to the Closing Date; and
(h) Residual Assets. All other assets of Seller other
than the Excluded Assets (as such term is defined in Section 2.2 below).
Section 2.2 Excluded Assets. Notwithstanding Section 2.1(a), the
definition of "Purchased Assets" shall exclude all assets, rights and interests
identified on Schedule 2.2 hereto (collectively, the "Excluded Assets"). The
Excluded Assets shall not be transferred by Seller to Buyer. In connection
with the foregoing, Buyer and Seller each confirms and agrees that Seller
presently owns that real property known as and located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, which, together with all buildings and landlord improvements
thereon and appurtenances thereto, is hereafter referred to as the "Real
Property." The Real Property is used in connection with the Business. On the
Closing Date, Seller shall enter into a lease, in form and substance acceptable
to Seller and Buyer, for the rental of the real property to Buyer, which lease
is intended by Seller to be ultimately assigned by Seller to Duke Associates
Limited Partnership in connection with Seller's intended sale of the real
property to said partnership.
Section 2.3 Subsequent Actions. If, during a reasonable time
following the Closing Date, APPM or Buyer shall consider or be advised that any
bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in
Buyer its right, title or interest in, to or under any of the Purchased Assets
or otherwise to carry out the transactions described in this Agreement, Seller
shall, at the sole cost and expense of Buyer, execute and deliver all such
bills of sale, assignments and assurances and shall take and do all such other
actions and things as may be necessary or desirable to vest, perfect or confirm
any and all right, title and interest in, to and under the Purchased Assets or
otherwise to carry out the transactions described in this Agreement; provided,
however, that the same do not increase Seller's obligations or liabilities
beyond those created by this Agreement.
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ARTICLE III
ASSUMED LIABILITIES
Section 3.1 Assumed Liabilities. As of the Closing, Buyer hereby
agrees to assume, satisfy or perform when due only those liabilities and
obligations of Seller relating to operation of the Business as set forth on
Schedule 3.1 hereto (the "Assumed Liabilities"). Other than the Assumed
Liabilities, Buyer shall not assume, nor shall APPM or Buyer or any of their
respective affiliates or subsidiaries be deemed to have assumed, guaranteed,
agreed to perform or otherwise be bound by, or be responsible or otherwise
liable for, any liability or obligation of any nature of Seller (whether or not
related to the Business), or claims for such liability or obligation, whether
accrued, matured or unmatured, liquidated or unliquidated, fixed or contingent,
known or unknown (the "Unassumed Liabilities"). Specifically, and without
limiting the generality of the foregoing, other than the Assumed Liabilities,
neither APPM nor Buyer nor any of their respective Affiliates or subsidiaries
shall have any liability or obligation with respect to or arising out of: (a)
acts or omissions of Seller, its partners, agents or employees whether prior to
or subsequent to the Closing Date, and whether or not in the ordinary course of
business; (b) liabilities or obligations relating to or secured by any portion
of either the Purchased Assets or the Business prior to the Closing; (c)
employee related liabilities (including accrued wages, vacation,
employee-related insurance or deferred compensation claimed by any person in
connection with his or her employment by, or termination of employment with,
Seller, or payroll taxes payable or liabilities arising under any Employee
Benefit Plan maintained by Seller); (d) liabilities or obligations of Seller,
including those for attorneys' fees, arising out of any litigation or other
proceeding pending as of the Closing Date in connection with the Business or
any claim, whether or not asserted and whether or not liquidated or contingent,
with respect to the Business arising from acts or the failure to take any
action by Seller or any of its partners, agents or employees prior to the
Closing Date; (e) liabilities for any income or other tax, whether disputed or
not, attributable to Seller and/or the Business for any period or transaction
through the Closing; (f) except as set forth on Schedule 3.1, trade payables
which arise prior to the Closing; (g) claims by any Payor or patient with
respect to any matter or billing occurring prior to the Closing and for which
payment is received by Seller prior to the Closing; and (h) any other liability
or obligation of Seller. Buyer shall be responsible for all refunds required
by Payors in the event such refund relates to the accounts receivable purchased
by Buyer (but not to exceed the purchase price, determined on a pro rata basis,
that Buyer paid for the particular accounts receivable required to be
refunded); provided, however, that Seller shall remain responsible for all
other refunds which relate to revenue collected prior to Closing. A list of
all refunds and credits due as of the Closing Date shall be set forth on
Schedule 3.1 hereto and such refunds and credits shall be deemed Unassumed
Liabilities. All employment tax liabilities of Seller shall remain the
Seller's responsibility for collection, remittance and tax filing purposes for
the period through the Closing. Seller shall supply confirmation that all past
and current employment taxes through the Closing have been remitted to the
appropriate agencies in a timely manner.
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ARTICLE IV
PURCHASE PRICE AND CLOSING
Section 4.1 Purchase Price.
(a) Aggregate Purchase Price. The aggregate purchase
price (the "Purchase Price") for the sale, transfer, assignment, conveyance and
delivery of the Purchased Assets from Seller to Buyer shall consist of all of
the consideration set forth on Exhibit A hereto (the "Consideration").
(b) Allocation of Purchase Price. The Purchase Price
shall be allocated by Buyer and Seller in accordance with Schedule 4.1(b)
hereto.
Section 4.2 Closing and Effective Time. The closing of the
transactions contemplated under this Agreement (the "Closing") shall take place
at the offices of Sherman, Meehan, ▇▇▇▇▇▇ & Ain, on September 22, 1998,
effective as of September 1, 1998 or on such other date as the parties may
mutually agree in writing.
The transfer of the Purchased Assets by Seller to Buyer and Buyer's
assumption of the Assumed Liabilities shall be deemed effective as of 12:01
a.m. on September 1, 1998 (the "Effective Time"). The obligations and proceeds
from the operations of the Business shall be deemed to be the property of Buyer
from and after the Effective Time, and Buyer and Seller shall take any and all
actions reasonably necessary to carry out the intent of this Section 4.2.
Section 4.3 Closing Deliveries.
(a) Seller. At the Closing, Seller shall execute and
deliver to Buyer: (i) a ▇▇▇▇ of Sale substantially in the form attached as
Exhibit B hereto ("▇▇▇▇ of Sale"); (ii) the documents required to be delivered
pursuant to Section 11.1 hereof; and (iii) such other instruments as shall be
reasonably requested by Buyer to vest in Buyer title in and to the Purchased
Assets. Buyer shall have possession of the tangible Purchased Assets and the
Books and Records immediately upon Closing.
(b) Buyer. At the Closing, Buyer shall deliver to
Seller: (i) the cash portion of the Consideration in immediately available
funds; (ii) the shares of APPM common stock constituting a portion of the
Consideration as specified in Exhibit A; (iii) the documents required to be
delivered pursuant to Section 11.2 hereof; and (iv) such other instruments as
shall be reasonably requested by Seller to complete the assumption of the
Assumed Liabilities by Buyer.
Section 4.4 Certain Prorations.
(a) The items set forth on Schedule 4.4(a) shall be
prorated or adjusted between the parties hereto as of the Effective Time.
(b) At Closing, each party shall pay or credit to the
other party all sums required to effectuate the prorations and adjustments
contemplated by the provisions of this Section 4.4. If final figures have not
been calculated on any of the adjustments, prorations or reimbursements as of
the Closing, then the parties hereto shall close this transaction using
estimated adjustments,
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prorations and reimbursements which shall be subject to later readjustment when
such final figures have been calculated. The parties hereto shall seek to
determine the amounts of all prorations, adjustments and reimbursements
required hereunder on or before the Closing, if possible, and no later than six
(6) months following the Closing.
Section 4.5 Inventory. Seller shall cause an inventory to be
taken of the Inventory as near in time as possible to the Closing with the
results extended and adjusted through the Closing Date. Such inventory process
shall be subject to audit.
Section 4.6 Closing Expenses.
(a) Seller shall be responsible for the following
expenses (i) obtaining, filing and recording any and all releases,
satisfactions, UCC termination statements and similar documents required in
order to cause title to the Purchased Assets to be free, clear and unencumbered
except for Permitted Encumbrances (as defined in Section 5.3 hereof); and (ii)
all sales, use, transfer and other taxes, if any, required by or imposed as a
result of the transactions contemplated hereby.
(b) Each party shall be responsible for its own
attorneys', accountants' and other advisory fees associated with the closing of
the transactions contemplated by this Agreement.
Section 4.7 Delivery of Closing Stock to Partners. Seller has
represented to Buyer and APPM that it intends, as soon as practicable after the
Closing to liquidate in accordance with Maryland law, and, in connection with
such liquidation, to distribute the purchase price less any appropriate
payments for partnership liabilities, to the Partners. Therefore, Seller has
requested that the Closing Stock be issued directly to the Partners. Within
three (3) days following the Closing Date, APPM will submit a letter to its
transfer agent requesting that the transfer agent issue to the Partners the
Closing Stock as described in Exhibit A.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER AND GENERAL PARTNERS
As an inducement to APPM and to Buyer to enter into this Agreement and
except as set forth and referenced in the Schedules, Seller and the General
Partners each represent and warrant, jointly and severally, to APPM and to
Buyer as follows:
Section 5.1 Organization and Good Standing; Qualification.
Seller is a limited partnership that has been duly organized and is validly
existing under the laws of the State of Maryland, with all requisite power and
authority (i) to own, operate and lease its assets and properties, (ii) to
carry on its business as currently conducted and as now contemplated, (iii) to
execute and deliver this Agreement, and (iv) to consummate the transactions
contemplated by this Agreement. Seller is not qualified to do business in any
foreign jurisdiction because it is not required to be qualified in any other
jurisdiction.
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Section 5.2 Authorization and Validity. Seller has all requisite
power to enter into this Agreement and all other agreements entered into in
connection with the transactions contemplated hereby, and to consummate the
transactions contemplated hereby. The execution, delivery, and performance by
Seller of this Agreement and the agreements contemplated herein, and the
consummation by Seller of the transactions contemplated hereby and thereby, are
within Seller's powers and have been duly authorized and approved by all
necessary action on the part of Seller's Partners. This Agreement has been
duly executed by Seller, and this Agreement and all other agreements and
obligations entered into and undertaken in connection with the transactions
contemplated hereby to which Seller is a party, constitute, or upon execution
will constitute, valid and binding agreements of Seller, enforceable against it
in accordance with their respective terms, except as enforceability may be
limited by bankruptcy or other laws affecting the enforcement of creditors'
rights generally, or by general equity principles, or by public policy.
Section 5.3 Title to Purchased Assets.
(a) Schedule 5.3(a) hereto sets forth a true, correct and
complete list of all claims, liabilities, liens, pledges, options, charges,
adverse claims, leases, licenses, rights to use or occupancy, security
interests, restrictions and encumbrances of any kind affecting the Purchased
Assets (collectively, the "Encumbrances").
(b) Seller has good, clear, record and marketable title
to, or valid leasehold interests in, all of the Purchased Assets, free and
clear of all Encumbrances, except as set forth in Schedule 5.3(b) hereto (the
"Permitted Encumbrances"), and, subject to the Permitted Encumbrances, Seller
has full power and right to sell, assign and deliver the Purchased Assets in
accordance with the terms of this Agreement. The delivery to Buyer of the
instruments of transfer of ownership contemplated by this Agreement shall vest
valid and marketable title to the Purchased Assets in the Buyer, free and clear
of all Encumbrances, except for the Permitted Encumbrances. Except for
Excluded Assets, there are no material assets used in the Business which are
not Purchased Assets.
Section 5.4 Condition of Tangible Assets. Except as set forth on
Schedule 5.4 hereto, the tangible Personal Property and any other tangible
Purchased Assets are in reasonable operating condition and are sufficient for
the operation of the Business as presently conducted, and, to the best
knowledge of Seller and the General Partners, are in conformity with all
applicable laws, ordinances, orders, regulations and other requirements
(including, without limitation, applicable occupational safety and health laws
and regulations) relating thereto currently in effect.
Section 5.5 Consents and Approvals. Except as set forth on
Schedule 5.5 hereto or addressed in Section 5.6, no consent, approval or
authorization of, notice to, or declaration, filing or registration with, any
person or entity is required to be made or obtained by Seller in connection
with its execution, delivery and performance of this Agreement and its
consummation of the transactions contemplated hereby.
Section 5.6 Governmental Authorization. Except as expressly set
forth in Schedule 5.6 hereto, and other than consents, filings or notifications
required to be made or obtained by Buyer or APPM, to the best knowledge of
Seller and the General Partners, the execution, delivery and
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performance by Seller of this Agreement and the agreements provided for herein,
and the consummation of the transactions contemplated hereby and thereby by
Seller, require no action by or in respect of, or filing with, any governmental
body, agency, official or authority.
Section 5.7 Continuity of Business Enterprise. Except as set
forth in Schedule 5.7 hereto, and except with respect to the Real Estate as
referenced in Section 2.2 hereof, there has not been any sale, distribution or
spin-off of significant assets of Seller other than in the ordinary course of
business within the two years preceding the date of this Agreement.
Section 5.8 Subsidiaries and Investments. Except as set forth in
Schedule 5.8 hereto, Seller does not own, directly or indirectly, any capital
stock or other equity, ownership or proprietary interest in any corporation,
partnership, association, trust, joint venture or other entity (each a "Seller
Subsidiary").
Section 5.9 Absence of Conflicting Agreements or Required
Consents. Subject to approval of this Agreement by the Partners of Seller, the
execution, delivery and performance by Seller of this Agreement and any other
documents contemplated hereby (with or without the giving of notice, the lapse
of time, or both): (i) except as set forth in Schedule 5.5, Schedule 5.6 or
Schedule 5.9 hereto, do not require the consent of any governmental or
regulatory body or authority or any other third party, except for such consents
for which the failure to obtain would not reasonably be expected to result in a
Material Adverse Effect on the Business and the Purchased Assets; (ii) will not
conflict with or result in a violation of any provision of Seller's limited
partnership agreement; (iii) will not conflict with, result in a violation of,
or constitute a default under, any law, rule, ordinance, or regulation, or any
ruling, decree, determination, award, judgment, order or injunction of any
court or governmental instrumentality which is applicable to Seller or by which
Seller or its properties are subject or bound, except for such conflict,
violation or default the occurrence of which would not reasonably be expected
to result in a Material Adverse Effect on the Business and the Purchased
Assets; (iv) except as set forth in Schedule 5.9, will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, require any notice under, or accelerate or modify, or permit any
person to accelerate or modify, any performance required by the terms of, any
agreement, instrument, license or permit material to this transaction, to which
Seller is a party or by which Seller or any of its properties are subject or
bound, except for such conflict, termination, breach, or default, the
occurrence of which would not reasonably be expected to result in a Material
Adverse Effect on the Business and the Purchased Assets; and (v) will not
create any Encumbrance or restriction upon any of the assets or properties of
Seller.
Section 5.10 Seller Financial Statements. Attached hereto as
Schedule 5.10 are (i) the compiled statements of assets, liabilities, and
partners' capital, income tax basis, of the Company as of December 31, 1997,
and the related statements of revenues, expenses, partners' capital and cash
flows, income tax basis for the year ended December 31, 1997 (collectively,
the "Seller Annual Financial Statements") and (ii) the compiled consolidated
statement of assets, liabilities, partners' capital as of June 30, 1998 (the
"Seller Current Balance Sheet") and the related statements of income, and
statements of cash flows of Seller for the six (6) month period then ended
(collectively, the "Seller Current Financial Statements"). Seller Annual
Financial Statements and Seller Current Financial Statements are sometimes
collectively referred to herein as the "Seller Financial
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Statements." Seller Annual Financial Statements (a) have been prepared in
accordance with the cash method of accounting (except as may be indicated
therein or in the notes thereto), (b) present fairly the financial position of
Seller as of the dates indicated and present fairly the results of Seller's
operations for the periods then ended, and (c) are in accordance with the books
and records of Seller, which have been properly maintained and are complete and
correct in all material respects. Seller Current Financial Statements present
fairly the financial position of Seller as at the dates thereof and the results
of its operations and changes in financial position for the periods then ended,
subject to normal year-end adjustments (the effect of which will not
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect on Seller) and lack of footnotes thereto.
Section 5.11 No Undisclosed Liabilities. Except as listed in
Schedule 5.11 hereto, Seller does not have any liabilities or obligations of
any nature, whether known or unknown and whether accrued, absolute, contingent
or otherwise, asserted or unasserted except for liabilities or obligations
reflected or reserved against in Seller's Current Balance Sheet.
Section 5.12 Litigation and Claims. Except as listed in Schedule
5.12 hereto, there are no claims, lawsuits, actions, arbitrations,
administrative or other proceedings, governmental investigations or inquiries
pending or, to the best knowledge of Seller and the General Partners,
threatened, against Seller that could adversely affect the operations, business
condition (financial or otherwise), or results of operations or the prospects
of Seller and which (i) if successful, individually or in the aggregate,
reasonably would be expected to have a Material Adverse Effect on Seller, or
(ii) if successful, reasonably would be expected to materially adversely affect
the ability of Seller to effect the transactions contemplated hereby. There
are no unsatisfied judgments against Seller or any consent decrees to which
Seller is subject. Except as set forth in Schedule 5.12, each of the matters,
if any, set forth in Schedule 5.12 (collectively, the "Litigation") is fully
covered by policies of insurance of Seller as in effect on the date hereof.
Section 5.13 No Violation of Law. Seller has not been, nor shall
be as of the Closing Date (by virtue of any action, omission to act, contract
to which it is a party, or any occurrence or state of facts whatsoever), in
violation of any applicable local, state or federal law, ordinance, regulation,
order, injunction or decree, or any other requirement of any governmental body,
agency, authority or court binding on it, or relating to its properties, assets
or business or its advertising, sales or pricing practices, except for
violations which reasonably, individually or in the aggregate, would not have a
Material Adverse Effect on Seller.
Section 5.14 Contracts and Commitments.
(a) Schedule 5.14 contains a true, accurate and complete
list, and Seller has delivered to Buyer true and complete copies, of each
contract, agreement and other instrument (other than insurance contracts
identified in Schedule 5.24 or Lease Agreements identified in Schedule 5.20),
to which Seller is a party or by which it or any of its properties or assets
are bound including, without limitation, (i) all agreements between Seller, on
the one hand, then in effect, and any Payor, government entity, provider,
hospital, health maintenance organization, other managed care organization or
other third-party provider, on the other hand, relating to the provision of
medical, diagnostic imaging or consulting services, treatments, patient
referrals or other similar activities, (ii)
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all indentures, mortgages, notes, loan or credit agreements and other
agreements and obligations relating to the borrowing of money or to the direct
or indirect guarantee or assumption of obligations of third parties requiring
Seller to make, or setting forth conditions under which Seller would be
required to make, future payments in excess of $10,000 in any fiscal year or
$25,000 in the aggregate, (iii) all agreements for capital improvements or
acquisitions involving an amount of $10,000 in any fiscal year or $25,000 in
the aggregate, (iv) all agreements containing a covenant limiting the freedom
of Seller to compete in any line of business with any person or entity or in
any geographic area, or (v) all written contracts and commitments providing for
future payments by Seller in excess of $10,000 in any fiscal year or $25,000 in
the aggregate and that are not cancelable by providing notice of sixty (60)
days or less. Except as noted in Schedule 5.14, (1) no party to any such
contract, agreement, or other instrument has delivered written notification to
any other party challenging its effectiveness or validity; (2) to the best
knowledge of Seller and the General Partners, there has been no threatened
cancellation thereof; (3) there are no outstanding disputes thereunder; (4)
each is with unrelated third parties and was entered into on an arms-length
basis in the ordinary course of business; and (5) assuming the receipt of the
appropriate consents, each constituting an Assumed Contract, will continue to
be in full force and effect and binding in accordance with their terms after
consummation of the transaction contemplated herein, except as enforceability
may be limited by bankruptcy or other laws affecting the enforcement of
creditor's rights generally, or by general equity principles, or by public
policy. Except as noted in Schedule 5.14, there are no contracts, agreements
or other instruments to which Seller is a party or is bound (other than
physician employment contracts, insurance policies and the lease agreements)
which could, either singularly or in the aggregate, be reasonably expected to
have a Material Adverse Effect on the value to Buyer of the Purchased Assets,
or which could inhibit or prevent Seller from transferring to or vesting in
Buyer good and sufficient title to the Purchased Assets. Notwithstanding the
foregoing, Seller shall not transfer to Buyer any contracts or agreements
relating to the provision of professional medical services or other such
agreements and contracts that Buyer consents to in writing to be retained by
Seller. Except as set forth in Schedule 5.14, no contract with a health care
provider or Payor has been materially amended or terminated within the last
twelve (12) months.
(b) Except as disclosed in Schedule 5.14, (i) Seller has
not received written notice of any plan or intention of any other party to
exercise any right to cancel or terminate such contract, agreement or
instrument, and, to the best knowledge of Seller and the General Partners,
Seller is not aware of any fact(s) that would justify the exercise of such a
right; and (ii) Seller does not currently contemplate, and, to the best
knowledge of Seller and the General Partners, no other Person currently
contemplates, any amendment or change to any such contract, agreement or
instrument.
Section 5.15 No Brokers. Seller has not entered into and will not
enter into any agreement, arrangement or understanding with any Person or firm
which will result in the obligation of Buyer to pay any finder's fee, brokerage
commission or similar payment.
Section 5.16 No Other Agreements to Sell the Assets of the
Business. Seller does not have any legal obligation, absolute or contingent,
to any other individual or entity to sell any of the Purchased Assets (other
than agreements for the sale of Inventory in the ordinary course), or to effect
any sale of the Business or to enter into any agreement with respect thereto.
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Section 5.17 Employee Matters.
(a) Employment Contracts. Except as set forth in
Schedule 5.17 and Schedule 5.19 hereto, Seller is not currently a party to any
employment contract (except for oral employment agreements which are terminable
at will), consulting or collective bargaining contracts, deferred compensation,
pension plan (as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended, and all rules and regulations from time to
time promulgated thereunder ("ERISA")), profit sharing, bonus, stock option,
stock purchase or other nonqualified benefit or compensation commitments,
benefit plans, arrangements or plans (whether written or oral), including all
welfare plans (as defined in Section 3(1) of ERISA) of or pertaining to Seller
and any of its present or former employees, or any predecessors in interest.
(b) Employees. As of August 15, 1998, Seller employed a
collective total of three (3) full-time employees. Schedule 5.17 lists each
employee of, or consultant to, Seller who received combined salary, benefits
and bonuses for 1997 in excess of $50,000 or who is expected to receive
combined salary, benefits and bonuses in 1998 in excess of $50,000. Seller is
not delinquent in payment to any of its employees for wages, salaries, bonuses
or other direct compensation for any services performed for it to the date
hereof or amounts required to be reimbursed to such employees.
(c) Severance Arrangements. Except as set forth on
Schedule 5.17, upon termination of employment of any employee, no severance or
other payments will become due, and Seller has no policy, past practice, or
plan of paying severance on termination of employment.
Section 5.18 Labor Relations. Except to the extent set forth in
Schedule 5.18 hereto:
(a) To the best knowledge of Seller and the General
Partners, no executive, key employee or group of employees has any plans to
terminate employment with Seller, except by reason of terminating such
relationship by becoming an employee of Buyer in connection with Buyer's
purchase of the Business pursuant hereto;
(b) There is no unfair labor practice, charge or
complaint or any other employment-related matter against or involving Seller
pending, or, to the best knowledge of Seller and the General Partners,
threatened, before the National Labor Relations Board or any other federal,
state or local agency, authority or court;
(c) There are no charges, investigations, administrative
proceedings or formal complaints of discrimination (including discrimination
based upon sex, age, marital status, race, national origin, the making of
workers' compensation claims, sexual preference, handicap or veteran status)
pending, or, to the best knowledge of Seller and the General Partners,
threatened, before the Equal Employment Opportunity Commission or any other
federal, state or local agency or court against Seller. There have been no
governmental audits of the equal employment opportunity practices of Seller,
and, to the best knowledge of Seller and the General Partners, no basis for any
such audit exists; and
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(d) To the best knowledge of Seller and the General
Partners, there are no inquiries, investigations or monitoring activities of
any licensed, registered, or certified professional personnel employed or
retained by Seller pending or threatened by any state professional board or
agency charged with regulating the professional activities of health care
practitioners.
Section 5.19 Employee Benefit Plans.
(a) Identification. Schedule 5.19 hereto contains a
complete and accurate list and description of all employee benefit plans
(within the meaning of Section 3(3) of ERISA) sponsored by Seller or to which
Seller contributes on behalf of its employees and all employee benefit plans
previously sponsored or contributed to on behalf of its employees within the
three years preceding the date hereof (the "Employee Benefit Plans"). Seller
has provided to Buyer copies of all current plan documents (as they may have
been amended to the date hereof), determination letters, pending determination
letter applications, trust instruments, insurance contracts or policies related
to an Employee Benefit Plan, administrative services contracts, annual reports
for the immediately preceding three (3) years, actuarial valuations, summary
plan descriptions, summaries of material modifications, administrative forms
and other documents that constitute a part of or are incident to the
administration of the Employee Benefit Plans. Except as set forth in Schedule
5.19 and subject to the requirements of ERISA, each of the Employee Benefit
Plans can be terminated or amended at will by Seller without any further
liability or obligation on the part of Seller to make further contributions or
payments in connection therewith following such termination except to the
extent of any benefits accrued through the date of termination which accrued
benefits shall be paid by Seller. Except as set forth in Schedule 5.19, no
unwritten amendment exists with respect to any Employee Benefit Plan.
(b) Administration. Each Employee Benefit Plan has been
administered and maintained in compliance with all applicable laws, rules and
regulations, except where the failure to be in compliance would not,
individually or in the aggregate, result in a Material Adverse Effect.
(c) Examinations. Except as set forth in Schedule 5.19,
neither Seller nor any General Partner has received any written notice that any
Employee Benefit Plan is currently the subject of an audit, investigation,
enforcement action or other similar proceeding conducted by any state or
federal agency or authority.
(d) Prohibited Transactions. No prohibited transactions
(within the meaning of Section 4975 of the Code or Section 406 of ERISA) have
occurred with respect to any Employee Benefit Plan. There has been no breach
of any duty under ERISA or applicable law (including, without limitation, any
health care contractor requirements or any other tax law requirements, or
conditions to favorable tax treatment, applicable to such plan), which would be
reasonably likely to result, directly or indirectly (including through any
obligation of indemnification or contribution), in any taxes, penalties or
other liability to APPM or any of its Affiliates.
(e) Claims and Litigation. Except as set forth in
Schedule 5.19, no pending, or, to the best knowledge of Seller and the General
Partners, threatened, claims, suits or other
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proceedings exist with respect to any Employee Benefit Plan other than normal
benefit claims filed by participants or beneficiaries.
(f) Qualification. Except as set forth on Schedule 5.19,
Seller has received a favorable determination letter or ruling from the IRS for
each of the Employee Benefit Plans intended to be qualified within the meaning
of Section 401(a) or 501(c)(9) of the Code and/or tax-exempt within the meaning
of Section 501(a) of the Code, and, to the best knowledge of Seller and the
General Partners, such Employee Benefit Plan has been continually qualified
under the applicable Section of the Code since the effective date of such
Employee Benefit Plan. No proceedings are pending, or, to the best knowledge
of Seller and the General Partners, have been threatened, that could result in
the revocation of any such favorable determination letter or ruling.
(g) Funding Status. Except as set forth in Schedule
5.19, no accumulated funding deficiency (within the meaning of Section 412 of
the Code), whether waived or unwaived, exists with respect to any Employee
Benefit Plan or any plan sponsored by any member of a controlled group (within
the meaning of Section 412(n)(6)(B) of the Code) in which Seller is a member (a
"Controlled Group"). Neither Seller nor any member of a Controlled Group
maintains or has ever maintained an Employee Benefit Plan subject to Title IV
of ERISA or an Employee Benefit Plan described in Section 501(c)(9) of the
Code.
(h) Excise Taxes. Neither Seller nor any member of a
Controlled Group has any liability to pay excise taxes with respect to any
Employee Benefit Plan under applicable provisions of the Code or ERISA.
(i) Multi-employer Plans. Neither Seller nor any member
of a Controlled Group is or ever has been obligated to contribute to a
multi-employer plan within the meaning of Section 3(37) of ERISA or any other
Employee Benefit Plan which has been subject to Title IV of ERISA or Section
412 of the Code.
(j) PBGC. No facts or circumstances are known to Seller
or the General Partners that would be reasonably likely to result in the
imposition of liability against APPM, Buyer or any of its Affiliates by the
Pension Benefit Guaranty Corporation ("PBGC") as a result of any act or
omission by Seller or any member of a Controlled Group. To the best knowledge
of Seller and the General Partners, no reportable event (within the meaning of
Section 4043 of ERISA), for which the notice requirement has not been waived,
has occurred with respect to any Employee Benefit Plan subject to the
requirements of Title IV of ERISA.
(k) Retirees. Seller has no obligation or commitment to
provide medical, dental or life insurance benefits to or on behalf of any of
its employees who may retire or any of its former employees who have retired
except as may be required pursuant to the continuation of coverage provisions
of Section 4980B of the Code and the applicable provisions of ERISA.
(l) Other Compensation Arrangements. Except as set forth
in Schedule 5.19, Seller is not a party to any compensation or debt arrangement
with any person relating to the provision of health care related services other
than arrangements with Seller or to which Seller is a party.
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Section 5.20 Lease Agreements. Schedule 5.20 hereto contains a
true, accurate and complete list of all the lease agreements and license
agreements to which Seller is a party and pursuant to which Seller leases
(whether as lessor or lessee) or licenses (whether as licensor or licensee) any
real or personal property related to the operation of its business and which
requires payments in excess of $10,000 per year (the "Lease Agreements").
Seller has delivered to Buyer true and complete copies of all of the Lease
Agreements. There is not under any Lease Agreement (i) any existing or claimed
material default by Seller, or event which, with notice or lapse of time, or
both, would constitute a material default by Seller, which, individually or in
the aggregate, may reasonably be expected to result in a Material Adverse
Effect on Seller, or (ii) to the best knowledge of Seller and the General
Partners, any existing material default by any other party under any of the
Lease Agreements or any event which, with notice or lapse of time, or both,
would constitute a material default by any such party. There is no pending,
or, to the best knowledge of Seller and the General Partners, threatened,
reassessment of any property covered by the Lease Agreements. Seller has a
good, clear, valid and enforceable, except as enforceability may be limited by
bankruptcy or other laws affecting the enforcement of creditors' rights
generally, or by general equity principles, or by public policy, leasehold
interest under each of the Lease Agreements. The Lease Agreements are in
compliance with all applicable safe harbor provisions promulgated by the
Department of Health and Human Services in connection with the enforcement of
the federal Fraud and Abuse ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ Part 1001 and any similar
applicable state law safe harbor or other exemption provisions. Neither Seller
nor, to the best knowledge of Seller and the General Partners, any other party
thereto, has challenged the validity or effectiveness of any Lease Agreement.
Section 5.21 Real and Personal Property.
(a) Except for the Real Property, Seller does not own any
interest in real property.
(b) Except as set forth in Schedule 5.3 hereto and except
for the Real Property excluded in accordance with Section 2.2 hereof, Seller
(i) has good and marketable title to all of its properties and assets (real,
personal and mixed, tangible and intangible) and any rights or interests
therein which it purports to own including, without limitation, all the
property and assets reflected in Seller Financial Statements; and (ii) owns
such rights, interests, assets and property free and clear of all Encumbrances,
title defects or objections (except for taxes not yet due and payable and the
Permitted Encumbrances). Seller Financial Statements reflect all personal
property used in connection with the operation of the Business subject to
disposition in the ordinary course of business and such personal property are
the necessary assets to continue operation of Seller.
Section 5.22 Environmental Matters.
(a) Seller has not, within the five (5) years preceding
the date hereof through the Effective Time, received from any federal, state or
local governmental body, agency, authority or entity, or any other Person, any
written notice, demand, citation, summons, complaint or order or
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any written notice of any penalty, lien or assessment, and, to the best
knowledge of Seller and the General Partners, no investigation or review is
pending by any governmental entity, with respect to any (i) alleged violation
by Seller of any Environmental Law (as defined in subsection (e) below); (ii)
alleged failure by Seller to have any environmental permit, certificate,
license, approval, registration or authorization required pursuant to any
Environmental Law in connection with the conduct of its Business; or (iii)
alleged illegal Regulated Activity (as defined in subsection (e) below) by
Seller.
(b) Seller has not used, transported, disposed of, or
arranged for the disposal of (as those terms are defined in and construed under
the Comprehensive Environmental Response, Compensation and Liability Act), any
Hazardous Substance (as defined herein) in a manner that would be reasonably
likely to give rise to any Environmental Liabilities (as defined in subsection
(e) below) for Seller under any applicable Environmental Law that had, or would
reasonably be likely to have, a Material Adverse Effect on Seller. Seller has
not engaged in any activity, or failed to undertake any activity, which action
or failure to act has given, or would reasonably be likely to give, rise to any
Environmental Liabilities or enforcement action by any federal, state or local
regulatory agency or authority, or has resulted, or would reasonably be likely
to result, in any fine or penalty imposed pursuant to any Environmental Law
that had, or would reasonably be likely to have, a Material Adverse Effect on
Seller. Schedule 5.22 hereto discloses, to the best knowledge of Seller and
the General Partners, any presence of asbestos in or on Seller's owned or
leased premises.
(c) To the best knowledge of Seller and the General
Partners, no soil or water in or under any assets currently or formerly held
for use or sale by Seller is or has been contaminated by any Hazardous
Substance while such assets or premises were owned, leased, operated or
managed, directly or indirectly, by Seller where such contamination had, or
would be reasonably likely to have, a Material Adverse Effect on Seller.
(d) Schedule 5.22 contains a list of all environmental
audits and other similar reports which have been prepared by, for, or, to the
best knowledge of Seller and the General Partners, concerning, Seller, within
the five (5) years preceding the date hereof through the Effective Time, with
respect to any real property now or previously owned or leased by Seller, or
any of its predecessors, true and complete copies of which have been provided
to Buyer.
(e) For the purposes of this Section 5.22, the following
terms have the following meanings:
"Environmental Laws" shall mean any and all domestic, federal,
state and local laws (including case law), regulations, ordinances,
rules, judgments, orders, decrees, codes, injunctions and permits
relating to the environment or to emissions, discharges or releases of
Hazardous Substances into the environment or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances or the
clean-up or other remediation thereof.
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"Environmental Liabilities" shall mean all liabilities of
Seller, whether contingent or fixed, which (i) have arisen, or would
reasonably be likely to arise, under Environmental Laws and (ii)
relate to actions occurring or conditions existing on or prior to the
date hereof or the Effective Time.
"Hazardous Substances" shall mean any air pollution, toxic,
radioactive, caustic or otherwise hazardous substance regulated by any
Environmental Law, (including but not limited to (i) Medical Waste and
(ii) petroleum, its derivatives, by-products and other hydrocarbons),
and any material constituent elements thereof displaying any of the
foregoing characteristics.
"Regulated Activity" shall mean any generation, treatment,
storage, recycling, transportation, disposal or release of any
Hazardous Substances.
Section 5.23 Filing Reports. All returns, reports, plans and
filings of any kind or nature necessary to be filed by Seller with any
governmental agency or authority have been properly completed and timely filed
in compliance with all applicable requirements, except where failure to so file
would not have a Material Adverse Effect on Seller.
Section 5.24 Insurance Policies. Schedule 5.24 hereto lists and
briefly describes Seller's policies of insurance to which Seller is a party or
under which Seller is or has been covered at any time during the last five (5)
years preceding the date of this Agreement relating to the Business of Seller
(the "Insurance Policies"). All premiums with respect to the Insurance
Policies are currently paid. All Insurance Policies currently maintained by
Seller ("Current Policies"), taken together, (i) are sufficient for compliance
with legal and contractual requirements to which Seller is a party or by which
Seller may be bound, and (ii) shall be maintained in force (including the
payment of all premiums and compliance with their terms) without interruption
up to and including the Closing Date. True, complete and correct copies of all
Current Policies have been provided to Buyer. Except as set forth in Schedule
5.24, Seller has not received any written notice or other written communication
from any issuer of any Current Policy canceling such policy, materially
increasing any deductibles or retained amounts thereunder, or materially
increasing the annual or other premiums payable thereunder, and, to the best
knowledge of Seller and the General Partners, no such cancellation or increase
of deductibles, retainages or premiums is threatened. Except as set forth in
Schedule 5.24, there are no outstanding claims, settlements or premiums owed
against any Insurance Policy, and all required notices have been given, and all
known potential or actual claims under any Insurance Policy have been
presented, in due and timely fashion. Except as set forth in Schedule 5.24,
since January 1, 1993, neither Seller nor any Affiliate thereof has filed a
written application for any professional liability insurance coverage which has
been denied by an insurance agency or carrier. Schedule 5.24 also sets forth a
list of all claims under any Insurance Policy in excess of $10,000 per
occurrence filed by Seller during the immediately preceding three-year period.
Section 5.25 Accounts Receivable; Payors.
(a) Attached hereto as Schedule 5.25(a) is a list and
aging of all accounts receivable of Seller as of August 31, 1998, which list is
complete, true and accurate in all material
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respects. All such accounts receivable arose in the ordinary course of
business and have not been previously written off as bad debts, and, are, to
the extent still uncollected, collectible in the ordinary course of business,
net of reserves for doubtful and uncollectible accounts shown in Seller
Financial Statements or on the accounting records of Seller (which reserves are
adequate and calculated consistent with past practice). Nothing contained
herein shall be deemed a guarantee of collection with respect to the accounts
receivable.
(b) Schedule 5.25(b) hereto sets forth a true, correct
and complete list of the names and addresses of each Payor including, but not
limited to, all private-pay patients as a single Payor, of Seller which
accounted for more than five percent (5%) of the revenues of Seller in the
fiscal year ended December 31, 1997, or which is reasonably expected to account
for more than five percent (5%) of the revenues of Seller for the fiscal year
to end December 31, 1998. Except as set forth in Schedule 5.25(b), Seller has
satisfactory relations with such Payors, and, to the best knowledge of Seller
and the General Partners, none of such Payors has notified Seller that it
intends to discontinue its relationship with Seller or to deny any payments due
from, or any claims for payment submitted to, any such party.
Section 5.26 Accounts Payable; Suppliers.
(a) Attached hereto as Schedule 5.26(a) is a true and
complete (i) list of the accounts payable of Seller as of August 31, 1998, and
(ii) list of each individual indebtedness of $10,000 or more, setting forth the
payee and the amount of indebtedness.
(b) Schedule 5.26(b) sets forth a true, correct and
complete list of the names and addresses of each of the providers/suppliers of
products or services to Seller which accounted for a dollar volume of
purchases paid for by Seller in excess of $10,000 for the fiscal year ended
December 31, 1997, or which is reasonably expected to account for a dollar
volume of purchases paid for by Seller in excess of $10,000 for the fiscal year
to end December 31, 1998.
Section 5.27 Inventory. All items of inventory on Seller Current
Balance Sheet contained in Seller Financial Statements consisted, and all such
items on hand on the date of this Agreement consist, net of all applicable
reserves with respect thereto (calculated consistent with past practice), of
items of a quality and a quantity usable and saleable in the ordinary course of
Seller's Business and conform to generally accepted standards in the industry
of which Seller is a part. The amount of Seller's inventory is reasonably
consistent with Seller's inventory levels over the twelve (12) month period
immediately preceding the Effective Date. The value of the inventories
reflected on Seller Current Balance Sheet contained in Seller Financial
Statements are net of adequate reserves for damaged, excess, and unusable
items. Purchase commitments of Seller for inventory are not materially in
excess of normal requirements, and, to the best knowledge of Seller and the
General Partners, none of such purchase commitments are at prices materially in
excess of prevailing market prices at the time of such purchase commitment.
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Section 5.28 Licenses, Authorization and Provider Programs.
(a) Except as listed in Schedule 5.28(a) hereto, Seller,
and, to the best knowledge of Seller and the General Partners, each licensed
employee or independent contractor of Seller, (i) is the holder of all valid
licenses, approvals, orders, consents, permits, registrations, qualifications
and other rights and authorizations required by law, ordinance, regulation or
ruling of any governmental regulatory authority necessary to operate
its/his/her business, and (ii) is eligible to participate under Titles XVIII
and XIX of the Social Security Act for Maryland, Virginia and Washington, D.C.
(the "Medicare and Medicaid Programs") (Medicare and Medicaid Programs and such
other similar federal, state or local reimbursement or governmental programs
for which Seller is eligible are hereinafter referred to, collectively, as the
"Governmental Programs"), and (iii) has current provider numbers for such
Governmental Programs and with such private non-governmental programs
(including without limitation any private insurance program) under which Seller
is presently receiving payments directly or indirectly from any Payor for
patient care (such non-governmental programs herein referred to as "Private
Programs"). A true, correct and complete list of such licenses, permits and
other authorizations, and provider agreements, is set forth in Schedule
5.28(a), true, complete and correct copies of which have been provided to APPM.
No violation, default, order or deficiency exists with respect to any of the
items listed in Schedule 5.28(a) except for such violations, defaults, orders
or deficiencies which would not be reasonably likely to have a Material Adverse
Effect on Seller, and there is no action pending, or, to the best knowledge of
Seller and the General Partners, threatened, by any state or federal agencies
having jurisdiction over the items listed in Schedule 5.28(a), either to
revoke, withdraw or suspend any material license or to terminate the
participation of Seller in any Governmental Program or Private Program, and, to
the best knowledge of Seller and the General Partners, no event has occurred
which, with or without notice or lapse of time, or both, would constitute
grounds for a violation, order or deficiency with respect to any of the items
listed in Schedule 5.28(a) or to revoke, withdraw or suspend any material
license to operate its Business as is presently being conducted by it. To the
best knowledge of Seller and the General Partners, there has been no decision
not to renew any existing agreement with any provider or Payor relating to
Seller's Business as presently being conducted by it. Except as set forth in
Schedule 5.28(a) or Schedule 5.12, neither Seller nor the Business (i) has had
his/her/its professional license, Drug Enforcement Agency number,
Medicare/Medicaid provider status or staff privileges at any hospital or
diagnostic imaging center suspended, relinquished, terminated or revoked, (ii)
has been reprimanded, sentenced, or disciplined by any licensing board, state
agency, regulatory body or authority, hospital, Payor or specialty board, or
(iii) has had a final judgment or settlement entered against him/her/its in
connection with a malpractice or similar action.
(b) Except as set forth in Schedule 5.28(b), Seller is
not required, and for the 72-month period prior to the Effective Time was not
required, to file any cost reports or other reports with any Governmental
Program or Private Program.
Section 5.29 Inspections and Investigations. Neither the right of
Seller, nor, to the best knowledge of Seller and the General Partners, the
right of any licensed professional or other individual employed or retained by
Seller, to receive reimbursements pursuant to any Governmental Program or
Private Program has been terminated or otherwise materially and adversely
affected as
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a result of any investigation or action whether by any federal or state
governmental regulatory authority or other third party. Except as set forth
and described in Schedule 5.29 hereto, to the best knowledge of Seller and the
General Partners, no licensed professional or other individual affiliated with
the Business has, during the past three (3) years prior to the Effective Time,
had their professional license suspended or revoked by any governmental
regulatory authority or agency, hospital, integrated delivery system, trade
association, professional review organization, accrediting organization or
certifying agency. True, correct and complete copies of all reports,
correspondence, notices and other documents relating to any matter described or
referenced in Schedule 5.29 have been provided to Buyer.
Section 5.30 Proprietary Rights and Information.
(a) Set forth in Schedule 5.30(a) hereto are a complete
and accurate list and summary description of the following: (i) all trademarks
(registered and unregistered), trade names, service marks and other trade
designations, including common law rights, registrations and applications
therefor, currently owned in whole or part, or used by Seller, (ii) all patents
and applications therefor, and inventions and discoveries that may be
patentable, currently owned, in whole or in part, or used by Seller, (iii) all
licenses, royalties, and assignments thereof to which Seller is a party, (iv)
all copyrights (for published and unpublished works) currently owned, in whole
or part, or used by Seller, and (v) other similar agreements relating to the
foregoing to which Seller is a party (including expiration date if applicable)
(collectively, the "Proprietary Rights").
(b) Schedule 5.30(b) contains a complete and accurate
list and summary description of all agreements relating to technology, trade
secrets, know-how or processes that Seller is licensed or authorized to use by
others (other than technology, know-how or processes generally available to
other health care providers) or which it licenses or authorizes others to use;
true, correct and complete copies of which have been provided to Buyer or APPM.
There are no outstanding, and, to the best knowledge of Seller and the General
Partners, no threatened, disputes or disagreements with respect to any such
agreement.
(c) Seller owns or has the legal right to use the
Proprietary Rights without conflicting with, infringing or violating the rights
of any other person. Except as disclosed in Schedule 5.30(c), no consent of
any Person will be required for the use thereof by Buyer or APPM upon
consummation of the transactions contemplated hereby and the Proprietary Rights
are freely transferable. To the best knowledge of Seller and the General
Partners, no claim has been asserted by any person to the ownership of, or for
infringement by Seller of, any Proprietary Right of any other Person, and
Seller is not aware of any valid basis for any such claim. To the best
knowledge of Seller and the General Partners, no proceedings have been
threatened which challenge the Proprietary Rights of Seller. Seller has the
right to use, free and clear of any adverse claims or rights of others, all
trade secrets, customer lists and proprietary information required for the
performance and marketing of all merchandise and services formerly or presently
sold or marketed by Seller.
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Section 5.31 Taxes.
(a) Filing of Tax Returns. Seller has duly and timely
filed (in accordance with any extensions duly granted by the appropriate
governmental agency, if applicable) with the appropriate governmental agencies
all Tax Returns required to be filed by the United States or any state or any
political subdivision thereof or any foreign jurisdiction. All such Tax
Returns are complete and accurate in all material respects and properly reflect
the taxes of Seller for the periods covered thereby.
(b) Payment of Taxes. Except for such items as Seller
may be disputing in good faith by proceedings in compliance with applicable
law, which are described in Schedule 5.31(b) hereto, (i) Seller has paid all
taxes, penalties, assessments and interest that have become due with respect to
any Tax Returns that it has filed ("Taxes"), and has properly accrued on its
books and records in accordance with the cash method of accounting for all of
the same that have not yet become due and payable, and (ii) Seller is not
delinquent in the payment of any tax, assessment or governmental charge.
(c) No Pending Deficiencies, Delinquencies, Assessments
or Audits. Except as set forth in Schedule 5.31(c) hereto, Seller has not
received any notice that any tax deficiency or delinquency has been asserted
against Seller, and, to the best knowledge of Seller and the General Partners,
there is no threat of such assertion. There is no unpaid assessment, proposal
for additional taxes, deficiency, or delinquency in the payment of any of the
taxes of Seller that could reasonably be likely to be asserted by any taxing
authority. There is no taxing authority audit of Seller pending, or to the
best knowledge of Seller and the General Partners, threatened, and the results
of any completed audits are properly reflected in Seller Financial Statements.
Seller has not violated any applicable federal, state, local or foreign tax
law. There are no security interests or liens on any assets of Seller which
have resulted from any failure to pay (or alleged failure to pay) taxes.
(d) No Extension of Limitation Period. Seller has not
granted an extension to any taxing authority of the statute of limitation
period during which any tax liability may be assessed or collected.
(e) All Withholding Requirements Satisfied. All monies
required to be withheld by Seller and paid to governmental agencies for all
income, social security, unemployment insurance, sales, excise, use, and other
taxes have been collected or withheld and paid to the respective governmental
agencies.
(f) Foreign Person. Neither Seller nor any General
Partner is a foreign person, as such term is referred to in Section 1445(f)(3)
of the Code and Treasury Regulations Section 1.1445-2.
(g) Safe Harbor Lease. None of the properties or assets
of Seller constitutes property that Seller, APPM, Buyer or any Affiliate of
APPM, will be required to treat as being owned by another person pursuant to
the "Safe Harbor Lease" provisions of Section 168(f)(8) of the Code prior to
repeal by the Tax Equity and Fiscal Responsibility Act of 1982.
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(h) Tax Exempt Entity. None of the assets or properties
of Seller are subject to a lease to a "tax exempt entity" as such term is
defined in Section 168(h)(2) of the Code.
(i) Collapsible Corporation. Seller has not at any time
consented to have the provisions of Section 341(f)(2) of the Code apply to it.
(j) Boycotts. Seller has not at any time participated in
or cooperated with any international boycott as defined in Section 999 of the
Code.
(k) Parachute Payments. No payment required or
contemplated to be made by Seller will be characterized as an "excess parachute
payment" within the meaning of Section 280G(b)(1) of the Code.
(l) S Corporation. Seller has not made an election to be
taxed as an "S" corporation under Section 1362(a) of the Code.
(m) Personal Holding Companies. Seller is not or has not
been a personal holding company within the meaning of Section 542 of the Code.
Section 5.32 Related Party Arrangements. Schedule 5.32 hereto
sets forth a description of any interest held, directly or indirectly, by any
General Partner of Seller in any property, real or personal or mixed, tangible
or intangible, used in or pertaining to Seller's Business and any arrangement
or agreement with any such person concerning the provision of goods or services
or other matters pertaining to Seller's Business. There is no commitment to,
and no income reflected in Seller Financial Statements that has been derived
from, an Affiliate, and following the Closing, Seller shall not have any
obligation of any kind or designation to any such Affiliate.
Section 5.33 Banking Relations. Set forth in Schedule 5.33 hereto
is a complete and accurate list of all borrowing and investing arrangements
that Seller has with any bank or other financial institution, indicating with
respect to each relationship, the type of arrangement maintained (such as
checking account, borrowing arrangements, safe deposit box, etc.) and the
Person or Persons authorized in respect thereof.
Section 5.34 Fraud and Abuse and Self Referral. Neither Seller
nor any of the General Partners has engaged, and, to the best knowledge of
Seller, no Persons and entities providing professional services for or on
behalf of Seller have engaged, in any activities which are prohibited under 42
U.S.C. 1320a 7, 7a or 7b, or 42 U.S.C. 1395nn, or (subject to the exceptions or
safe harbor provisions set forth in such legislation) the regulations
promulgated thereunder or pursuant to any similar state or local statutes or
regulations, or which are prohibited by applicable rules of professional
conduct.
Section 5.35 Restrictions on Business Activities. Except as
disclosed in Schedule 5.14 or Schedule 5.35 hereto, there is no material
agreement, judgment, injunction, order or decree binding upon Seller or the
General Partners, or, to the best knowledge of Seller and the General Partners,
key employee of Seller, which has or reasonably could be expected to have a
Material Adverse Effect on the Business.
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Section 5.36 Agreements in Full Force and Effect. Except as
expressly set forth in Seller's Schedules to this Agreement, to the best
knowledge of Seller and the General Partners, all contracts, agreements, plans,
leases, policies and licenses referred to, or required to be referred to, in
Seller's Schedules delivered hereunder are valid and binding, and are in full
force and effect, and are enforceable in accordance with their terms, except to
the extent that the validity or enforceability thereof may be limited by
bankruptcy or other laws affecting the enforcement of creditors' rights
generally, or by general equity principles, or by public policy. To the best
knowledge of Seller and the General Partners, there is no pending or threatened
bankruptcy, insolvency or similar proceeding with respect to any other party to
such agreements, and no event has occurred which (whether with or without
notice, lapse of time or the happening or occurrence of any other event) would
constitute a material default thereunder by Seller or any other party thereto.
Section 5.37 Statements True and Correct. No representation or
warranty made herein by Seller or any General Partner, nor any statement,
certificate, exhibit or instrument to be furnished by Seller or any General
Partner, to APPM or Buyer pursuant to this Agreement, contains, or will contain
as of the Effective Time, any untrue statement of material fact, or omits, or
will omit as of the Effective Time, to state a material fact necessary to make
the statements contained herein and therein not misleading.
Section 5.38 Schedules. All Schedules required by this Article V
and attached hereto are true, correct and complete in all material respects as
of the date of this Agreement.
Section 5.39 Finders' Fees. No investment banker, broker, finder
or other intermediary has been retained by, or is authorized to act on behalf
of, Seller or any General Partner who is entitled to any fee or commission upon
consummation of the transactions contemplated by this Agreement or referred to
herein.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER AND APPM
Buyer and APPM each represents and warrants to Seller as follows:
Section 6.1 Organization and Good Standing; Qualification. Each of
Buyer and APPM is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware, with all requisite corporate
power and authority to own, operate and lease its assets and properties and to
carry on its business as currently conducted. Each of Buyer and APPM is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the character of the property owned or leased by it or
the nature of its activities makes such qualification necessary, except where
such failure to be so qualified or in good standing would not have a Material
Adverse Effect on Buyer or APPM. Copies of the certificate of incorporation
and all amendments thereto of Buyer and APPM and the bylaws of Buyer and APPM,
as amended, and
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copies of the corporate minutes of Buyer and APPM regarding this transaction,
all of which have been or will be made available to Seller for review, are
true, correct and complete as in effect on the date of this Agreement, and
accurately reflect all material proceedings of the stockholders and directors
of Buyer and APPM (and all committees thereof) regarding this transaction.
Section 6.2 Authorization and Validity. Each of Buyer and APPM
has all requisite corporate power to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by Buyer and APPM of this Agreement and the agreements provided for
herein, and the consummation by Buyer and APPM of the transactions contemplated
hereby and thereby, are within Buyer's and APPM's respective corporate powers
and have been duly authorized by all necessary action on the part of Buyer's
and APPM's respective Board of Directors. This Agreement has been duly
executed by Buyer and APPM. This Agreement, and all other agreements and
obligations entered into and undertaken in connection with the transactions
contemplated hereby and thereby to which Buyer and APPM is a party, constitute,
or upon execution will constitute, valid and binding agreements of Buyer and
APPM (as the case may be), enforceable against it in accordance with their
respective terms, except as may be limited by bankruptcy or other laws
affecting creditors' rights generally, or by general equity principles, or by
public policy.
Section 6.3 Consents and Approvals. No consent, approval or
authorization of, notice to, or declaration, filing or registration with, any
governmental entity or any other person or entity is required to be made or
obtained by Buyer or APPM in connection with its respective execution, delivery
and performance of this Agreement and its consummation of the transactions
contemplated hereby.
Section 6.4 Governmental Authorization. Other than consents,
filings or notifications required to be made or obtained by Seller, to the best
knowledge of APPM and Buyer, the execution, delivery and performance by Buyer
and APPM of this Agreement and the agreements provided for herein, and the
consummation of the transactions contemplated hereby and thereby by Buyer and
APPM, require no action by or in respect of, or filing with, any governmental
body, agency, official or authority.
Section 6.5 Absence of Conflicting Agreements or Required
Consents. The execution, delivery and performance of this Agreement by Buyer
and/or APPM and any other documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (i) do not require the consent
of any governmental or regulatory body or authority or any other third party
except for such consents for which the failure to obtain would not reasonably
be expected to result in a Material Adverse Effect on Buyer or APPM; (ii) will
not conflict with any provision of Buyer's or APPM's respective certificate of
incorporation or bylaws; (iii) to the best knowledge of APPM and Buyer, will
not conflict with, result in a violation of, or constitute a default under, any
law, ordinance, regulation, ruling, judgment, order or injunction of any court
or governmental instrumentality to which Buyer or APPM is a party or by which
Buyer or APPM or their or its properties are subject or bound; (iv) will not
conflict with, constitute grounds for termination of, result in a breach of,
constitute a default under, require any notice under, or accelerate or permit
the acceleration of any performance required by the terms of, any agreement,
instrument, license or
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permit material to this transaction, to which Buyer or APPM is a party or by
which Buyer or APPM or any of their or its respective properties are subject or
bound except for such conflict, termination, breach or default, the occurrence
of which would not reasonably be expected to result in a Material Adverse
Effect on Buyer or APPM; and (v) will not create any Encumbrance or restriction
upon any of the assets or properties of Buyer or APPM.
Section 6.6 Statements True and Correct. No representation or
warranty made herein by Buyer or APPM, nor any statement, certificate or
instrument to be furnished by Buyer or APPM to Seller pursuant to this
Agreement, contains, or will contain as of the Effective Time, any untrue
statement of material fact, or omits, or will omit as of the Effective Time, to
state a material fact necessary to make the statements contained herein and
therein not misleading.
Section 6.7 Schedules. All Schedules required by this Article VI
and attached hereto are true, correct and complete in all material respects as
of the date of this Agreement.
Section 6.8 Finder's Fees. No investment banker, broker, finder
or other intermediary has been retained by, or is authorized to act on behalf
of, Buyer or APPM, who is entitled to any fee or commission upon consummation
of the transactions contemplated by this Agreement or referred to herein.
Section 6.9 Litigation and Claims. There are no claims,
lawsuits, actions, arbitrations, administrative or other proceedings,
governmental investigations or inquiries pending, or, to the best knowledge of
Buyer and APPM threatened, against Buyer or APPM which could materially
adversely affect the ability of Buyer or APPM to effect the transactions
contemplated hereby.
Section 6.10 APPM Common Stock. The APPM Common Stock issued to
Seller (or its Partners) pursuant hereto, has been validly issued by APPM, is
fully paid and non-assessable, and to APPM's best knowledge, based on
representations made by Seller and/or its Partners to APPM, is exempt from
registration under federal securities laws.
ARTICLE VII
POST-CLOSING COVENANTS OF SELLER
Section 7.1 Lock-up Agreements from Partners. Prior to
distributing the APPM Stock (as defined on Exhibit A) to the Partners, Seller
shall cause each Partner to execute and deliver to APPM a lock-up agreement in
the form attached hereto as Exhibit C.
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ARTICLE VIII
PRE-CLOSING COVENANTS OF APPM AND BUYER
[Intentionally Omitted]
ARTICLE IX
CONDITIONS PRECEDENT OF APPM AND BUYER
[Intentionally Omitted]
ARTICLE X
[Intentionally Omitted]
ARTICLE XI
CLOSING DELIVERIES
Section 11.1 Deliveries of Seller. Seller hereby delivers to
Buyer the following:
(a) a copy of resolutions of Seller authorizing the
execution, delivery and performance of this Agreement and all related documents
and agreements, and the consummation of the transactions contemplated hereby;
(b) [intentionally omitted];
(c) [intentionally omitted];
(d) a certificate, dated within thirty (30) days prior to
the Closing Date, of the Maryland State Department of Assessments and Taxation
for Seller establishing that Seller is in existence, has paid all franchise or
similar taxes, if any, and, if applicable, otherwise is in good standing to
transact business in the state of Maryland;
(e) all authorizations, consents, approvals, permits and
licenses referenced in Section 5.28;
(f) an assignment to Buyer of (i) each lease for personal
property described on Schedule 5.20 (the "Lease Assignments"), (ii) all
contracts described on Schedule 5.14 which can be assigned to Buyer ("Non-Payor
Contract Assignments"), and (iii) all contracts described in Schedule 5.14
which cannot be assigned to Buyer ("Payor Contract Assignments"); and
(g) [intentionally omitted].
Section 11.2 Deliveries of Buyer and APPM. At or prior to the
Closing Date, each of Buyer and APPM shall deliver to Seller the following, all
of which shall be in a form reasonably satisfactory to Seller:
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(a) a copy of resolutions of the Board of Directors of
APPM or Buyer, as applicable, authorizing the execution, delivery and
performance of this Agreement, and all related documents and agreements,
certified by APPM's or Buyer's Secretary as being true and correct copies of
the originals thereof subject to no modifications or amendments;
(b) the Consideration in accordance with Exhibit A
hereto;
(c) [intentionally omitted];
(d) [intentionally omitted];
(e) a certificate of the Secretary of APPM or Buyer, as
may be applicable, certifying as to the incumbency of the officers of Buyer and
APPM who have executed documents delivered at the Closing on behalf of Buyer;
(f) a certificate, dated within ten (10) days prior to
the Closing Date, of the Secretary of State of Delaware establishing that Buyer
and APPM each is in existence, has paid all franchise or similar taxes, if any,
and, if applicable, otherwise is in good standing to transact business in the
state of Delaware;
(g) certificates (or photocopies thereof), dated within
ten (10) days prior to the Closing Date, of the State of Maryland Department of
Assessments and Taxation, to the effect that Buyer is qualified to do business,
and, if applicable, is in good standing as a foreign corporation in such state;
and
(h) the executed Lease Assignments, Non-Payor Contract
Assignments and Payor Contract Assignments.
ARTICLE XII
CERTAIN ADDITIONAL AGREEMENTS OF THE PARTIES
[Intentionally Omitted]
ARTICLE XIII
POST CLOSING MATTERS
Section 13.1 Further Instruments of Transfer. During a reasonable
period following the Closing, at the request of APPM, Seller and the General
Partners shall deliver any further instruments of transfer and take all
reasonable action as may be necessary or appropriate to carry out the purpose
and intent of this Agreement and the Transactions. During a reasonable period
following the Closing, at the request of Seller, APPM and Ormond shall deliver
any further
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instruments of transfer and take all reasonable action as may be necessary or
appropriate to carry out the purpose and intent of this Agreement and the
Transactions.
Section 13.2 Survival of Article XIV. Notwithstanding any other
provision of this Agreement to the contrary, Article XIV of this Agreement
shall survive the Closing.
ARTICLE XIV
REMEDIES
Section 14.1 Indemnification by Seller and the General Partners.
Subject to the terms and conditions of this Article XIV, Seller and the General
Partners shall indemnify, defend and hold APPM and Buyer and their respective
directors, officers, members, managers, employees, agents, attorneys and
Affiliates harmless from and against all losses, claims, obligations, demands,
assessments, penalties, liabilities, costs, damages, reasonable attorneys' fees
and expenses (collectively, "Damages") asserted against or incurred by such
indemnitees arising out of or resulting from:
(a) a breach of any representation or warranty or
covenant of Seller contained herein or in any Schedule or certificate delivered
hereunder;
(b) any violation (or alleged violation) by Seller and/or
any of its past or present, partners, managers, employees, agents, consultants
and Affiliates of state or federal laws governing health care fraud and abuse
(including, but not limited to, fraud and abuse in the Medicare and Medicaid
Programs) occurring on or before the Closing Date, or any overpayment or
obligation (or alleged overpayment or obligation) arising out of or resulting
from claims submitted to any Payor on or before the Closing Date and for which
Seller or the Partners received payment on or before the Effective Date
("Healthcare Fraud"); and
(c) the ownership, possession, use, sale, licensing or
leasing of the Purchased Assets by Seller at or before the Effective Time or
the non-payment (including untimely payment) or non-performance of the
Unassumed Liabilities by Seller.
Section 14.2 Indemnification by APPM and Buyer. Subject to the
terms and conditions of this Article XIV, APPM and Buyer, jointly and
severally, shall indemnify, defend and hold Seller and its partners, managers,
employees, agents, attorneys and Affiliates harmless from and against all
Damages asserted against or incurred by such indemnitees arising out of or
resulting from:
(a) a breach by APPM or Buyer of any representation or
warranty or covenant of APPM or Buyer contained herein or in any Schedule or
certificate delivered hereunder; and
(b) all Assumed Liabilities.
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Section 14.3 Conditions of Indemnification. All claims for
indemnification under this Agreement shall be asserted and resolved as follows:
(a) A party claiming indemnification under this Agreement
(an "Indemnified Party") shall promptly (and, in any event, at least ten (10)
days prior to the due date for any responsive pleadings, filings or other
documents) (i) notify the party from whom indemnification is sought (the
"Indemnifying Party") of any third-party claim or claims asserted against the
Indemnified Party ("Third Party Claim") that could give rise to a right of
indemnification under this Agreement, and (ii) transmit to the Indemnifying
Party a written notice ("Claim Notice") describing in reasonable detail the
nature of the Third Party Claim, a copy of all papers served with respect to
such claim (if any), an estimate of the amount of Damages attributable to the
Third Party Claim, and the basis of the Indemnified Party's request for
indemnification under this Agreement. Except as set forth in Section 14.6, the
failure to promptly deliver a Claim Notice shall not relieve the Indemnifying
Party of its obligations to the Indemnified Party with respect to the related
Third Party Claim except to the extent that the resulting delay is materially
prejudicial to the defense of such claim. Any damages ultimately awarded shall
be reduced by the costs incurred as a result of such delay.
Within thirty (30) days after receipt of any Claim Notice (the
"Election Period"), the Indemnifying Party shall notify the Indemnified Party
(i) whether the Indemnifying Party disputes its potential liability to the
Indemnified Party under this Article XIV with respect to such Third Party
Claim, and (ii) whether the Indemnifying Party desires, at the sole cost and
expense of the Indemnifying Party, to defend the Indemnified Party against such
Third Party Claim.
(b) If the Indemnifying Party notifies the Indemnified
Party within the Election Period that the Indemnifying Party elects to assume
the defense of the Third Party Claim, then the Indemnifying Party shall have
the right to defend, at its sole cost and expense, such Third Party Claim by
all appropriate proceedings, which proceedings shall be prosecuted diligently
by the Indemnifying Party to a final conclusion or settled at the discretion of
the Indemnifying Party in accordance with this Section 14.3(b). The
Indemnifying Party shall have full control of such defense and proceedings,
including any compromise or settlement thereof. The Indemnified Party is
hereby authorized, at the sole cost and expense of the Indemnifying Party (but
only if the Indemnified Party is entitled to indemnification hereunder), to
file, during the Election Period, any motion, answer or other pleadings that
the Indemnified Party reasonably shall deem necessary or appropriate to protect
its interests or those of the Indemnifying Party and not prejudicial to the
Indemnifying Party (it being understood and agreed that if an Indemnified Party
takes any such action that is prejudicial and causes a final adjudication that
is adverse to the Indemnifying Party, the Indemnifying Party shall be relieved
of its obligations hereunder with respect to such Third Party Claim). If
requested by the Indemnifying Party, the Indemnified Party agrees, at the sole
cost and expense of the Indemnifying Party, to cooperate with the Indemnifying
Party and its counsel in contesting any Third Party Claim that the Indemnifying
Party elects to contest, including, without limitation, the making of any
related counterclaim against the person asserting the Third Party Claim or any
cross-complaint against any person. The Indemnified Party may participate in,
but not control, any defense or settlement of any Third Party Claim controlled
by the Indemnifying Party pursuant to this Section 14.3(b) and shall bear its
own costs and expenses with respect to such participation; provided, however,
that if the
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named parties to any such action (including any impleaded parties) include both
the Indemnifying Party and the Indemnified Party, and the Indemnified Party has
been advised by counsel that there may be one or more legal defenses available
to it that are different from or additional to those available to the
Indemnifying Party, then the Indemnified Party may employ separate counsel at
the expense of the Indemnifying Party, and upon written notification thereof,
the Indemnifying Party shall not have the right to assume the defense of such
action on behalf of the Indemnified Party; provided further that the
Indemnifying Party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for the Indemnified Party, which firm shall be designated in writing by
the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party
shall be prohibited from confessing or settling any criminal allegations
brought against the Indemnified Party without the express written consent of
the Indemnified Party.
(c) If the Indemnifying Party fails to notify the
Indemnified Party within the Election Period that the Indemnifying Party elects
to defend the Indemnified Party pursuant to Section 14.3(b), or if the
Indemnifying Party elects to defend the Indemnified Party pursuant to Section
14.3(b) but fails diligently and promptly to prosecute or settle the Third
Party Claim, then the Indemnified Party shall have the right to defend, at the
sole cost and expense of the Indemnifying Party (if the Indemnified Party is
entitled to indemnification hereunder), the Third Party Claim by all
appropriate proceedings, which proceedings shall be promptly and vigorously
prosecuted by the Indemnified Party to a final conclusion or settled. The
Indemnified Party shall have full control of such defense and proceedings,
provided, however, that the Indemnified Party may not enter into, without the
Indemnifying Party's consent, which shall not be unreasonably withheld, any
compromise or settlement of such Third Party Claim. Notwithstanding the
foregoing, if the Indemnifying Party has delivered a written notice to the
Indemnified Party to the effect that the Indemnifying Party disputes its
potential liability to the Indemnified Party under this Article XIV and if such
dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party
shall not be required to bear the costs and expenses of the Indemnified Party's
defense pursuant to this Section or of the Indemnifying Party's participation
therein at the Indemnified Party's request, and the Indemnified Party shall
reimburse the Indemnifying Party in full for all costs and expenses of such
litigation. The Indemnifying Party may participate in, but not control, any
defense or settlement controlled by the Indemnified Party pursuant to this
Section 14.3(c), and the Indemnifying Party shall bear its own costs and
expenses with respect to such participation; provided, however, that if the
named parties to any such action (including any impleaded parties) include both
the Indemnifying Party and the Indemnified Party, and the Indemnifying Party
has been advised by counsel that there may be one or more legal defenses
available to it that are different from or additional to those available to the
Indemnified Party, then the Indemnifying Party may employ separate counsel and,
upon written notification thereof, the Indemnified Party shall not have the
right to assume the defense of such action on behalf of the Indemnifying Party.
(d) In the event any Indemnified Party should have a
claim against any Indemnifying Party hereunder that does not involve a Third
Party Claim, the Indemnified Party shall transmit to the Indemnifying Party a
written notice (the "Indemnity Notice") describing in reasonable detail the
nature of the claim, an estimate of the amount of damages attributable to such
claim, and
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the basis of the Indemnified Party's request for indemnification under this
Agreement. If the Indemnifying Party does not notify the Indemnified Party
within sixty (60) days from its receipt of the Indemnity Notice that the
Indemnifying Party disputes such claim, the claim specified by the Indemnified
Party in the Indemnity Notice shall be deemed a liability of the Indemnifying
Party hereunder. If the Indemnifying Party has timely disputed such claim, as
provided above, such dispute shall be resolved by litigation in an appropriate
court of competent jurisdiction if the parties do not reach a settlement of
such dispute within thirty (30) days after notice of a dispute is given.
(e) Payments of all amounts owing by an Indemnifying
Party pursuant to this Article XIV relating to a Third Party Claim shall be
made within thirty (30) days after the latest of (i) the settlement of such
Third Party Claim, (ii) the expiration of the period for appeal of a final
adjudication of such Third Party Claim, or (iii) the expiration of the period
for appeal of a final adjudication of the Indemnifying Party's liability to the
Indemnified Party under this Agreement. Payments of all amounts owing by an
Indemnifying Party pursuant to Section 14.3(d) shall be made within 30 days
after the later of (i) the expiration of the 60-day Indemnity Notice period or
(ii) the expiration of the period for appeal of a final adjudication of the
Indemnifying Party's liability to the Indemnified Party under this Agreement.
(f) The Indemnifying Party shall provide the Indemnified
Party with written notice of any firm offer that is made to settle or
compromise a Third Party Claim against an Indemnified Party. If a firm offer
is made to settle such a claim solely by the payment of money damages and such
offer is contingent only upon the acceptance by the Indemnifying Party, and the
Indemnifying Party notifies the Indemnified Party in writing that the
Indemnifying Party agrees to such settlement, but the Indemnified Party elects
not to accept and agree to it, the Indemnified Party may continue to contest or
defend such Third Party Claim and, in such event, the total maximum liability
of the Indemnifying Party to indemnify or otherwise reimburse the Indemnified
Party hereunder with respect to such a claim shall be limited to and shall not
exceed the amount of such settlement offer, plus reasonable out-of-pocket costs
and reasonable expenses (including reasonable attorneys' fees and
disbursements) to the date of notice that the Indemnifying Party desired to
accept such settlement.
(g) Notwithstanding any provision herein to the contrary,
the obligation of APPM or Buyer on the one hand, or Seller, on the other hand,
to provide indemnification for breach of any representation or warranty or
covenants as provided in Section 14.1(a) or 14.2(a) hereof, shall not take
effect unless and until the Damages asserted against or incurred in the
aggregate and on a collective basis by APPM or Buyer, on the one hand, or
Seller, on the other hand, as a result of such a breach or breaches exceeds
$15,000 (but expressly excluding any such claims involving fraud, intentional
misrepresentation, title to the Purchased Assets, Taxes, Litigation or
Healthcare Fraud).
Section 14.4 Remedies Exclusive. The remedies provided in this
Agreement shall be exclusive of any other rights or remedies available to one
party against the other, either at law or in equity, except that this section
shall not limit any party's right to equitable relief, to the extent and as
appropriate, with respect to fraud, intentional misrepresentations, title to
the Purchased Assets, Taxes, Litigation or Healthcare Fraud.
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Section 14.5 Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party hereto shall bear
its own costs and expenses (including attorneys' fees), except that each party
hereto agrees to pay the costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the other parties in successfully (a) enforcing
any of the terms of this Agreement or (b) proving that another party breached
any of the terms of this Agreement.
Section 14.6 Tax Benefits; Insurance Proceeds. The total amount
of any indemnity payments owed by one party to another party to this Agreement
shall be reduced by any correlative tax benefit received by the party to be
indemnified or the net proceeds received by the party to be indemnified with
respect to recovery from third parties or insurance proceeds, and such
correlative insurance benefit shall be net of the insurance premium, if any,
that becomes due as a result of such claim.
Section 14.7 Survival.
(a) All of the respective obligations of the parties
contained in this Agreement or in any other document delivered in accordance
with and pursuant to this Agreement, including without limitation all
covenants, agreements, indemnities, representations (other than with respect to
the due authority of a party), and warranties (other than with respect to the
due authority of a party), shall survive Closing for a period of twenty-four
(24) months; provided, however, that the limitation of this clause (a) shall
not apply to claims involving fraud, intentional misrepresentations, title to
the Purchased Assets, Taxes, Litigation or Healthcare Fraud, for which the
period for making such claims shall expire on the date which is six (6) months
after the termination of the applicable statute of limitations relating
thereto.
(b) If, within such twenty-four (24) month period (or
longer period, if applicable), no written notice is given by one party to the
other party of any alleged breach of a covenant, agreement, indemnification,
representation, or warranty of the other party under this Agreement, then all
liability of the other party, except as otherwise provided in this Agreement,
shall terminate. If written notice of any alleged breach of a covenant,
agreement, indemnification, warranty, or obligation is given to the other party
within such twenty-four (24) month period (or longer period, if applicable),
then the liability of the other party shall survive as to the matter(s) in
question in such notice, and the liability of the other party as to all other
matters shall cease.
Section 14.8 Breach by Partner. The parties agree that,
notwithstanding any other provision of this Agreement to the contrary, if and
in the event a right of indemnification under this Agreement arises in favor of
APPM as a result of a breach by a specific Partner of a representation,
warranty, or covenant particular to that Partner, then APPM shall first seek to
enforce its rights of indemnification against, and indemnification from, the
Partner who is in breach, and second, seek to enforce its rights of
indemnification against, and indemnification from, the other Partners.
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ARTICLE XV
TERMINATION
[Intentionally Omitted]
ARTICLE XVI
NONDISCLOSURE OF CONFIDENTIAL INFORMATION
[Intentionally Omitted]
ARTICLE XVII
MISCELLANEOUS
Section 17.1 Amendment; Waivers. This Agreement may be amended,
modified or supplemented only by an instrument in writing executed by all the
parties hereto. Any waiver of any terms and conditions hereof must be in
writing, and signed by the parties hereto. The waiver of any of the terms and
conditions of this Agreement shall not be construed as a waiver of any other
terms and conditions hereof.
Section 17.2 Assignment. Neither this Agreement nor any right
created hereby or in any agreement entered into in connection with the
transactions contemplated hereby shall be assignable by any party hereto,
except by APPM to a wholly owned subsidiary of APPM; provided that any such
assignment shall not relieve APPM of its obligations hereunder.
Section 17.3 Parties in Interest; No Third Party Beneficiaries.
Except as otherwise provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and permitted assigns of the parties hereto.
Neither this Agreement nor any other agreement contemplated hereby shall be
deemed to confer upon any person not a party hereto or thereto any rights or
remedies hereunder or thereunder.
Section 17.4 Entire Agreement. Except as is expressly provided in
writing, this Agreement and the agreements contemplated hereby constitute the
entire agreement of the parties regarding the subject matter hereof, and
supersede all prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
Section 17.5 Severability. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws
effective during the term hereof, such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision
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as similar in its terms to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable.
Section 17.6 Survival of Representations, Warranties and
Covenants. The representations, warranties and covenants contained herein
shall survive the Closing in accordance with the provisions of Section 14.7,
and all statements contained in any certificate, exhibit or other instrument
delivered by or on behalf of Seller, the General Partners, APPM or Buyer
pursuant to this Agreement shall be deemed to have been representations and
warranties by Seller, the General Partners, APPM or Buyer, as may be the case.
Section 17.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE STATE OF MARYLAND.
Section 17.8 Captions. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of
the terms or provisions hereof.
Section 17.9 Gender and Number. When the context requires, the
gender of all words used herein shall include the masculine, feminine and
neuter, and the number of all words shall include the singular and plural.
Section 17.10 Reference to Agreement. Use of the words "herein,"
"hereof," "hereto" and the like in this Agreement shall be construed as
references to this Agreement as a whole and not to any particular Article,
Section or provision of this Agreement, unless otherwise noted.
Section 17.11 Confidentiality; Publicity and Disclosures. Each
party shall keep this Agreement and its terms confidential, and shall make no
press release or public disclosure, either written or oral, regarding the
transactions contemplated by this Agreement without the prior knowledge and
consent of the other parties hereto except (a) to authorized representatives of
said party and (b) to counsel, other advisers and immediate family members to
said party provided that such advisers and immediate family members (other than
counsel) agree to the confidentiality provisions of this Section 17.11, unless
(i) such information becomes available to or known by the public generally
through no fault of APPM, Buyer, Seller or the Partners, as the case may be,
(ii) disclosure is required by law or the order of any governmental authority
under color of law, provided, that prior to disclosing any information pursuant
to this clause (ii) APPM, Buyer, Seller or the Partners, as the case may be,
shall, if possible, give prior written notice thereof to the other parties and
provide the other parties with the opportunity to contest such disclosure,
(iii) the disclosing party reasonably believes that such disclosure is required
in connection with the defense of a lawsuit against the disclosing party, or
(iv) the disclosing party is the sole and exclusive owner of such confidential
information as a result of the transactions hereunder; provided that the
foregoing shall not prohibit any disclosure by press release, filing or
otherwise that APPM has determined in its good faith judgment to be required by
federal securities laws or the rules of the Securities and Exchange Commission
or the National Association of Securities Dealers.
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Section 17.12 Notice. Whenever this Agreement requires or permits
any notice, request, or demand from one party to another, the notice, request
or demand must be in writing to be effective and shall be deemed to be
delivered and received (i) if personally delivered, when actually received by
the party to whom notice is sent, or (ii) if delivered by mail (whether
actually received or not), at the close of business on the third business day
next following the day when placed in the mail, postage prepaid, certified or
registered, or (iii) if delivered by nationally- recognized overnight courier,
at the close of the next business day following delivery to said overnight
courier, addressed to the appropriate party or parties, at the address of such
party set forth below (or at such other address as such party may designate by
written notice to all other parties in accordance herewith):
If to APPM and Buyer: American Physician Partners, Inc.
3600 Chase Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
with a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Seller Magnetic Resonance Imaging Associates
or any General Partner: Limited Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
with a copy to: Sherman, Meehan, ▇▇▇▇▇▇ & Ain
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Section 17.13 No Waiver; Remedies. No party hereto shall by any
act (except by written instrument pursuant to Section 17.1 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default in or breach of any of the terms
and conditions hereof. No failure to exercise, nor any delay in exercising, on
the part of any party hereto, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. No remedy set forth in
this Agreement or otherwise conferred upon or reserved to any party shall be
considered exclusive of any other remedy available to any party, but the same
shall be distinct, separate and cumulative and may be exercised from time to
time as often as occasion may arise or as may be deemed expedient.
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Section 17.14 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
Section 17.15 Defined Terms. Terms used in the attached Exhibits
and the Schedules attached hereto with their initial letter capitalized and not
otherwise defined therein shall have the meanings as assigned to such terms in
this Agreement.
Section 17.16 Schedules and Exhibits. The Schedules and Exhibits
attached to this Agreement are by this reference incorporated herein and made a
part hereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
APPM:
AMERICAN PHYSICIAN PARTNERS, INC.
By:
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
BUYER:
ORMOND IMAGING PARTNERS, INC.
By:
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
SELLER:
MAGNETIC RESONANCE IMAGING
ASSOCIATES LIMITED PARTNERSHIP
By:
---------------------------------------
Name:
----------------------------------
Its: Managing General Partner
GENERAL PARTNERS:
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. Perl
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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