__________________________________________________________________________
SECURITIES PURCHASE AGREEMENT
Dated as of February 25, 1999
INDEPENDENT DIVESTMENT TRUST,
as the Seller
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as the Buyer
__________________________________________________________________________
TABLE OF CONTENTS
Page
1. Purchase and Sale of Shares............................................1
2. Purchase Price.........................................................1
(a) Share Purchase Price.................................................1
(b) Fair Market Value....................................................1
(c) Adjustments..........................................................2
(d) Merger Adjustments...................................................2
3. Closings; Payment of Purchase Price; Put Right of the Seller...........3
(a) Maturity Closing.....................................................3
(b) Early Closings.......................................................3
(c) Certain Events.......................................................3
(d) Deliveries...........................................................4
4. Representations and Warranties of the Seller...........................4
(a) The Shares...........................................................4
(b) Authorization, Execution and Delivery................................5
(c) No Conflicts.........................................................5
(d) Governmental Approvals; Other Consents...............................5
(e) Enforceability; Etc..................................................5
5. Representations and Warranties of the Buyer............................5
(a) Residence............................................................5
(b) Claims and Proceedings...............................................5
(c) Authorization........................................................6
(d) No Conflicts.........................................................6
(e) Governmental Approvals; Other Consents...............................6
(f) Enforceability; Etc..................................................6
(g) Investment Intent....................................................6
(h) Restricted Stock.....................................................6
(i) Status; Investigation................................................7
6. Covenants of the Buyer.................................................7
(a) Reporting............................................................7
(b) Transfers............................................................7
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(c) Compensation and Reimbursement......................... 7
7. Conditions Precedent to Obligations of the Seller........ 8
(a) Representations and Warranties of the Buyer Correct.... 8
(b) Compliance with Covenants and Conditions............... 8
(c) Delivery of Certificate................................ 8
(d) Opinion of Counsel..................................... 8
(e) Proceedings............................................ 8
(f) Approvals and Consents................................. 8
(g) Claims and Proceedings................................. 8
8. Conditions Precedent to Obligations of the Buyer......... 9
(a) Representations and Warranties of the Seller........... 9
(b) Compliance with Covenants and Conditions............... 9
(c) Delivery of Certificates............................... 9
(d) Proceedings............................................ 9
(e) Approvals and Consents................................. 9
(f) Claims and Proceedings................................. 9
9. Termination of Agreement................................. 9
(a) Mutual Consent......................................... 9
(b) Condition Failure by the Buyer......................... 9
(c) Condition Failure by the Seller........................10
10. Brokers..................................................10
11. Expenses.................................................10
12. Survival of Representations, Warranties and Covenants....10
13. Successors and Assigns...................................10
14. Notices..................................................11
15. Complete Agreement.......................................12
16. Amendments; Waivers......................................12
17. Governing Law............................................12
18. Invalid Provisions.......................................12
19. Further Assurances.......................................12
20. Trustee..................................................13
21. Counterparts.............................................13
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this Agreement") is made and entered
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into as of the 25th day of February, 1999, by and between Independent Divestment
Trust (the "Seller") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Buyer").
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WHEREAS, the Seller owns beneficially and of record 4,500,000 shares (the
"Shares") of the outstanding shares of common stock, par value $.01 per share
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(the "Common Stock"), of United Payors & United Providers, Inc., a Delaware
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corporation (the "Company"); and
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WHEREAS, subject to and on the terms and conditions contained herein, the
Seller desires to sell to the Buyer and the Buyer desires to purchase from the
Seller all of the Shares.
NOW THEREFORE, in consideration of the premises, the mutual covenants and
agreements of the parties contained herein, and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each of the parties (including the non-refundable payment by the Buyer of
$13,225,000 to the Seller by wire transfer on the date hereof), the parties do
hereby represent, warrant, covenant and agree as follows:
1. Purchase and Sale of Shares. Subject to and on the terms and
conditions contained herein, and in reliance on the representations and
warranties contained herein, the Buyer agrees to purchase from the Seller, and
the Seller agrees to sell to the Buyer, the Shares at the purchase price and at
the time(s) specified in Sections 2 and 3 of this Agreement.
2. Purchase Price.
(a) Share Purchase Price. The purchase price per Share at any Closing
(as defined in Section 3(b)) shall be an amount equal to (i) the Fair Market
Value of the Common Stock (as determined in Section 2(b) below) less (ii) $2.94
(equal to $13,225,000 / 4,500,000); subject to adjustment as provided in Section
2(c) or 2(d) below (the "Share Purchase Price").
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(b) Fair Market Value. "Fair Market Value" for purposes of any
Closing shall mean:
(i) the average of the per-share closing sale prices of the
Company's Common Stock for the 10 trading days immediately preceding a
Closing Date (as defined in Section 3 of this Agreement) on the principal
United States securities exchange registered under the Exchange Act of
1934, as amended on which the Common Stock is listed, or if the shares are
not listed on any such exchange, on the NASDAQ National Market, or
(ii) if clause (i) above is inapplicable, then $27.60;
provided, however, that in no event shall Fair Market Value be less than $23.00
or greater than $27.60.
(c) Adjustments. The Share Purchase Price shall be adjusted to
reflect fully the effect of any stock split, reverse split, stock dividend,
reorganization, recapitalization or other like change with respect to a share of
Common Stock occurring after the date hereof and prior to termination of this
Agreement. In addition, each cash dividend (or other cash distribution)
received by the Seller with respect to a Share shall (i) cause a reduction in
the Share Purchase Price in an amount equal to the cash dividend (or other cash
distribution) received per Share, and (ii) after taking into account such Share
Purchase Price reduction, be deemed the property of the Seller (and the Buyer
shall have no rights with respect thereto). Furthermore, each distribution of
property or other assets other than a cash distribution or a distribution of
shares of Common Stock with respect to a Share shall be included along with such
Share upon its purchase by the Buyer.
(d) Merger Adjustments. In case of any consolidation or merger of
the Company with or into another corporation or other entity (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company), or in case of any
sale or conveyance to another corporation or other entity of the property of the
Company as, or substantially as, an entirety, then the Buyer shall be entitled
to purchase, at the Share Purchase Price determined as of the time of such
consolidation, merger, sale or conveyance (as adjusted in accordance with this
Section 2(d)) and consistent with the terms of this Agreement, the kind and
number of shares of stock or other securities or property (excluding cash)
received by the Seller per Share upon such consolidation, merger, sale or
conveyance. For purposes of this Section 2(d), the Share Purchase Price shall be
reduced by the amount of cash received by the Seller per Share in connection
with any such consolidation, merger, sale or conveyance, and, after taking into
account such Share Purchase Price reduction, such cash shall be deemed the
property of the Seller (and the Buyer shall have no rights with respect
thereto); provided, however, if the amount of such cash per Share exceeds the
then-applicable Share Purchase Price, then all amounts in excess of the then-
applicable Share Purchase Price (together with the Shares or other stock or
property received with respect to such Shares) shall be distributed by the
Seller to the Buyer and this Agreement shall be deemed immediately terminated
upon such distribution. If the property received by the Seller in connection
with any such consolidation, merger, sale or conveyance consists totally of
cash, and the amount of such cash per Share is less than $23.00, then the
obligation of the Buyer at Closing shall be solely to pay to the Seller an
amount equal to the difference between the cash received per Share and $23.00.
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3. Closings; Payment of Purchase Price; Put Right of the Seller.
(a) Maturity Closing. Subject to the terms and conditions contained
in this Agreement, the closing of the sale to, and purchase by, the Buyer of the
Shares shall occur at the offices of the Wilmington Trust Company, Wilmington,
Delaware, at 10:00 a.m., Wilmington time (the "Maturity Closing"), on February
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25, 2003, or such other place and time mutually agreed to by the Seller and the
Buyer (the "Maturity Closing Date").
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(b) Early Closings. Notwithstanding Section 3(a) above, subject to
the terms and conditions contained in the Agreement, the Buyer may purchase some
or all of the Shares prior to the Maturity Closing Date on one or more Early
Closing Dates (as defined below in this Section 3(b)) by providing the Seller
with one or more written notices specifying the number of Shares to be purchased
on such Early Closing Date. The closing(s) of the sale to, and purchase by, the
Buyer of any Shares under this Section 3(b) shall occur at the offices of the
Wilmington Trust Company, Wilmington, Delaware, or such other place mutually
agreed to by the Seller and the Buyer, at 10:00 a.m., Wilmington time (each an
"Early Closing" and, collectively with the Maturity Closing and an Event Closing
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(as defined in Section 3(c) below), sometimes referred to herein as a
"Closing"), on the date that is three business days following the date of the
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written notice(s) of the Buyer to the Seller triggering such purchase and sale,
or such other time or place as the parties shall mutually agree upon. The date
on which an Early Closing shall be held is referred to in this Agreement as an
"Early Closing Date" and, collectively with the Maturity Closing Date and an
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Event Closing Date (as defined in Section 3(c) below), sometimes referred to in
this Agreement as a "Closing Date").
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(c) Certain Events Upon the occurrence of any Certain Event (as
defined below), the Seller may accelerate the purchase obligations of the Buyer
hereunder to a date not less than 30 days nor more than 60 days after the Seller
receives notice of the occurrence of a Certain Event (the "Occurrence Date").
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The option of the Seller under this Section 3(c) shall be exercised by the
Seller delivering written notice thereof to the Buyer with 15 days after the
Occurrence Date. In such notice, the Seller shall designate the time and place
of such accelerated closing (an "Event Closing"). The date of such Event
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Closing is referred to in this Agreement as an "Event Closing Date". At any
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such Event Closing, the Buyer shall be obligated to purchase and the Seller
shall be obligated to sell all Shares held by the Seller at the time of the
Event Closing.
For purposes of this Agreement, a "Certain Event" shall mean any one or
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more of the following:
(i) the death of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇");
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(ii) an assignment by ▇▇. ▇▇▇▇▇ for the benefit of creditors or a
petition or application by ▇▇. ▇▇▇▇▇ to any tribunal for the
appointment of a custodian, receiver or trustee;
(iii) the commencement by ▇▇. ▇▇▇▇▇ of any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt
or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect;
(iv) the commencement of any proceeding set forth in (iii) above
against ▇▇. ▇▇▇▇▇ in which an order for relief is entered;
(v) ▇▇. ▇▇▇▇▇, whether by any act or intentional and purposeful
omission, consents to, approves of or acquiesces in any
petition, application, proceeding, order for relief or the
appointment of a custodian, receiver or trustee with respect to
any proceeding set forth in (iii) or (iv) above;
(vi) the continuation of any custodianship, receivership, or
trusteeship established under any proceeding set forth in (ii),
(iii) or (iv) above, undischarged, for a period of 60 days or
more; or
(vii) the default by ▇▇. ▇▇▇▇▇ in the timely payment of any
indebtedness or obligation for borrowed money, which in the
aggregate exceeds $1,000,000, and the continuation of such
default beyond any cure period provided with respect thereto
except for challenges made in good faith.
(d) Deliveries. At each Closing, (i) the Seller shall deliver to
the Buyer certificates representing the Shares being purchased by the Buyer at
such Closing, endorsed in blank or accompanied by duly executed assignment
documents, against payment of the aggregate amount of the Share Purchase Prices
for such Shares, payable in accordance with Section 2 of this Agreement by wire
transfer of immediately available funds to an account designated in writing by
the Seller and (b) the parties shall make the other deliveries provided in
Section 7 and 8 of this Agreement, as applicable. The parties agree that they
will cooperate with the Company to obtain certificates in the appropriate
denominations to satisfy the Seller's delivery obligations at any Closing.
4. Representations and Warranties of the Seller. The Seller represents
and warrants to the Buyer as follows:
(a) The Shares. All of the Shares are owned by and registered in
the name of the Seller, free and clear of any liens, charges, pledges,
encumbrances, defects, restrictions or rights of third parties. As of each
Closing (as a result of the sale of the Shares by Seller to the
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Buyer pursuant to this Agreement), the Buyer will receive title to the Shares
purchased at such Closing free and clear of any liens, charges, pledges,
encumbrances, defects, restrictions or rights of third parties.
(b) Authorization, Execution and Delivery. The Seller has all
requisite power and authority to enter into this Agreement and to carry out the
transactions contemplated herein. The execution, delivery and performance by the
Seller of this Agreement have been duly authorized by all necessary action on
the part of the Seller.
(c) No Conflicts. The execution, delivery and performance by the
Seller of this Agreement, and the consummation of the transactions contemplated
in this Agreement, do not and will not (i) violate any provision of any law
(foreign, Federal, state or local), treaties, statutes, ordinances, decrees,
injunctions, writes, orders, rules or regulations of any governmental authority
(collectively, "Law") applicable to the Seller or its property, the Amended and
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Restated Trust Agreement dated as of February 25, 1999 with respect to the
Independent Divestment Trust or any order, judgment or decree of any court or
other agency of government binding on the Seller, (ii) conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a default
under any contractual obligation of the Seller, or (iii) require any approval or
consent of any Person under any contractual obligation of the Seller.
(d) Governmental Approvals; Other Consents. No authorization,
approval or consent of, or filing with, any governmental authority or other
person or entity (other than those required under the Antitrust Improvements Act
of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇")) is required in connection with the execution, delivery
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and performance by the Seller of this Agreement.
(e) Enforceability; Etc. This Agreement has been duly executed and
delivered by the Seller and constitutes the legally valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its terms,
except as may be limited by bankruptcy, insolvency, receivership,
conservatorship, liquidation, reorganization, moratorium or similar Laws
relating to or affecting creditors' rights generally (including, without
limitation, fraudulent conveyance Laws) and by general principles of equity.
5. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller as follows:
(a) Residence. The Buyer is a resident of the State of Maryland.
(b) Claims and Proceedings. There is no legal action, arbitration,
or governmental proceeding or investigation pending or threatened against or
affecting the Buyer that could adversely affect or prevent the purchase and sale
of the Shares.
5
(c) Authorization. The Buyer has all requisite power and authority
to execute, deliver and perform this Agreement and to carry out the transactions
contemplated herein.
(d) No Conflicts. The execution, delivery and performance by the
Buyer of this Agreement, and the consummation of the transactions contemplated
in this Agreement, do not and will not (i) violate any provision of any Law
applicable to the Buyer or any order, judgment or decree of any court or other
agency of government binding on the Buyer or his property, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any contractual obligation of the Buyer, or (iii) require any
approval or consent of any Person under any contractual obligation of the Buyer.
(e) Governmental Approvals; Other Consents. No authorization,
approval or consent of, or filing with, any governmental authority or other
person or entity (other than those required under or by the HSR Act) is required
in connection with the execution, delivery and performance by the Buyer of this
Agreement.
(f) Enforceability; Etc. This Agreement has been duly executed and
delivered by the Buyer and constitutes the legally valid and binding obligation
of the Buyer, enforceable against the Buyer in accordance with its terms, except
as may be limited by bankruptcy, insolvency, receivership, conservatorship,
liquidation, reorganization, moratorium or similar Laws relating to or affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance Laws) and by general principles of equity.
(g) Investment Intent. The Buyer is entering into this Agreement
and is acquiring the Shares for his own account for investment and not with a
view to any resale or distribution thereof such as would require registration
under Section 5 of the Securities Act of 1933, as amended (the "Act").
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(h) Restricted Stock. The Buyer understands that based upon the
representations of the Buyer contained in this Agreement, the rights evidenced
by this Agreement and the Shares have not been registered under the Act or
applicable state securities laws in reliance on exemptions from registration
under the Act and applicable state securities laws. The Buyer is fully informed
and aware of the circumstances under which such rights and the Shares must be
held and the restrictions upon the transfer or resale of such rights and the
Shares under the Act and any applicable state securities laws. In this
connection, the Buyer understands that the rights evidenced by this Agreement
and the Shares may not be transferred or resold unless they are registered under
the Act and any applicable state securities laws or unless an exemption from
such registration is available.
(i) Status; Investigation. The Buyer is the Chairman of the Board
and Chief
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Executive Officer of the Company. The Buyer has such knowledge and experience in
financial and business matters that the Buyer is capable of evaluating the
merits and risks of the investment to be made by the Buyer under this Agreement.
The Buyer has and has had access to all of the Company's material books and
records and access to the Company's executive officers has been provided to the
Buyer or to the Buyer's qualified agents.
6. Covenants of the Buyer. The Buyer covenants and agrees with the
Seller as follows:
(a) Reporting. The Buyer shall provide a statement of net worth
report to the Seller on an annual basis. Such reports shall be certified by the
Buyer and delivered to the Seller within 30 days after the end of each year-end
during the term of this Agreement. In addition, the Buyer shall provide a
statement of net worth for any interim quarterly period as the Seller may
reasonably request.
(b) Transfers. During the term of this Agreement, the Buyer shall
not (i) transfer or attempt to transfer any of the Buyer's rights under this
Agreement, except in accordance with Section 13 of this Agreement or (ii)
create, incur, assume or suffer to exist any lien, security interest, charge or
other encumbrance upon the Buyer's rights under this Agreement.
(c) Compensation and Reimbursement. The Buyer agrees:
(i) to pay the reasonable fees and expenses of the Trustee, the
Registrar, the Paying Agent, the Custodian and the Dealer Advisor incurred in
accordance with the Trust Agreement, all as set forth in and subject to the
limitations of that certain fee schedule dated as of the Closing Date between
the Trustee and the Trust;
(ii) to indemnify the Seller (in its individual capacity and as
Trustee of the Trust), its directors, officers, employees and agents for, and to
hold it harmless against, any Loss arising out of or in connection with the
transactions contemplated herein or in the Trust Agreement or the Basic
Documents referenced therein or the acceptance or administration of the Trust,
including the reasonable costs and expenses of defense against any claim or
liability asserted at any time against such Persons in connection herewith;
provided, however, that the Buyer shall not be required to indemnify any such
Person to the extent such Loss resulted from such Person's gross negligence,
willful misconduct or bad faith; and
(iii) that the obligations of the Buyer to the Seller under this
Section 6(c) shall survive the resignation or removal of the Seller as Trustee
of the Trust.
7. Conditions Precedent to Obligations of the Seller. The obligations of
the Seller
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to perform and observe the covenants, agreements and conditions hereof to be
performed and observed by it with respect to any Closing shall be subject to the
satisfaction at or before the time of such Closing of the following conditions,
any one or more of which may be waived by the Seller (except for (f) below,
which may not be waived):
(a) Representations and Warranties of the Buyer Correct. The
representations and warranties of the Buyer contained in Section 5 of this
Agreement shall be true and correct in all material respects as of the time of
the Closing as though such representations and warranties had been made on and
as of the applicable Closing Date; provided, however, if any interest in this
Agreement has been transferred in accordance with Section 13 of this Agreement,
and such transferee is acting as a "Buyer" hereunder, then such transferee
shall, as of the time of the Closing, make representations and warranties to the
Seller substantially similar, in scope and effect, to those set forth in Section
5 of this Agreement.
(b) Compliance with Covenants and Conditions. The Buyer shall have
performed and observed, or caused to be performed and observed in all material
respects, all covenants, agreements and conditions hereof to be preformed or
observed by him or it at or before the time of the Closing.
(c) Delivery of Certificate. The Seller shall have received a
favorable certificate, dated as of the applicable Closing Date, signed by the
Buyer, as to the matters set forth in Sections 7(a) and 7(b) of this Agreement.
(d) Opinion of Counsel. The Seller shall have received a favorable
opinion of counsel to the Buyer, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or such other
counsel reasonably satisfactory to the Seller, dated as of the applicable
Closing Date, covering the matters set forth in Exhibit A hereto.
(e) Proceedings. All proceedings and related actions taken by the
Buyer in connection with the transactions contemplated by this Agreement shall
have been reasonably satisfactory to the Seller.
(f) Approvals and Consents. All applicable waiting periods under
the HSR Act shall have expired.
(g) Claims and Proceedings. No person, firm, corporation or
governmental agency shall have instituted an action or proceeding seeking to
restrain, enjoin or prohibit the consummation of the transactions contemplated
by this Agreement.
8. Conditions Precedent to Obligations of the Buyer. The obligations of
the Buyer
8
to perform and observe the covenants, agreements and conditions hereof to be
performed and observed by it with respect to any Closing shall be subject to the
satisfaction at or before the time of such Closing of the following conditions,
any one or more of which may be waived by the Buyer (except for (f) below, which
may not be waived):
(a) Representations and Warranties of the Seller. The
representations and warranties of the Seller contained in Section 4 of this
Agreement shall be true and correct in all material respects as of the time of
the Closing, as though such representations and warranties had been made on and
as of the applicable Closing Date.
(b) Compliance with Covenants and Conditions. The Seller shall have
performed and observed, or caused to be performed or observed in all material
respects, all covenants, agreements and conditions hereof to be performed or
observed by the Seller at or before the time of the Closing.
(c) Delivery of Certificates. The Buyer shall have received
favorable certificates, dated as of the Closing Date, signed by an authorized
officer of the Seller, as to the matters set forth in Sections 8(a) and 8(b) of
this Agreement.
(d) Proceedings. All proceedings and related actions taken by the
Seller in connection with the transactions contemplated by this Agreement shall
have been reasonably satisfactory to counsel for the Buyer.
(e) Approvals and Consents. All applicable waiting periods under
the HSR Act shall have expired.
(f) Claims and Proceedings. No person, firm, corporation or
governmental agency shall have instituted an action or proceeding seeking to
restrain, enjoin or prohibit the consummation of the transactions contemplated
by this Agreement.
9. Termination of Agreement.
(a) Mutual Consent. This Agreement may be terminated by mutual
consent of the Seller and the Buyer.
(b) Condition Failure by the Buyer. This Agreement may be
terminated by the Seller if any of the conditions set forth in Section 8 of this
Agreement shall become impossible to fulfill other than for reasons within the
control of the Seller, and such conditions shall not have been waived by the
Seller.
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(c) Condition Failure by the Seller. This Agreement may be
terminated by the Buyer if any of the conditions set forth in Section 7 of this
Agreement shall become impossible to fulfill other than for reasons within the
control of the Buyer, and such conditions shall not have been waived by the
Buyer.
In the event of termination of this Agreement under Sections 9(a), (b) or
(c), written notice thereof shall be given to the other party and this Agreement
shall terminate. The termination of this Agreement pursuant to this Section 9
shall not terminate, limit or otherwise effect the right of a party hereto to
recover damages or exercise any other remedies against the other party hereto
based upon breach by such party of any representations and warranties contained
in this Agreement or any covenant or agreement of such other party under this
Agreement.
10. Brokers. The parties represent to each other that they have not
engaged any broker or finder in connection with this Agreement, and each party
will hold the other harmless from any claim, demand or liability for any
broker's, finder's or similar fees alleged to have been incurred by such party
or any of its officers, directors, agents or employees in connection with this
Agreement or the transactions contemplated hereby.
11. Expenses. All expenses incurred or to be incurred by the Buyer in
connection with any Closing under this Agreement shall be borne by the Buyer,
and all expenses incurred or to be incurred by the Seller in connection with any
Closing under this Agreement shall be borne by the Seller.
12. Survival of Representations, Warranties and Covenants. The
representations and warranties contained in Sections 4 and 5 of this Agreement
shall survive the execution of this Agreement or any termination of this
Agreement or consummation of the transactions contemplated hereby. Covenants
contained herein shall survive execution of this Agreement or any termination of
the Agreement or consummation of the transactions contemplated hereby in
accordance with their specific terms.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and permitted assigns, but shall not be assignable
by either party hereto without the prior written consent of the other party.
Notwithstanding the foregoing, this Agreement or any interest herein may be
transferred and assigned by the Buyer without the consent of the Seller if the
Buyer shall deliver to the Seller an opinion of counsel, satisfactory to the
Seller, that (i) such transfer and assignment does not require registration
under the Act or under all applicable state securities laws, (ii) does not
impair the exceptions from such registration requirements relied upon by the
Buyer in connection with this Agreement or any sale of Shares hereunder and
(iii) the proposed transferee
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is not an "investment company" or "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended. In addition, any
transfer or assignment in accordance with the prior sentence shall be
conditioned upon receipt by the Seller of an acknowledgement by the proposed
transferee to the effect that such transferee understands and agrees that he,
she or it shall be subject to all of the obligations, terms and conditions of
this Agreement (including without limitation those imposed by Section 3 of this
Agreement) with respect to such transferred interest. Any such permitted
transferee or assignee shall be deemed a "Buyer" for purposes of this Agreement.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby agrees that he shall remain personally liable for all
obligations of any and all "Buyers" hereunder, notwithstanding any permitted
assignment or transfer. In the event of a default or breach by any permitted
transferee or assignee under this Agreement, the Seller may proceed directly
against ▇▇. ▇▇▇▇▇ without the necessity of exhausting remedies against such
transferee or assignee.
14. Notices. Any notice or other communication provided for in, or given
under, this Agreement shall be in writing and shall be deemed to be received
when delivered in person or when sent by facsimile transmission or five days
after mailing by registered or certified mail, return receipt requested,
addressed as follows:
If to the Buyer:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
United Payors & United Providers, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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If to the Seller:
Wilmington Trust Company, as Trustee
for Independent Divestment Trust
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
with a copy to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇▇ Square
10th and ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address with respect to any party as such party shall notify
the others in writing as above provided.
15. Complete Agreement. This Agreement contains the complete agreement
among the parties hereto with respect to the transaction contemplated by this
Agreement and supersedes all prior agreements and understandings among the
parties with respect thereto.
16. Amendments; Waivers. Except as otherwise specifically stated herein,
any provision of this Agreement may be amended by, and only by, a written
instrument executed by the parties. Either party may extend the time for or
waive the performance of any obligation of the other party, waive any
inaccuracies in the representations or warranties by the other party, or waive
compliance by the other party with any of the terms and conditions contained in
this Agreement. Any such extension or waiver shall be in writing and executed
by the party granting such extension or waiver.
17. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware (without regard to principles
of conflict of laws).
18. Invalid Provisions. If any provision hereof is held to be illegal,
invalid or unenforceable under present or future laws effective during the term
of this Agreement, such provision shall be fully severable. This Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never compromised a part hereof, and the
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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 herefrom. In lieu of such illegal, invalid or unenforceable provision
there shall be added automatically to this Agreement a provision as similar in
terms and economic effect to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable.
19. Further Assurances. The Buyer and the Seller agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments necessary or reasonably required by the other party hereto to effect
the purposes hereof.
20. Trustee. It is expressly understood and agreed by the parties hereto
that (a) this Agreement is executed and delivered by Wilmington Trust Company
(the "Trustee"), not individually or personally but solely as trustee of the
Seller in the exercise of the powers and authority conferred and vested in it
under the Amended and Restated Trust Agreement dated as of February 25, 1999
between the Trustee, as the Trustee of the Seller and Principal Health Care,
Inc., as the Transferor and the Initial Holder, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose of binding
only the Seller and (c) under no circumstances shall the Trustee be personally
liable for the payment of any indebtedness or expenses of the Trust or be liable
for the breach or failure of any obligation, representations, warranty or
covenant made or undertaken by the Seller under this Agreement. Notwithstanding
the foregoing, the parties hereto agree that the Trustee is a third party
beneficiary of the provisions of Section 6(c) of this Agreement.
21. Counterparts. This Agreement may be executed in two counterparts and
by the different parties on separate counterparts, each of which shall be deemed
an original but both of which together shall constitute but one instrument.
(SIGNATURE PAGES TO FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
BUYER
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
INDEPENDENT DIVESTMENT TRUST
By: Wilmington Trust Company, solely as Trustee,
and not in its individual capacity
By: _______________________________
Name:
Title:
(SIGNATURE PAGE 1 OF 1 TO THE SECURITY PURCHASE AGREEMENT)
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