EXHIBIT 2.11
AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF SEPTEMBER 9, 1997
BY AND AMONG
TRIAD MEDICAL INC.
PROFESSIONAL ACQUISITION, INC.
PROFESSIONAL EQUIPMENT CO., INC.
AND
ITS STOCKHOLDERS
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................1
Section 1.01. Certain Defined Terms......................................1
ARTICLE II THE MERGER AND RELATED MATTERS..............................4
Section 2.01. Certificate of Merger......................................4
Section 2.02. The Effective Time.........................................4
Section 2.03. Certain Effects of the Merger..............................4
Section 2.04. Effect of the Merger on Capital Stock......................5
Section 2.05. Delivery, Exchange and Payment.............................5
Section 2.06. Fractional Shares..........................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF EACH
STOCKHOLDER.................................................6
Section 3.01. By each Stockholder........................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDERS............................7
Section 4.01. By the Company and Each Stockholder........................7
ARTICLE V REPRESENTATIONS AND WARRANTIES OF TMI AND NEWCO.............8
Section 5.01. By TMI and Newco............................................8
ARTICLE VI COVENANTS EXTENDING TO THE EFFECTIVE TIME...................9
Section 6.01. Of Each Party..............................................9
ARTICLE VII THE CLOSING AND CONDITIONS TO CLOSING AND
CONSUMMATION...............................................9
Section 7.01. The Closing and Certain Conditions.........................9
ARTICLE VIII COVENANTS FOLLOWING THE EFFECTIVE TIME.....................10
Section 8.01. Of Each Party Other Than the Company......................10
ARTICLE IX INDEMNIFICATION............................................11
Section 9.01. Indemnification Rights and Obligations....................11
Section 9.08. Certain Indemnified Damages ...............................11
ARTICLE X LIMITATIONS ON COMPETITION.................................11
Section 10.01. Prohibited Activities....................................11
Section 10.02. Damages..................................................12
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Section 10.03. Reasonable Restraint.....................................12
Section 10.04. Severability; Reformation................................13
Section 10.05. Independent Covenant.....................................13
Section 10.06. Materiality..............................................13
ARTICLE XI GENERAL PROVISIONS.........................................13
Section 11.01. Treatment of Confidential Information....................13
Section 11.02. Restrictions on Transfer of TMI Common Stock.............13
Section 11.03. Brokers and Agents.......................................15
Section 11.04. Assignment; No Third Party Beneficiaries.................15
Section 11.05. Entire Agreement; Amendment; Waivers.....................15
Section 11.06. Counterparts.............................................15
Section 11.07. Expenses.................................................15
Section 11.08. Notices..................................................16
Section 11.09. Governing Law............................................17
Section 11.10. Exercise of Rights and Remedies..........................17
Section 11.11. Time.....................................................17
Section 11.12. Reformation and Severability.............................17
Section 11.13. Remedies Cumulative......................................18
Section 11.14. Respecting the IPO.......................................18
ARTICLE XII TERMINATION................................................18
Section 12.01. Termination of This Agreement............................18
Section 12.02. Liabilities in Event of Termination......................19
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made as
of September 9, 1997, among TRIAD Medical Inc., a Delaware corporation ("TMI"),
Professional Acquisition, Inc., a Connecticut corporation and a wholly owned
subsidiary of TMI ("Newco"), Professional Equipment Co., Inc., a Connecticut
corporation (the "Company"), and the persons listed on the signature pages of
this Agreement under the caption "Stockholders" (collectively, the
"Stockholders," and each of those persons, individually, a "Stockholder").
PRELIMINARY STATEMENT
The parties to this Agreement wish to effect a business combination
pursuant to which:
(i) Newco will merge into the Company (the "Merger") on the
terms and subject to the conditions of this Agreement;
(ii) TMI, VIA mergers involving TMI subsidiaries, will
acquire the stock of all or some of the entities identified in the accompanying
Addendum I (each an "Other Founding Company" and, collectively with the Company,
the "Founding Companies") under agreements similar to this Agreement entered
into among those entities, their equity owners, TMI and subsidiaries of TMI
(collectively, the "Other Agreements"); and
(iii) TMI will effect a public offering of shares of its
common stock.
The respective boards of directors of TMI, Newco and the Company have
approved and adopted this Agreement to effect a transaction subject to Section
351 of the Code.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and undertakings contained in this Agreement, the
parties to this Agreement agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms have the meanings assigned to them below in this Section 1.01.
Capitalized terms used in this Agreement but not defined in this Section 1.01
have the meanings assigned to them in the Preliminary Statement or in Article I
of the Uniform Provisions (the text of which is by this reference incorporated
in this Agreement), as the case may be.
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"AGREEMENT" means this Agreement, including the Disclosure
Statement relating to this Agreement and all attached Schedules, Annexes
and Exhibits, as each of them may be amended, modified or supplemented
from time to time under their provisions or the provisions of this
Agreement.
"BUSINESS CORPORATION ACT" means the Connecticut Business
Corporation Act.
"CASH MERGER CONSIDERATION" means an amount of cash equal to
$1,055,000 minus the Closing Date Indebtedness.
"CEILING AMOUNT" means (i) on or before the first anniversary of
the IPO Closing Date, $1.74 million, and (ii) thereafter, $870,000 less
the amount of all Damages paid or which have been payable by the parties
in question with respect to claims for indemnification on or before the
first anniversary of the IPO Closing Date.
"CLOSING DATE INDEBTEDNESS" means the aggregate unpaid balance
(both principal and accrued interest outstanding) at the IPO Closing
Date under (i) the Company's $60,000 revolving line of credit facility
with Fleet National Bank, (ii) the Company's $440,000 term debt facility
with Fleet National Bank, and (iii) the Company's automobile loans.
"CLOSING MEMORANDUM" means the form of closing memorandum to be
prepared by TMI for the Closing under this Agreement in which there
shall be included the forms of certificates of officers, the opinions of
counsel and certain other documents to be delivered at the Closing as
provided in Article VII.
"COMPANY COMMON STOCK" means the common stock, no par value
$10.00 per share, of the Company.
"COUNSEL FOR TMI AND NEWCO" means ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
"COUNSEL FOR THE COMPANY AND THE STOCKHOLDERS" means Akin, Gump,
Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
"CURRENT BALANCE SHEET" means the unaudited balance sheet of the
Company at June 30, 1997, which is included in the Initial Financial
Statements.
"CURRENT BALANCE SHEET DATE" means June 30, 1997.
"CURRENT DATE" means any day during the 20-day period ending on
the date of the Closing.
"DISCLOSURE STATEMENT" means the written statement executed by
the Company and each of the Stockholders and delivered to TMI prior to
the execution and delivery of this
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Agreement, in which either (a) exceptions are taken to each of certain
of the representations and warranties made by the Company and the
Stockholders in this Agreement or (b) it is confirmed that no exception
is taken to that representation and warranty.
"INITIAL FINANCIAL STATEMENTS" means (a) the unaudited balance
sheets of the Company at March 31, 1996 and 1997 and the related
unaudited statements of income, retained earnings and cash flows for
each of the Company's three fiscal years in the three-year period ended
March 31, 1997, and (b) the Current Balance Sheet and the related
unaudited statements of income and retained earnings and cash flows for
the three-month period ended on the Current Balance Sheet.
"MAJORITY STOCKHOLDERS" means any Stockholder or combination of
Stockholders who at the date of this Agreement own shares of Company
Common Stock representing more than two-thirds of the total number of
shares of Company Common Stock outstanding at the date of this
Agreement.
"MERGER CONSIDERATION" has the meaning specified in Section 2.04.
"NEWCO" means Professional Acquisition, Inc., a Connecticut
corporation.
"PRO RATA SHARE" means for each Stockholder the fraction
expressed as a percentage and set forth in Schedule 2.04, (a) the
numerator of which is the number of shares of outstanding Company Common
Stock owned by that Stockholder, as set forth in Schedule 2.04, and (b)
the denominator of which is the total number of shares of outstanding
Company Common Stock owned by all Stockholders, as set forth in Schedule
2.04.
"RESPONSIBLE OFFICER" means ▇▇▇▇▇ ▇. ▇▇▇▇.
"RESTRICTED STOCKHOLDER" has the meaning specified in Section
10.01.
"SCHEDULED AGREEMENTS" means the agreements described in Schedule
4.11.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement entered
into as of September 9, 1997, among TMI, the Stockholders and the other
Persons party thereto.
"SURVIVING CORPORATION" means the Company, which is to be
designated in the Certificate of Merger as the surviving corporation of
the Merger.
"TERRITORY" has the meaning specified in Section 10.01.
"THRESHOLD AMOUNT" means $348,000.
"TMI" means Triad Medical Inc., a Delaware corporation.
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"TMI ACQUISITION CANDIDATE" means any Entity engaged in any of
the businesses of distributing medical or healthcare products to
hospitals, clinics, physicians, laboratories, pharmacies, alternate care
sites or other medical or healthcare facilities or conceiving,
designing, developing or testing technologically advanced medical or
healthcare products, and which was called on by any of the Company, TMI
or a Subsidiary of the Company or TMI in connection with the possible
acquisition by any of them of that Entity or with respect to which any
of them has made an acquisition analysis.
"TRANSFER TAXES" has the meaning specified in Section 11.07.
"UNIFORM PROVISIONS" means the Uniform Provisions of TMI for the
Acquisition of Founding Companies attached as Annex 1 to this Agreement.
ARTICLE II
THE MERGER AND RELATED MATTERS
Section 2.1 CERTIFICATE OF MERGER. Subject to the terms and conditions
of this Agreement, the Company will cause a Certificate of Merger to be duly
executed and delivered on or promptly after the date of the Closing to the
Secretary of State of the State of Connecticut.
Section 2.2 THE EFFECTIVE TIME. The effective time of the Merger (the
"Effective Time") will be the time on the IPO Closing Date which the Certificate
of Merger specifies or, if the Certificate of Merger does not specify another
time, 8:00 a.m., eastern time, on the IPO Closing Date.
Section 2.3 CERTAIN EFFECTS OF THE MERGER. At and as of the Effective
Time, (a) Newco will be merged with and into the Company in accordance with the
provisions of the Business Corporation Act, (b) Newco will cease to exist as a
separate legal entity, (c) the articles of incorporation of the Company will be
amended to change its authorized capital stock to 1,000 shares, par value $1.00
per share, of Common Stock, (d) the Company will be the Surviving Corporation
and, as such, will, all with the effect provided by the Business Corporation
Act, (i) possess all the properties and rights, and be subject to all the
restrictions and duties, of the Company and Newco and (ii) be governed by the
laws of the State of Connecticut, (e) the Charter Documents of the Company then
in effect (after giving effect to the amendment of the Company's articles of
incorporation specified in clause (c) of this sentence) will become and
thereafter remain (until changed in accordance with (i) applicable law, in the
case of the articles of incorporation or (ii) their terms, in the case of the
bylaws) the Charter Documents of the Surviving Corporation, (f) the initial
board of directors of the Surviving Corporation will be the Persons named in
Schedule 2.03, and those Persons will hold the office of director of the
Surviving Corporation subject to the provisions of the applicable laws of the
State of Connecticut and the Charter Documents of the Surviving Corporation, and
(g) the initial officers of the Surviving Corporation will be as set forth in
Schedule 2.03, and each of those Persons will
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serve in each office specified for that Person in Schedule 2.03, subject to the
provisions of the Charter Documents of the Surviving Corporation, until that
Person's successor is duly elected to, and, if necessary, qualified for, that
office.
Section 2.4 EFFECT OF THE MERGER ON CAPITAL STOCK. As of the Effective
Time, as a result of the Merger and without any action on the part of any holder
thereof:
(i) the shares of Company Common Stock issued and outstanding
immediately prior to the Effective Time will (i) be converted into the
right to receive, without interest, on surrender of the certificate
evidencing those shares, (a) the Cash Merger Consideration and (b)
48,929 shares of TMI Common Stock (collectively, the "Merger
Consideration"), (ii) cease to be outstanding and to exist, and (iii) be
canceled and retired;
(ii) each share of Company Common Stock held in the treasury of
the Company or any Company Subsidiary will (i) cease to be outstanding
and to exist and (ii) be canceled and retired; and
(iii) each share of Newco Common Stock issued and outstanding
immediately prior to the Effective Time will be converted into one share
of Common Stock, par value $1.00 per share, of the Surviving
Corporation, and the shares of Common Stock of the Surviving Corporation
issued on conversion will constitute all the issued and outstanding
shares of Capital Stock of the Surviving Corporation.
Each holder of a certificate representing shares of Company Common Stock
immediately prior to the Effective Time will, as of the Effective Time and
thereafter, cease to have any rights respecting those shares other than the
right to receive, without interest, the Merger Consideration and the additional
cash, if any, owing with respect to those shares as provided in Section 2.06.
Section 2.5 DELIVERY, EXCHANGE AND PAYMENT.
(a) At or after the Effective Time: (i) each Stockholder, as the
holder of certificates representing shares of Company Common Stock,
will, on surrender of his certificates to TMI (or any agent which may be
appointed by TMI for purposes of this Section 2.05), receive, and TMI
will pay and issue, or cause to be paid and issued, to each Stockholder,
in each case, subject to the provisions of Section 2.06, the Merger
Consideration; and (ii) until any certificate representing Company
Common Stock has been surrendered and replaced pursuant to this Section
2.05, that certificate will, for all purposes, be deemed to evidence
ownership of the number of whole shares of TMI Common Stock included in
the Merger Consideration payable in respect of that certificate pursuant
to Section 2.04. All shares of TMI Common Stock issuable in the Merger
will be deemed for all purposes to have been issued by TMI at the
Effective Time. All cash included in the Merger Consideration shall be
paid by TMI's company check or checks, one or more wire transfers to
accounts
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designated by the respective Stockholders at least two New York business
days before the IPO Closing Date, or by certified or official bank check
or checks, at TMI's option.
(b) Each Stockholder will deliver to TMI (or any agent that may
be appointed by TMI for purposes of this Section 2.05) on or before the
IPO Closing Date the certificates representing Company Common Stock
owned by the Stockholder, duly endorsed in blank by him, or accompanied
by duly executed stock powers in blank, and with all necessary transfer
tax and other revenue stamps, acquired at his expense, affixed and
canceled. Each Stockholder shall cure any deficiencies in the
endorsement of the certificates or other documents of conveyance
respecting, or in the stock powers accompanying, the certificates
representing Company Common Stock delivered by him.
(c) No dividends (or interest) or other distributions declared or
earned after the Effective Time with respect to TMI Common Stock and
payable to the holders of record thereof after the Effective Time will
be paid to the holder of any unsurrendered certificates representing
shares of Company Common Stock for which shares of TMI Common Stock have
been issued in the Merger until those certificates are surrendered as
provided herein, but (i) on such surrender TMI will cause to be paid, to
the Person in whose name the certificates representing such shares of
TMI Common Stock shall then be issued, the amount of dividends or other
distributions previously paid with respect to such whole shares of TMI
Common Stock with a record date, or which have accrued, subsequent to
the Effective Time, but prior to surrender, and the amount of any cash
payable to such Person for and in lieu of fractional shares pursuant to
Section 2.06 and (ii) at the appropriate payment date or as soon as
practicable thereafter, TMI will cause to be paid to that Person the
amount of dividends or other distributions with a record date, or which
have been accrued, subsequent to the Effective Time, but which are not
payable until a date subsequent to surrender, which are payable with
respect to such whole shares of TMI Common Stock, subject in all cases
to any applicable escheat laws. No interest will be payable with respect
to the payment of such dividends or other distributions or cash for and
in lieu of fractional shares on surrender of outstanding certificates.
Section 2.6 FRACTIONAL SHARES. Notwithstanding any other provision of
this Article II, no fractional shares of TMI Common Stock will be issued, and
any Stockholder otherwise entitled to receive a fractional share of TMI Common
Stock but for this Section 2.06 will instead be entitled to receive a cash
payment for and in lieu thereof in the amount (rounded to the nearest whole
cent) equal to that Person's fractional interest in a share of TMI Common Stock
multiplied by the IPO Price.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Section 3.1 BY EACH STOCKHOLDER. Each Stockholder, severally as to
himself or herself only, represents and warrants to TMI that all the following
representations and warranties in this Article III are true and correct:
(a) (i) the Stockholder will be acquiring the shares of TMI
Common Stock to be issued pursuant to Section 2.04 to the Stockholder
solely for the Stockholder's account, for investment purposes only and
with no current intention or plan to distribute, sell or otherwise
dispose of any of those shares in connection with any distribution; (ii)
the Stockholder is not a party to any agreement or other arrangement for
the disposition of any shares of TMI Common Stock other than this
Agreement, the Stockholders Agreement and the Registration Rights
Agreement; (iii) unless otherwise specified on Schedule 3.01, the
Stockholder is an "accredited investor" as defined in Securities Act
Rule 501 (a); (iv) the Stockholder (A) is able to bear the economic risk
of an investment in the TMI Common Stock to be acquired by him or her
pursuant to this Agreement, (B) can afford to sustain a total loss of
that investment, (C) has such knowledge and experience in financial and
business matters that he or she is capable of evaluating the merits and
risks of the proposed investment in the TMI Common Stock, (D) has had an
adequate opportunity to ask questions and receive answers from the
officers of TMI concerning any and all matters relating to the
transactions contemplated by this Agreement, including the background
and experience of the current and proposed officers and directors of
TMI, the plans for the operations of the business of TMI, the business,
operations and financial condition of the Other Founding Companies and
any plans of TMI for additional acquisitions, and (E) has asked all
questions of the nature described in preceding clause (D), and all those
questions have been answered to his or her satisfaction; and
(b) the representations and warranties contained in Article III
of the Uniform Provisions (the text of which Article hereby is
incorporated herein by this reference) are true and correct, and the
agreements set forth therein are hereby agreed to.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDERS
Section 4.1 BY THE COMPANY AND EACH STOCKHOLDER. The Company and each
Stockholder jointly and severally represent and warrant to, and agree with, TMI
that all the following representations and warranties in this Article IV are
true and correct:
(a) the Organization State of the Company is the State of
Connecticut, and the Company (i) is a corporation duly organized,
validly existing and in good standing under the laws of that State, (ii)
has all requisite corporate power and authority under those laws and its
Charter Documents to own or lease and to operate its properties and to
carry on its business as now conducted, and (iii) is duly qualified and
in good standing as a foreign corporation in all jurisdictions (other
than its Organization State) in which it owns or leases property or in
which the carrying on of its business as now conducted so requires
except where the failure to be so qualified, singly or in the aggregate,
would not have a Material Adverse Effect;
(b) the authorized Capital Stock of the Company is comprised of
5,000 shares of Company Common Stock, of which 1,000 shares have been
issued and are now outstanding and no shares are held by the Company as
treasury shares, and no outstanding Derivative Securities of the Company
exist;
(c) the representations and warranties contained in Article IV of
the Uniform Provisions (the text of which Article hereby is incorporated
herein by this reference) are true and correct, and the agreements set
forth in that Article IV are agreed to.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TMI AND NEWCO
Section 5.1 BY TMI AND NEWCO. TMI and Newco jointly and severally
represent and warrant to the Company and each Stockholder that all the following
representations and warranties in this Article V are true and correct: (a) Newco
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Connecticut, (b) no Derivative Securities of Newco are
outstanding, (c) Newco has been organized for the sole purpose of participating
in the Merger and has not, and will not, engage in any activities other than
those necessary to effectuate the Merger, and (d) the representations and
warranties contained in Article V of the Uniform Provisions (the text of which
Article hereby is incorporated herein by this reference) are true and correct.
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ARTICLE VI
COVENANTS EXTENDING TO THE EFFECTIVE TIME
Section 6.1 OF EACH PARTY. Until the Effective Time, subject to the
waiver provisions of Section 11.05, each party hereto will comply with each
covenant for which provision is made in Article VI of the Uniform Provisions
(the text of which Article VI is hereby incorporated herein by this reference)
to be performed or observed by that party.
ARTICLE VII
THE CLOSING AND CONDITIONS TO CLOSING AND CONSUMMATION
Section 7.1 THE CLOSING AND CERTAIN CONDITIONS.
(a) THE CLOSING. On or before the IPO Pricing Date, the parties
hereto will take all actions necessary to (i) effect the Merger on the
IPO Closing Date (including, as permitted by the Business Corporation
Act (A) the execution of a Certificate of Merger meeting the
requirements of the Business Corporation Act and providing that the
Merger will become effective on the IPO Closing Date and (B) the filing
of the Certificate with the Secretary of State of the State of
Connecticut), (ii) verify the existence and ownership of the
certificates evidencing the Company Common Stock to be exchanged for the
Merger Consideration pursuant to Section 2.05, and (iii) satisfy the
document delivery requirements to which the obligations of the parties
to effect the Merger and the other transactions contemplated hereby are
conditioned by the provisions of this Article VII (all those actions
collectively being the "Closing"). The Closing will take place at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ at
10:00 a.m., Houston time, or at such later time on the IPO Pricing Date
as TMI shall specify by written notice to ▇▇▇▇▇ ▇. ▇▇▇▇. The actions
taken at the Closing will not include the completion of either the
Merger or the delivery of the Company Common Stock or the Merger
Consideration pursuant to Section 2.05. Instead, on the IPO Closing
Date, the Certificate of Merger will become effective pursuant to
Section 2.02, and all transactions contemplated by this Agreement to be
closed or completed on or before the IPO Closing Date, including the
surrender of the Company Common Stock in exchange for the Merger
Consideration (including a certified check or checks in an amount equal
to the cash portion of the Merger Consideration) will be closed or
completed, as the case may be. During the period from the Closing to the
IPO Closing Date, this Agreement may be terminated by the parties only
pursuant to Section 12.01 (b)(i).
(b) CERTAIN CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AND THE
STOCKHOLDERS. The obligations of the Company and the Stockholders with
respect to the actions to be taken by them at or before the Closing are
subject to the satisfaction on or before the date of the Closing, or
waiver by them pursuant to Section 11.05, of all the conditions set
forth in
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Sections 7.02(a) and 7.03. The obligations of the Stockholders with
respect to the actions to be taken on the IPO Closing Date are subject
to the satisfaction on that date of the following conditions: (i) the
Stockholders Agreement then shall be in full force and effect; and (ii)
all the conditions set forth in Sections 7.02(b) and 7.03.
(c) CERTAIN CONDITIONS TO THE OBLIGATIONS OF TMI AND NEWCO. The
obligations of TMI and Newco with respect to actions to be taken by them
at or before the Closing are subject to the satisfaction on or before
the date of the Closing, or waiver by them pursuant to Section 11.05, of
the following conditions: (i) the Company shall have delivered to TMI a
copy of the articles of incorporation, as amended to the date of the
Closing and certified by the Secretary of State of the State of
Connecticut as of a Current Date, of the Company; and (ii) all the
conditions set forth in Sections 7.02(a) and 7.04(a).
(d) The obligations of TMI and Newco with respect to the actions
to be taken on the IPO Closing Date are subject to the satisfaction on
that date of the following conditions: (i) the Employment Agreement then
shall be in full force and effect; and (ii) all the conditions set forth
in Sections 7.02(b) and 7.04(b).
(e) The text of Article VII of the Uniform Provisions hereby is
incorporated herein by this reference.
ARTICLE VIII
COVENANTS FOLLOWING THE EFFECTIVE TIME
Section 8.1 OF EACH PARTY OTHER THAN THE COMPANY. From and after the
Effective Time, subject to the waiver provisions of Section 11.05, each party
hereto (other than the Company) will comply with each covenant for which
provision is made in Article VIII of the Uniform Provisions (the text of which
Article hereby is incorporated herein by this reference) to be performed or
observed by that party.
ARTICLE IX
INDEMNIFICATION
Section 9.1 INDEMNIFICATION RIGHTS AND OBLIGATIONS.
(a) The text of Article IX of the Uniform Provisions hereby is
incorporated herein by this reference.
(b) Notwithstanding, and in supplementation of, Sections 9.03
through 9.07:
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(i) subject to the provisions of this paragraph (b), the
Stockholders covenant and agree that they, jointly and severally, will
indemnify each TMI Indemnified Party against, and hold each TMI
Indemnified Party harmless from and in respect of, all Damages that
arise from, are based on or relate or otherwise are attributable to any
claims or assessments against the Company for state sales taxes payable
in respect of sales of goods or services made by the Company or any of
its Subsidiaries during any period ended on or before the Current
Balance Sheet Date, whether or not reserved against in any balance sheet
included in the Financial Statements, to the extent that the aggregate
amount of all such Damages (herein called "Specially Indemnified
Damages") exceed $100,000, and then only to the extent of that excess;
(ii) the amount of the Specially Indemnified Damages as to which
the Stockholders shall be required under clause (i) of this Section 9.08
to indemnify the TMI Indemnified Parties shall not be reduced as a
result of any limitation set forth in the first sentence of paragraph
(a) of Section 9.07, and shall not be considered as TMI Indemnified
Losses for purposes of the first sentence of Section 9.07(a); and
(iii)the amount of the Specially Indemnified Damages in respect
of which the Stockholders shall be required under clause (i) of this
Section 9.08 to indemnify the TMI Indemnified Parties shall be taken
into account and included for purposes of determining the aggregate
joint and several liability of the Company and the Stockholders, and the
aggregate liability of each Stockholder under this Agreement, under the
second sentence of Section 9.07(a) of this Agreement.
ARTICLE X
LIMITATIONS ON COMPETITION
Section 10.1 PROHIBITED ACTIVITIES. Each Stockholder identified on
Schedule 10.01 (each a "Restricted Stockholder"), and, in the case of paragraphs
(b) and (d) below of this Section 10.01, each Stockholder, severally agrees that
he will not during the period beginning on the date hereof and ending on the
third anniversary of the date hereof, directly or indirectly, for any reason,
for his own account or on behalf of or together with any other Person:
(a) engage as an officer, director or in any other managerial
capacity or as an owner, co-owner or other investor of or in, whether as
an employee, independent contractor, consultant or advisor, or as a
sales representative or distributor of any kind, in any business selling
any products or providing any services in competition with the Company,
any Company Subsidiary or TMI or any Subsidiary of TMI (TMI and its
Subsidiaries collectively being "TMI" for purposes of this Article X)
within any territory surrounding any sales office or distribution center
(each a "facility") in which any of the Company or the Company
Subsidiaries was engaged in business on the date hereof or immediately
prior to the Effective
11
Time (for purposes of this Article X, the territory surrounding a
facility shall be: (i) the city, town or village in which the facility
is located, (ii) the county or parish in which the facility is located,
(iii) the counties or parishes contiguous to the county or parish in
which the facility is located, (iv) the area located within 100 miles of
the facility and (v) the area in which the facility regularly makes
sales or provides services, all of such locations being herein
collectively called the "Territory");
(b) call on any natural person who is at that time employed by
the Company, any Company Subsidiary or TMI in any managerial capacity
with the purpose or intent of attracting that person from the employ of
the Company, any Company Subsidiary or TMI, provided that the
Stockholder may call on and hire any of his Immediate Family Members;
(c) call on any Person that at that time is, or at any time
within one year prior to that time was, a customer of the Company, any
Company Subsidiary or TMI within the Territory, (i) for the purpose of
soliciting or selling any product or service in competition with the
Company, any Company Subsidiary or TMI within the Territory and (ii)
with the knowledge of that customer relationship; or
(d) call on any TMI Acquisition Candidate, with the knowledge of
that Person's status as an TMI Acquisition Candidate, for the purpose of
acquiring that Person or arranging the acquisition of that Person by any
Person other than TMI.
Notwithstanding the foregoing, any Restricted Stockholder may own and hold as a
passive investment up to 6% of the outstanding Capital Stock of a competing
Entity if that class of Capital Stock is publicly traded.
Section 10.2 DAMAGES. Because of the difficulty of measuring economic
losses to TMI as a result of any breach by a Restricted Stockholder of his
covenants in Section 10.01, and because of the immediate and irreparable damage
that could be caused to TMI for which it would have no other adequate remedy,
each Restricted Stockholder agrees that TMI may enforce the provisions of
Section 10.01 by injunctions and restraining orders against that Restricted
Stockholder if he breaches any of those provisions.
Section 10.3 REASONABLE RESTRAINT. The parties hereto each agree that
Sections 10.01 and 10.02 impose a reasonable restraint on the Restricted
Stockholders in light of the activities and business of TMI on the date hereof,
the current business plans of TMI and the investment by each Restricted
Stockholder in TMI as a result of the Merger.
Section 10.4 SEVERABILITY; REFORMATION. The covenants in this Article X
are severable and separate, and the unenforceability of any specific covenant in
this Article X is not intended by any party hereto to, and shall not, affect the
provisions of any other covenant in this Article X. If any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth in Section 10.01 are unreasonable as applied to any Restricted
Stockholder, the parties hereto,
12
including that Restricted Stockholder, acknowledge their mutual intention and
agreement that those restrictions be enforced to the fullest extent the court
deems reasonable, and thereby shall be reformed to that extent as applied to
that Restricted Stockholder and any other Restricted Stockholder similarly
situated.
Section 10.5 INDEPENDENT COVENANT. All the covenants in this Article X
are intended by each party hereto to, and shall, be construed as an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of any Restricted Stockholder against TMI, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by TMI of any covenant in this Article X. It is specifically agreed
that the period specified in Section 10.01 shall be computed in the case of each
Restricted Stockholder by excluding from that computation any time during which
that Restricted Stockholder is in violation of any provision of Section 10.01.
The covenants contained in this Article X shall not be affected by any breach of
any other provision of this Agreement by any party hereto.
Section 10.6 MATERIALITY. The Company and each Stockholder, severally
and not jointly with any other Person, hereby agree that this Article X is a
material and substantial part of the transactions contemplated hereby.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 TREATMENT OF CONFIDENTIAL INFORMATION. Each party hereto
will comply with each covenant for which provision is made in Section 11.01 of
the Uniform Provisions (the text of which Section hereby is incorporated herein
by this reference) to be performed or observed by that party.
Section 11.2 RESTRICTIONS ON TRANSFER OF TMI COMMON STOCK.
(a) During the two-year period ending on the second anniversary
of the IPO Closing Date (the "Restricted Period") no Stockholder
voluntarily will, except pursuant to and in accordance with the
applicable provisions of the Registration Rights Agreement: (i) sell,
assign, exchange, transfer, encumber, pledge, distribute, appoint or
otherwise dispose of (A) any shares of TMI Common Stock received by any
Stockholder in the Merger or (B) any interest in (including any option
to buy or sell) any of those shares of TMI Common Stock, in whole or in
part and TMI will have no obligation to, and shall not, treat any such
attempted transfer as effective for any purpose; or (ii) engage in any
transaction, whether or not with respect to any shares of TMI Common
Stock or any interest therein, the intent or effect of which is to
reduce the risk of owning the shares of TMI Common Stock acquired
pursuant to Section 2.04 (including, for example engaging in put, call,
short-sale, straddle or similar market transactions); PROVIDED, HOWEVER,
that this Section 11.02 shall not restrict
13
any transfer of TMI Common Stock acquired by a Stockholder pursuant to
Section 2.04 to any of that Stockholder's Related Persons who agree in
writing to be bound by the provisions of Section 11.01 and this Section
11.02. The certificates evidencing the TMI Common Stock delivered to
each Stockholder pursuant to Section 2.05 will bear a legend
substantially in the form set forth below and containing such other
information as TMI may deem necessary or appropriate:
EXCEPT PURSUANT TO THE TERMS OF THE AGREEMENT AND PLAN OF
REORGANIZATION AMONG THE ISSUER, THE HOLDER OF THIS CERTIFICATE
AND THE OTHER PARTIES THERETO, THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE VOLUNTARILY SOLD, ASSIGNED, EXCHANGED,
TRANSFERRED, ENCUMBERED, PLEDGED, DISTRIBUTED, APPOINTED OR
OTHERWISE DISPOSED OF, AND THE ISSUER SHALL NOT BE REQUIRED TO
GIVE EFFECT TO ANY ATTEMPTED VOLUNTARY SALE, ASSIGNMENT,
EXCHANGE, TRANSFER, ENCUMBRANCE, PLEDGE, DISTRIBUTION,
APPOINTMENT OR OTHER DISPOSITION OF ANY OF THOSE SHARES, DURING
THE TWO-YEAR PERIOD ENDING ON [DATE THAT IS THE SECOND
ANNIVERSARY OF THE IPO CLOSING DATE] (THE "RESTRICTED PERIOD").
ON THE WRITTEN REQUEST OF THE HOLDER OF THIS CERTIFICATE, THE
ISSUER AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP
ORDER PLACED WITH THE TRANSFER AGENT) AFTER THE DATE SPECIFIED
ABOVE.
(b) Each Stockholder, severally and not jointly with any other
Person, (i) acknowledges that the shares of TMI Common Stock to be
delivered to that Stockholder pursuant to Section 2.04 (A) have not been
and, except pursuant to the Registration Rights Agreement, if
applicable, will not be registered under the Securities Act and
therefore may not be resold by that Stockholder without compliance with
the Securities Act and (B) will, as a result of their restrictions on
transferability which are imposed by this Agreement during the
Restricted Period, have a value materially less at the Effective Time
than the value of then freely tradeable shares of TMI Common Stock, and
(ii) covenants that none of the shares of TMI Common Stock issued to
that Stockholder pursuant to Section 2.04 will be offered, sold,
assigned, pledged, hypothecated, transferred or otherwise disposed of
except after full compliance with all the applicable provisions of the
Securities Act and the rules and regulations of the SEC and applicable
state securities laws and regulations. All certificates evidencing
shares of TMI Common Stock issued pursuant to Section 2.04 will bear the
following legend in addition to the legend prescribed by Section
11.02(a):
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY ONLY BE SOLD OR OTHERWISE
TRANSFERRED IF THE HOLDER HEREOF COMPLIES WITH THAT LAW AND OTHER
APPLICABLE SECURITIES LAWS.
14
In addition, certificates evidencing shares of TMI Common Stock issued
pursuant to Section 2.04 to each Stockholder will bear any legend
required by the securities or blue sky laws of the state in which that
Stockholder resides.
Section 11.3 BROKERS AND AGENTS. The Stockholders jointly and severally
represent and warrant to TMI that the Company has not directly or indirectly
employed or become obligated to pay any broker or similar agent in connection
with the transactions contemplated hereby and agree, without regard to the
Threshold Amount limitations set forth in Article IX, to indemnify TMI against
all Damage Claims arising out of claims for any and all fees and commissions of
brokers or similar agents employed or promised payment by the Company.
Section 11.4 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement
and the rights of its parties may not be assigned (except by operation of law)
and shall be binding on and inure to the benefit of the parties hereto, the
successors of TMI, and the heirs and legal representatives of the Stockholders
(and, in the case of any trust, the successor trustees of that trust). Neither
this Agreement nor any other Transaction Document is intended, or shall be
construed, deemed or interpreted, to confer on any Person not a party hereto or
thereto any rights or remedies hereunder or thereunder, except as provided in
Section 6.05(b) or 11.14, in Article IX or as otherwise provided expressly
herein or therein.
Section 11.5 ENTIRE AGREEMENT; AMENDMENT; WAIVERS. This Agreement
constitutes the entire agreement and understanding among the Stockholders, the
Company, Newco and TMI and supersede all prior agreements and understandings,
both written and oral, relating to the subject matter of this Agreement. This
Agreement may be amended, modified or supplemented, and any right hereunder may
be waived, if, but only if, that amendment, modification, supplement or waiver
is in writing and signed by the Majority Stockholders, the Company and TMI. The
waiver of any of the terms and conditions of this Agreement shall not be
construed or interpreted as, or deemed to be, a waiver of any of its other term
or conditions.
Section 11.6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be an original, but all of which together will
constitute one and the same instrument.
Section 11.7 EXPENSES. Whether or not the transactions contemplated
hereby are consummated, (a) TMI will pay (i) the fees, expenses and
disbursements of TMI and Newco and their Representatives which are incurred in
connection with the subject matter of this Agreement and any amendments thereto,
including all costs and expenses incurred in the performance of and compliance
with all conditions to be performed by TMI and Newco under this Agreement,
including the costs of preparing the Registration Statement, and (ii) the fees,
expenses and disbursements of Counsel for the Company and the Stockholders
incurred in connection with the subject matter of this Agreement and the
Registration Statement on or before the IPO Closing Date, (b) the Company will
pay any fees, expenses and disbursements of any counsel (other than Counsel for
the Company and the Stockholders) incurred in connection with the subject matter
of this Agreement and the Registration Statement on or before the IPO Closing
Date, up to a maximum of $25,000 in the
15
aggregate, and (c) the Stockholders will pay from personal funds, and not from
funds of the Company or any Company Subsidiary, (i) all sales, use, transfer and
other similar taxes and fees (collectively, "Transfer Taxes") incurred in
connection with the transactions contemplated hereby, and (ii) the fees,
expenses and disbursements in excess of $25,000 in the aggregate, of any counsel
(other than Counsel for the Company and the Stockholders) incurred in connection
with the subject matter of this Agreement and the Registration Statement on or
before the IPO Closing Date. The Stockholders will file all necessary
documentation and Returns with respect to all Transfer Taxes. In addition, each
Stockholder acknowledges that he, and not the Company or TMI or the Surviving
Corporation, will pay all Taxes due upon receipt of the consideration payable to
that Stockholder pursuant to Article II.
Section 11.8 NOTICES. All notices required or permitted hereunder shall
be in writing, and shall be deemed to be delivered and received (a) if
personally delivered or if delivered by telex, telegram, facsimile or courier
service, when actually received by the party to whom notice is sent or (b) if
delivered by mail (whether actually received or not), at the close of business
on the third Houston, Texas business day next following the day when placed in
the mail, postage prepaid, certified or registered, 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):
(i) if to TMI or Newco, addressed to it at:
TRIAD Medical Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
Chief Executive Officer
with copies (which shall not constitute notice for purposes of
this Agreement) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Stockholders, addressed to them at their
addresses set forth in Schedule 2.04; and
16
(iii) if to the Company, addressed to it at:
Professional Equipment Co., Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 329
Guildford, Connecticut 06437
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
with copies (which shall not constitute notice for purposes of
this Agreement) to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
SECTION 11.9 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 OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF, PROVIDED, HOWEVER,
THAT: (A) ARTICLE X AND THE RIGHTS AND OBLIGATIONS THEREUNDER OF THE PARTIES
THERETO WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF CONNECTICUT WITHOUT REGARD TO THE CONFLICTS OF
LAW PROVISIONS THEREOF AND (B) MATTERS PERTAINING SOLELY TO THE MERGER SHALL BE
GOVERNED BY THE BUSINESS CORPORATION ACT.
Section 11.10 EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise
provided herein, no delay or omission in the exercise of any right, power or
remedy accruing to any party hereto as a result of any breach or default
hereunder by any other party hereto shall impair any such right, power or
remedy, nor shall it be construed, deemed or interpreted as a waiver of or
acquiescence in any such breach or default, or of any similar breach or default
occurring later; nor shall any waiver of any single breach or default be
construed, deemed or interpreted as a waiver of any other breach or default
hereunder occurring before or after that waiver.
Section 11.11 TIME. Time is of the essence in the performance of this
Agreement in all respects.
Section 11.12 REFORMATION AND SEVERABILITY. If any provision of this
Agreement is invalid, illegal or unenforceable, that provision shall, to the
extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the parties hereto as
expressed herein, and if such a modification is not possible, that provision
shall be severed from this Agreement, and in either case the validity, legality
and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.
17
Section 11.13 REMEDIES CUMULATIVE. Except as otherwise specifically
provided in Section 9.06, no right, remedy or election given by any term of this
Agreement shall be deemed exclusive, but each shall be cumulative with all other
rights, remedies and elections available at law or in equity.
Section 11.14 RESPECTING THE IPO. Each of the Company and the
Stockholders acknowledges and agrees that: (a) no firm commitment, binding
agreement or promise or other assurance of any kind, whether express or implied,
oral or written, exists at the date hereof that the Registration Statement will
become effective or that the IPO will occur at a particular price or within a
particular range of prices or occur at all; (b) neither TMI or any of its
Representatives nor any prospective underwriters in the IPO will have any
liability to the Company, the Stockholders or any of their respective Affiliates
or associates for any failure of (i) the Registration Statement to become
effective (provided, however, that TMI will use its reasonable best efforts to
cause the Registration Statement to become effective prior to January 31, 1998)
or (ii) the IPO to occur at a particular price or within a particular range of
prices or to occur at all; and (c) the decision of Stockholders to enter into
this Agreement, or to vote in favor of or consent to the Merger, has been or
will be made independent of, and without reliance on, any statements, opinions
or other communications of, or due diligence investigations that have been or
will be made or performed by, any prospective underwriter relative to TMI or the
IPO. The Underwriter shall have no obligation to any of the Company and the
Stockholders with respect to any disclosure contained in the Registration
Statement.
ARTICLE XII
TERMINATION
Section 12.1 TERMINATION OF THIS AGREEMENT.
(a) This Agreement may be terminated at any time prior to the
Closing solely:
(i) by the mutual written consent of TMI and the Company;
(ii) by the Majority Stockholders or the Company, on the one
hand, or by TMI, on the other hand, if the transactions
contemplated by this Agreement to take place at the Closing shall
not have been consummated by January 31, 1998, unless the failure
of such transactions to be consummated results from the willful
failure of the party (or in the case of the Stockholders and the
Company, any of them) seeking to terminate this Agreement to
perform or adhere to any agreement required hereby to be
performed or adhered to by it prior to or at the Closing or
thereafter on the IPO Closing Date;
(iii) by the Majority Stockholders or the Company, on the
one hand, or by TMI, on the other hand, if a material breach or
default shall be made by the other party (or in the case of the
Stockholders and the Company, any of them) in the
18
observance or in the due and timely performance of any of the
covenants, agreements or conditions contained herein; or
(iv) by TMI if it is entitled to do so as provided in
Section 6.07;
(b) This Agreement may be terminated after the Closing solely:
(i) by TMI or the Company if the Underwriting Agreement is
terminated pursuant to its terms after the Closing and prior to
the consummation of the IPO; or
(ii) automatically and without action on the part of any
party hereto if the IPO is not consummated within 15 New York
City business days after the date of the Closing.
(c) If this Agreement is terminated pursuant to this Section
12.01, the Merger will be deemed for all purposes to have been abandoned
and of no force or effect. If this Agreement is terminated pursuant to
this Section 12.01 after the Certificate of Merger has been filed with
the Secretary of State of the State of Connecticut, but before the IPO
has been consummated, TMI will take all actions that Counsel for the
Company and the Stockholders advises TMI are required by the applicable
laws of the State of Connecticut to rescind the Merger.
Section 12.2 LIABILITIES IN EVENT OF TERMINATION. If this Agreement is
terminated pursuant to Section 12.01, there shall be no liability or obligation
on the part of any party hereto except (a) as provided in Section 11.07, (b)
each Stockholder shall be severally liable for any breach by that Stockholder of
any covenant made severally by that Stockholder in this Agreement and for any
breach by that Stockholder of any representation and warranty made by that
Stockholder severally in Article III and which that Stockholder knew was untrue
or inaccurate at the date of this Agreement, and (c) the Company shall be liable
for any breach by the Company of any covenant made by the Company in this
Agreement and for any breach by the Company of any representation and warrant
made by the Company in Article IV and which the Company knew as untrue or
inaccurate at the date of this Agreement, and (d) TMI shall be liable for any
breach by TMI of any covenant made by TMI in this Agreement and for any breach
by TMI of any representation and warranty made by TMI in Article V and which TMI
knew was untrue or inaccurate at the date of this Agreement.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TRIAD MEDICAL INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
Chief Executive Officer
PROFESSIONAL ACQUISITION, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., President
PROFESSIONAL EQUIPMENT CO., INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇, President
STOCKHOLDERS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
20
ADDENDUM 1
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Addendum which are defined in the
captioned Agreement to which this is an Addendum are used herein as therein
defined.
B. The Founding Companies are:
Custom Medical Specialties, Inc.
Healthcare Technology Delivery, Inc.
Kentec Medical, Inc.
MegaTech Medical, Inc.
New England Medical Specialties, Inc.
Omni Medical, Inc.
Professional Equipment Co., Inc.
Products for Surgery, Inc.
Sun Medical, Inc.
TRIAD Holdings, Inc.
▇▇▇▇▇▇ Medical Specialties, Inc.
SCHEDULE 2.03
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 2.03 are used
herein as therein defined.
B. The directors of the Surviving Corporation immediately after the
Effective Time are as follows:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇. ▇▇▇▇▇▇ Coop
▇▇▇▇▇ ▇. ▇▇▇▇
C. The officers of the Surviving Corporation immediately following the
Effective Time are as follows:
President: ▇. ▇▇▇▇▇▇ Coop
Vice President: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Vice President: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Secretary,
and Treasurer: ▇▇▇▇▇ ▇. ▇▇▇▇
SCHEDULE 2.04
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 2.04 are used
herein as therein defined.
B. The name and address of each Stockholder are as follows:
NAME ADDRESS
---- -------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE 3.01
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.01 are used
herein as therein defined.
B. Each Stockholder is an "accredited investor" as defined in Securities
Act Rule 501(a).
SCHEDULE 3.02
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.02 are used
herein as therein defined.
B. The following table sets forth the ownership of the Company's Capital
Stock:
NAME CLASS NUMBER OF SHARES OWNED
---- ----- ----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Common 500
▇▇▇▇▇ ▇. ▇▇▇▇ Common 500
C. No exception is taken to the representations and warranties made in
Section 3.02 of the captioned Agreement.
SCHEDULE 3.07
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.07 are used
herein as therein defined.
B. The Stockholder is, alone or with one or more other Persons, the
controlling Affiliate of the following Entity, business or trade (other than the
Company and the Company Subsidiaries, if the Stockholder is an Affiliate of the
Company) that is (a) engaged in any line of business which is the same as or
similar to any line of business in which the Company or any Company Subsidiary
is engaged or (b) is, or has within the three year period ending on the date of
the captioned Agreement, engaged in any transaction with the Company or any
Company Subsidiary except for (i) transactions in the ordinary course of
business of the Company or that Company Subsidiary and (ii) any single
transaction (or series of related transactions) involving property or services
having a value, or the payment of money, of less than $20,000:
1. The Stockholders own all of the outstanding capital stock of New
England Medical Specialties, Inc.
SCHEDULE 4.11
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 4.11 are used
herein as therein defined.
B. The following Related Party Agreement will be permitted to continue
in effect past the date of the Closing in accordance with its terms, subject to
the following provisions of this Schedule:
None
SCHEDULE 6.04
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
Triad Healthcare Corporation
Professional Acquisition, Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.04 are used
herein as therein defined.
B. The Company and the Company Subsidiaries may make the following
Restricted Payments prior to the Effective Time:
None
SCHEDULE 6.11
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.11 are used
herein as therein defined.
B. The Company will make all arrangements and take all such actions as
are necessary and satisfactory to TMI to dispose, prior to the Effective Time,
of the following assets:
1. The Company will sell to one of the Stockholders the 1996 Ford
Explorer owned by the Company, for a purchase price equal to its
fair market value at the date of sale, which may be payable in
cash or in a combination of cash and the assumption of the loan
balance on the vehicle.
2. The Company will sell to one of the Stockholders the 1997
Oldsmobile Bravada owned by the Company, for a purchase price
equal to its fair market value at the date of sale, which may be
payable in cash or in a combination of cash and the assumption
of the loan balance on the vehicle.
SCHEDULE 8.05
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 8.05 are used
herein as therein defined.
B. At or within 120 days following the Effective Time, TMI will cause
the following Stockholder Guarantees to be terminated:
1. All Stockholder Guarantees of the Closing Date Indebtedness
(including all such guarantees by a spouse of a Stockholder).
SCHEDULE 10.01
to the
Agreement and Plan of Reorganization
dated as of September 9, 1997
by and among
TRIAD Medical Inc.
Professional Acquisition Inc.
Professional Equipment Co., Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 10.01 are
used herein as therein defined.
B. The following Stockholders are Restricted Stockholders:
None