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EXHIBIT 2.53
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ASSET PURCHASE AGREEMENT
dated as of
September 1, 1998
by and among
AMERICAN PHYSICIAN PARTNERS, INC.
(a Delaware corporation),
ORMOND IMAGING PARTNERS, INC.
(a Delaware corporation),
DUKE ASSOCIATES LIMITED PARTNERSHIP
(a Virginia limited partnership),
and
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement"), dated as of September
1, 1998, is by and among AMERICAN PHYSICIAN PARTNERS, INC., a Delaware
corporation ("APPM"), ORMOND IMAGING PARTNERS, INC., a Delaware corporation and
a wholly-owned subsidiary of APPM ("Buyer"), DUKE ASSOCIATES LIMITED
PARTNERSHIP, a Virginia limited partnership ("Seller"), and ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. Perl, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (collectively, the "Partners").
RECITALS
A. Seller owns and operates a business that provides, among other
things, billing and management services for radiology groups (the "Business").
B. Buyer is a wholly-owned subsidiary of APPM. APPM is engaged in
the business of owning, operating and acquiring the assets of, and managing the
non-medical aspects of, radiology practices and diagnostic imaging centers.
C. Buyer desires (i) to purchase from Seller certain of the assets
and other rights related to the Business which Seller desires to sell to Buyer
(said assets and rights are defined in Section 2.1 as the "Purchased Assets"),
and (ii) to assume certain liabilities of Seller relating thereto as set forth
herein, on the terms and conditions specified in this Agreement.
The Partners acknowledge that they have received adequate consideration for
entering into this Agreement and performing their obligations under this
Agreement, and that they will be benefited by the transactions contemplated by
this Agreement. The Partners acknowledge that APPM and Buyer have relied on the
Partners' participation in this Agreement in connection with APPM's and Buyer's
entering into this Agreement and consummating the transactions provided for in
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the preceding recitals and the
mutual representations, warranties, covenants and agreements set forth herein,
the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Affiliate" with respect to any Person shall mean a Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"APPM" shall have the meaning set forth in the preamble to this
Agreement.
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"Best knowledge of Seller" and similar phrases shall mean the knowledge
of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ in his capacity as a General Partner of Seller, with the
obligation and duty to investigate and review the records and files pertaining
to Seller, but without further investigation.
"Best knowledge of Buyer" and similar phrases shall mean the knowledge
of ▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as senior vice president of Buyer, with the
obligation and duty to investigate and review the records and files pertaining
to Buyer, but without further investigation.
"Best knowledge of Partners" and similar phrases shall mean the
knowledge of each respective Partner, without further investigation.
"Buyer" shall have the meaning set forth in the preamble to this
Agreement.
"Claim Notice" shall have the meaning set forth in Section 14.3(a).
"Closing" shall mean the closing of the transactions contemplated by
this Agreement as set forth in Article IV.
"Closing Date" shall have the meaning set forth in Section 4.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confidential Information" shall mean all trade secrets and other
confidential and/or proprietary information of the particular Person, including,
but not limited to, information derived from reports, processes, data, know-how,
software programs, improvements, inventions, strategies, compensation
structures, reports, investigations, research, work in progress, codes,
marketing and sales programs and plans, financial projections, cost summaries,
formulae, contract analyses, financial information, forecasts, confidential
filings with any state or federal agency, and all other confidential concepts,
methods of doing business, ideas, materials or information prepared or performed
for, by or on behalf of such Person by its employees, officers, directors,
agents, representatives, or consultants.
"Controlled Group" shall have the meaning set forth in Section 5.19(g).
"Damages" shall have the meaning set forth in Section 14.1.
"Election Period" shall have the meaning set forth in Section 14.3(a).
"Employee Benefit Plans" shall have the meaning set forth in Section
5.19(a).
"Encumbrance" shall mean any charge, claim, community property
interest, condition, equitable interest, lien, option, pledge, security
interest, right of first refusal, or restriction of any kind, including any
restriction on use, voting, transfer, receipt of income or exercise of any other
attribute of ownership.
"Environmental Laws" shall have the meaning set forth in Section
5.22(e).
"ERISA" shall have the meaning set forth in Section 5.17.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Assets" shall have the meaning set forth in Section 2.2.
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"General Partner" shall have the meaning set forth in the preamble to
this Agreement.
"Indemnified Party" shall have the meaning set forth in Section
14.3(a).
"Indemnifying Party" shall have the meaning set forth in Section
14.3(a).
"Indemnity Notice" shall have the meaning set forth in Section 14.3(d).
"Insurance Policies" shall have the meaning set forth in Section 5.24.
"IRS" shall mean the Internal Revenue Service.
"Lease Assignments" shall have the meaning set forth in Section
11.1(f).
"Lease Agreements" shall have the meaning set forth in Section 5.20.
"Limited Partners" shall mean all of the limited partners of Seller.
"Material Adverse Effect" shall mean a material adverse effect on the
assets, properties, business, operations, condition (financial or otherwise),
liabilities or results of operations of the Person or Persons being referred to,
taken as a whole, in consideration of all relevant facts and circumstances.
"Medical Waste" shall mean (i) pathological waste, (ii) blood, (iii)
sharps, (iv) wastes from surgery or autopsy, (v) dialysis waste, including
contaminated disposable equipment and supplies, (vi) cultures and stocks of
infectious agents and associated biological agents, (vii) contaminated animals,
(viii) isolation wastes, (ix) contaminated equipment, (x) laboratory waste, (xi)
any substance, pollutant, material, or contaminant listed or regulated under any
Medical Waste Law, and (xii) other biological waste and discarded materials
contaminated with or exposed to blood, excretion, or secretions from human
beings or animals.
"Medical Waste Laws" shall mean the following, including regulations
promulgated and orders issued thereunder, as in effect of the date hereof and
the Closing Date: (i) the MWTA, (ii) the U.S. Public Vessel Medical Waste
Anti-Dumping Act of 1988, 33 USCA 2501 et seq., (iii) the Marine Protection,
Research, and Sanctuaries Act of 1972, 33 USCA 1401 et seq., (iv) The
Occupational Safety and Health Act, 29 USCA 651 et seq., (v) the United States
Department of Health and Human Services, National Institute for Occupational
Safety and Health, Infectious Waste Disposal Guidelines, Publication No. 88-119,
and (vi) any other federal, state, regional, county, municipal, or other local
laws, regulations, and ordinances insofar as they are applicable to any Seller's
assets or operations and purport to regulate Medical Waste or impose
requirements related to Medical Waste.
"MWTA" shall mean the Medical Waste Tracking Act of 1988, 42 U.S.C.
6992, et seq.
"Ordinary course of business" shall mean the usual and customary way in
which the particular entity has conducted its business in the past.
"Partners" shall mean the General Partner and the Limited Partners.
"Payors" shall mean any and all third-party payors including, but not
limited to, Medicare and Medicaid Programs (as defined in Section 5.28(a)),
insurance companies, health maintenance organizations, preferred provider
organizations, independent practice associations, hospitals, hospital systems,
integrated
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delivery systems, CHAMPUS, and any and all other private or governmental
entities rendering payment to Seller for professional medical or technical
services.
"Person" shall mean any natural person, corporation, partnership, joint
venture, limited liability company, association, group, organization or other
entity.
"Purchased Assets" shall have the meaning set forth in Section 2.1.
"Regulated Activity" shall have the meaning set forth in Section
5.22(e).
"Schedules" shall mean the schedules attached hereto as of the date
hereof or otherwise delivered by any party hereto pursuant to the terms hereof,
as such may be amended or supplemented from time to time pursuant to the
provisions hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall have the meaning set forth in the preamble to this
Agreement.
"Seller Annual Financial Statements" shall have the meaning set forth
in Section 5.10.
"Seller Current Balance Sheet" shall have the meaning set forth in
Section 5.10.
"Seller Current Financial Statements" shall have the meaning set forth
in Section 5.10.
"Seller Financial Statements" shall have the meaning set forth in
Section 5.10.
"Tax Returns" shall include all federal, state, local or foreign
income, excise, corporate, franchise, property, sales, use, payroll,
withholding, provider, environmental, duties, value added and other tax returns
(including information returns).
"Third Party Claim" shall have the meaning set forth in Section
14.3(a).
Section 1.2 Rules Of Interpretation. The definitions set forth in
Section 1.1 shall be equally applicable to both the singular and the plural
forms of the terms therein defined and shall cover both genders.
Unless otherwise indicated "herein," "hereby," "hereunder," "hereof,"
"hereinabove," "hereinafter" and other equivalent words refer to this Agreement
and not solely to the particular Article, Section or subdivision hereof in which
such word is used.
This Agreement occasionally omits the modifying words "all" and "any"
and the articles "the" and "an," but the fact that a modifier or an article is
absent from one statement and appears in another is not intended to affect the
interpretation of either statement.
Unless otherwise indicated, reference herein to an Article number
(e.g., Article IV) or a Section number (e.g., Section 6.2) shall be construed to
be a reference to the designated Article number or Section number of this
Agreement.
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ARTICLE II
PURCHASE AND SALE OF ASSETS
Section 2.1 Purchased Assets. Seller hereby sells, assigns,
transfers, conveys and delivers to Buyer, and Buyer hereby purchases, all right,
title and interest of Seller in and to the following assets, rights and
interests used in the operation of the Business, of every kind and description,
wherever located, whether tangible or intangible, excluding the Excluded Assets
(as such term is defined in Section 2.2 below), including, without limitation,
the following assets, rights and interests (collectively, the "Purchased
Assets"):
(a) Leasehold Improvements. All improvements, other
constructions, construction-in-progress and non-landlord owned fixtures
(collectively, the "Improvements") owned by Seller and located on the Real
Property (as defined in Section 2.2 hereof) including, without limitation, the
Improvements as listed in Schedule 2.1(a) hereto;
(b) Personal Property. All tangible personal property
(collectively, the "Personal Property") of every kind and nature (other than
items of tangible personal property that are consumed, disposed of, or held for
sale, or are inventoried in the ordinary course of business), including, without
limitation, all furniture, machinery, owned or licensed computer systems, and
equipment, including, without limitation, the Personal Property listed in
Schedule 2.1(b) hereto;
(c) Inventory. All inventories of supplies, drugs, food,
janitorial and office supplies, maintenance and shop supplies, and other
disposables which are existing as of the Closing Date (the "Inventory"). A list
of Inventory as of the date of this Agreement is attached as Schedule 2.1(c)
hereto;
(d) Intangible Assets. All intangible property
(collectively, the "Intangible Assets") of every kind and nature, including,
without limitation, the following:
(i) All patents, trademarks, trade names, business
names (including all names associated with specialty programs or
services operated by Seller), service marks, logos, trade secrets,
copyrights, and all applications and registrations therefor that are
owned by Seller, and licenses thereof pursuant to which Seller has any
right to the use or benefit of, or other rights with respect to, any of
the foregoing (collectively, the "Intellectual Property"), including,
without limitation, the items identified in Schedule 2.1(d)(i) hereto;
(ii) All telephone numbers;
(iii) All licenses, permits, certificates,
franchises, registrations, authorizations, filings, consents,
accreditations, approvals and other indicia of authority relating to
the operation of the Business as presently conducted by Seller
(collectively, the "Governmental Licenses and Permits"), which
Governmental Licenses and Permits are listed in Schedule 2.1(d)(iii)
hereto. In the event the sale, transfer, assignment, or conveyance of
any of the Governmental Licenses and Permits is unlawful or is not
permissible under any agreement, or federal, state, or local law, rule,
or regulation, then the terms "sale, transfer or assignment", for the
purposes of this Agreement with respect to any such Governmental
Licenses and Permits, shall be deemed to mean and require (1) Seller's
relinquishment of all of its right, title and interest in, to and under
such Governmental Licenses and Permits as of the Closing Date to the
fullest extent necessary or appropriate to enable Buyer to acquire such
Governmental Licenses and Permits, and (2) the issuance or grant to
Buyer by the appropriate third party or federal, state, or local
governmental authority of all right, title and interest in, to and
under such Governmental Licenses and Permits as of the Closing Date
reasonably
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equivalent to that relinquished by the Seller, including, but not
limited to, the right, authority, and approval for Buyer to provide
services at the Business from and after the Closing Date in a
reasonably equivalent manner as the Seller prior to the Closing Date;
(iv) All benefits, proceeds or any other amounts
payable under any policy of insurance maintained by Seller with respect
to destruction of, damage to, or loss of use of any of the Purchased
Assets including, without limitation, the items set forth in Schedule
2.1(d)(iv);
(v) All deposits or prepayments (the "Deposits")
held by Seller in connection with future services to be rendered by
Seller, delivered by Payors under any payor agreements including,
without limitation, the Deposits set forth in Schedule 2.1(d)(v);
(vi) Those advance payments, prepayments, prepaid
expenses, deposits and the like (the "Prepaids") which are existing as
of the Closing Date, and which were made by Seller solely with respect
to its operation of the Business (the "Purchased Prepaids") subject to
any applicable prorations as specified in this Agreement, the current
categories and amounts of which are set forth in Schedule 2.1(d)(vi)
hereto;
(vii) Seller's goodwill associated with the Purchased
Assets;
(viii) All interests in joint ventures, partnerships,
corporations and limited liability companies, other than any such
interests or any marketable and investment securities identified in
Schedule 2.2 as Excluded Assets (as defined in Section 2.2) (provided
that the failure of Seller to list publicly-traded securities in such
Schedule shall not cause same to be among the Purchased Assets),
including, without limitation, the interests identified in Schedule
2.1(d)(viii) hereto; and
(ix) To the extent assignable, all warranties,
guarantees and covenants not to compete with respect to the Business
including, without limitation, the arrangements identified in Schedule
2.1(d)(ix) hereto;
(e) Purchased Contracts. All right, title and interest of
Seller in, to and under the leases, contracts and agreements to which Seller is
a party or a beneficiary and which relate to or are necessary for the Business
(collectively, the "Purchased Contracts"). Schedule 2.1(e) hereto contains a
list of all leases, contracts and agreements to which Seller is a party or a
beneficiary, which relate to or are necessary for the Business and which either
(i) involve the payment or receipt by Seller of any form of services or
consideration in any 12-month period in excess of $10,000, or (ii) which will
extend beyond the Closing and that are not terminable or cancelable upon 60
days' notice;
(f) Books and Records. Seller shall make available to Buyer
and, at the Closing Date, Buyer shall take possession of, all of Seller's books,
records, papers, computer tapes, disks or data and instruments related to the
Business or the Purchased Assets or which are required or necessary in order for
Buyer to conduct the Business from and after the Closing Date including all
operating data and records pertaining to the assets, properties, business,
operations, accounts, financial condition, customers or suppliers of the
Business (collectively, "Books and Records"), including, without limitation, the
following:
(i) subject to any applicable federal and state
law, patient and medical records and all other medical and financial
information regarding patients of the Business;
(ii) patient lists;
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(iii) employment and personnel records relating to
retained employees;
(iv) personnel policies and manuals, electronic data
processing materials, books of account, accounting books, financial
records, sales records, sales and payroll tax returns, customer data,
journals and ledgers; and
(v) all material, documents, and information
relating to the Personal Property and the Lease Agreements, all
property use and operational material, contracts, correspondence, and
governmental material (i.e., licenses, permits, notices, and other
matters with respect to governmental authorities), information and
notices. Seller shall be entitled to retain copies of any of the Books
and Records and shall be responsible for all costs and expenses
relating to such copies, Buyer also agrees to make the Books and
Records available for inspection and copying by Seller, at Seller's
expense, after Closing, during normal business hours and upon
reasonable advance notice in connection with any audit, inquiry, or
litigation to which Seller may be made a party or in connection with
any tax or other governmental filing that Seller is required to make;
(g) Accounts Receivable. Accounts receivable arising on or
subsequent to the Closing Date; and
(h) Residual Assets. All other assets of Seller other than
the Excluded Assets (as such term is defined in Section 2.2 below).
Section 2.2 Excluded Assets. Notwithstanding Section 2.1(a), the
definition of "Purchased Assets" shall exclude all assets, rights and interests
identified on Schedule 2.2 hereto (collectively, the "Excluded Assets"). The
Excluded Assets shall not be transferred by Seller to Buyer. In connection with
the foregoing, Buyer and Seller each confirms and agrees that Seller presently
owns that real property known as and located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and Units 101, 102 and 105, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, which, together with all buildings and landlord improvements thereon
and appurtenances thereto, is hereafter referred to as the "Real Property." The
Real Property is used in connection with the Business. On the Closing Date,
Seller shall enter into a lease, in form and substance acceptable to Seller and
Buyer, for the rental of the real property to Buyer.
Section 2.3 Subsequent Actions. If, during a reasonable time
following the Closing Date, APPM or Buyer shall consider or be advised that any
bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in
Buyer its right, title or interest in, to or under any of the Purchased Assets
or otherwise to carry out the transactions described in this Agreement, Seller
shall, at the sole cost and expense of Buyer, execute and deliver all such bills
of sale, assignments and assurances and shall take and do all such other actions
and things as may be necessary or desirable to vest, perfect or confirm any and
all right, title and interest in, to and under the Purchased Assets or otherwise
to carry out the transactions described in this Agreement; provided, however,
that the same do not increase Seller's obligations or liabilities beyond those
created by this Agreement.
ARTICLE III
ASSUMED LIABILITIES
Section 3.1 Assumed Liabilities. As of the Closing, Buyer hereby
agrees to assume, satisfy or perform when due only those liabilities and
obligations of Seller relating to operation of the Business as set forth on
Schedule 3.1 hereto (the "Assumed Liabilities"). Other than the Assumed
Liabilities, Buyer shall
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not assume, nor shall APPM or Buyer or any of their respective affiliates or
subsidiaries be deemed to have assumed, guaranteed, agreed to perform or
otherwise be bound by, or be responsible or otherwise liable for, any liability
or obligation of any nature of Seller (whether or not related to the Business),
or claims for such liability or obligation, whether accrued, matured or
unmatured, liquidated or unliquidated, fixed or contingent, known or unknown
(the "Unassumed Liabilities"). Specifically, and without limiting the generality
of the foregoing, other than the Assumed Liabilities, neither APPM nor Buyer nor
any of their respective Affiliates or subsidiaries shall have any liability or
obligation with respect to or arising out of: (a) acts or omissions of Seller,
its partners, agents or employees whether prior to or subsequent to the Closing
Date, and whether or not in the ordinary course of business; (b) liabilities or
obligations relating to or secured by any portion of either the Purchased Assets
or the Business prior to the Closing; (c) employee related liabilities
(including accrued wages, vacation, employee-related insurance or deferred
compensation claimed by any person in connection with his or her employment by,
or termination of employment with, Seller, or payroll taxes payable or
liabilities arising under any Employee Benefit Plan maintained by Seller); (d)
liabilities or obligations of Seller, including those for attorneys' fees,
arising out of any litigation or other proceeding pending as of the Closing Date
in connection with the Business or any claim, whether or not asserted and
whether or not liquidated or contingent, with respect to the Business arising
from acts or the failure to take any action by Seller or any of its partners,
agents or employees prior to the Closing Date; (e) liabilities for any income or
other tax, whether disputed or not, attributable to Seller and/or the Business
for any period or transaction through the Closing; (f) except as set forth on
Schedule 3.1, trade payables which arise prior to the Closing; (g) claims by any
Payor or patient with respect to any matter or billing occurring prior to the
Closing and for which payment is received by Seller prior to the Closing; and
(h) any other liability or obligation of Seller. Buyer shall be responsible for
all refunds required by Payors in the event such refund relates to the accounts
receivable purchased by Buyer (but not to exceed the purchase price, determined
on a pro rata basis, that Buyer paid for the particular accounts receivable
required to be refunded); provided, however, that Seller shall remain
responsible for all other refunds which relate to revenue collected prior to
Closing. A list of all refunds and credits due as of the Closing Date shall be
set forth on Schedule 3.1 hereto and such refunds and credits shall be deemed
Unassumed Liabilities. All employment tax liabilities of Seller shall remain the
Seller's responsibility for collection, remittance and tax filing purposes for
the period through the Closing. Seller shall supply confirmation that all past
and current employment taxes through the Closing have been remitted to the
appropriate agencies in a timely manner.
ARTICLE IV
PURCHASE PRICE AND CLOSING
Section 4.1 Purchase Price.
(a) Aggregate Purchase Price. The aggregate purchase price
(the "Purchase Price") for the sale, transfer, assignment, conveyance and
delivery of the Purchased Assets from Seller to Buyer shall consist of all of
the consideration set forth on Exhibit A hereto (the "Consideration").
(b) Allocation of Purchase Price. The Purchase Price shall
be allocated by Buyer and Seller in accordance with Schedule 4.1(b) hereto.
Section 4.2 Closing and Effective Time. The closing of the
transactions contemplated under this Agreement (the "Closing") shall take place
at the offices of Sherman, Meehan, ▇▇▇▇▇▇ & Ain, on September 22, 1998,
effective as of September 1, 1998 or on such other date as the parties may
mutually agree in writing.
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The transfer of the Purchased Assets by Seller to Buyer and Buyer's
assumption of the Assumed Liabilities shall be deemed effective as of 12:01 a.m.
on September 1, 1998 (the "Effective Time"). The obligations and proceeds from
the operations of the Business shall be deemed to be the property of Buyer from
and after the Effective Time, and Buyer and Seller shall take any and all
actions reasonably necessary to carry out the intent of this Section 4.2.
Section 4.3 Closing Deliveries.
(a) Seller. At the Closing, Seller shall execute and
deliver to Buyer: (i) a ▇▇▇▇ of Sale substantially in the form attached as
Exhibit B hereto ("▇▇▇▇ of Sale"); (ii) the documents required to be delivered
pursuant to Section 11.1 hereof; and (iii) such other instruments as shall be
reasonably requested by Buyer to vest in Buyer title in and to the Purchased
Assets. Buyer shall have possession of the tangible Purchased Assets and the
Books and Records immediately upon Closing.
(b) Buyer. At the Closing, Buyer shall deliver to Seller:
(i) the cash portion of the Consideration in immediately available funds; (ii)
the shares of APPM common stock constituting a portion of the Consideration as
specified in Exhibit A; (iii) the documents required to be delivered pursuant to
Section 11.2 hereof; and (iv) such other instruments as shall be reasonably
requested by Seller to complete the assumption of the Assumed Liabilities by
Buyer.
Section 4.4 Certain Prorations.
(a) The items set forth on Schedule 4.4(a) shall be
prorated or adjusted between the parties hereto as of the Effective Time.
(b) At Closing, each party shall pay or credit to the other
party all sums required to effectuate the prorations and adjustments
contemplated by the provisions of this Section 4.4. If final figures have not
been calculated on any of the adjustments, prorations or reimbursements as of
the Closing, then the parties hereto shall close this transaction using
estimated adjustments, prorations and reimbursements which shall be subject to
later readjustment when such final figures have been calculated. The parties
hereto shall seek to determine the amounts of all prorations, adjustments and
reimbursements required hereunder on or before the Closing, if possible, and no
later than six (6) months following the Closing.
Section 4.5 Inventory. Seller shall cause an inventory to be taken
of the Inventory as near in time as possible to the Closing with the results
extended and adjusted through the Closing Date. Such inventory process shall be
subject to audit.
Section 4.6 Closing Expenses.
(a) Seller shall be responsible for the following expenses
(i) obtaining, filing and recording any and all releases, satisfactions, UCC
termination statements and similar documents required in order to cause title to
the Purchased Assets to be free, clear and unencumbered except for Permitted
Encumbrances (as defined in Section 5.3 hereof); and (ii) all sales, use,
transfer and other taxes, if any, required by or imposed as a result of the
transactions contemplated hereby.
(b) Each party shall be responsible for its own attorneys',
accountants' and other advisory fees associated with the closing of the
transactions contemplated by this Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE PARTNERS
As an inducement to APPM and to Buyer to enter into this Agreement and
except as set forth and referenced in the Schedules, Seller and the Partners
each represent and warrant, jointly and severally, to APPM and to Buyer as
follows:
Section 5.1 Organization and Good Standing; Qualification. Seller
is a limited partnership that has been duly organized and is validly existing
under the laws of the Commonwealth of Virginia, with all requisite power and
authority (i) to own, operate and lease its assets and properties, (ii) to carry
on its business as currently conducted and as now contemplated, (iii) to execute
and deliver this Agreement, and (iv) to consummate the transactions contemplated
by this Agreement. Seller is not qualified to do business in any foreign
jurisdiction because it is not required to be qualified in any other
jurisdiction.
Section 5.2 Authorization and Validity. Seller has all requisite
power to enter into this Agreement and all other agreements entered into in
connection with the transactions contemplated hereby, and to consummate the
transactions contemplated hereby. The execution, delivery, and performance by
Seller of this Agreement and the agreements contemplated herein, and the
consummation by Seller of the transactions contemplated hereby and thereby, are
within Seller's powers and have been duly authorized and approved by all
necessary action on the part of Seller's Partners. This Agreement has been duly
executed by Seller, and this Agreement and all other agreements and obligations
entered into and undertaken in connection with the transactions contemplated
hereby to which Seller is a party, constitute, or upon execution will
constitute, valid and binding agreements of Seller, enforceable against it in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy or other laws affecting the enforcement of creditors' rights
generally, or by general equity principles, or by public policy.
Section 5.3 Title to Purchased Assets.
(a) Schedule 5.3(a) hereto sets forth a true, correct and
complete list of all claims, liabilities, liens, pledges, options, charges,
adverse claims, leases, licenses, rights to use or occupancy, security
interests, restrictions and encumbrances of any kind affecting the Purchased
Assets (collectively, the "Encumbrances").
(b) Seller has good, clear, record and marketable title to,
or valid leasehold interests in, all of the Purchased Assets, free and clear of
all Encumbrances, except as set forth in Schedule 5.3(b) hereto (the "Permitted
Encumbrances"), and, subject to the Permitted Encumbrances, Seller has full
power and right to sell, assign and deliver the Purchased Assets in accordance
with the terms of this Agreement. The delivery to Buyer of the instruments of
transfer of ownership contemplated by this Agreement shall vest valid and
marketable title to the Purchased Assets in the Buyer, free and clear of all
Encumbrances, except for the Permitted Encumbrances. Except for Excluded Assets,
there are no material assets used in the Business which are not Purchased
Assets.
Section 5.4 Condition of Tangible Assets. Except as set forth on
Schedule 5.4 hereto, the tangible Personal Property and any other tangible
Purchased Assets are in reasonable operating condition and are sufficient for
the operation of the Business as presently conducted, and, to the best knowledge
of Seller and the Partners, are in conformity with all applicable laws,
ordinances, orders, regulations and other requirements (including, without
limitation, applicable occupational safety and health laws and regulations)
relating thereto currently in effect.
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Section 5.5 Consents and Approvals. Except as set forth on Schedule
5.5 hereto or addressed in Section 5.6, no consent, approval or authorization
of, notice to, or declaration, filing or registration with, any person or entity
is required to be made or obtained by Seller in connection with its execution,
delivery and performance of this Agreement and its consummation of the
transactions contemplated hereby.
Section 5.6 Governmental Authorization. Except as expressly set
forth in Schedule 5.6 hereto, and other than consents, filings or notifications
required to be made or obtained by Buyer or APPM, to the best knowledge of
Seller and the Partners, the execution, delivery and performance by Seller of
this Agreement and the agreements provided for herein, and the consummation of
the transactions contemplated hereby and thereby by Seller, require no action by
or in respect of, or filing with, any governmental body, agency, official or
authority.
Section 5.7 Continuity of Business Enterprise. Except as set forth
in Schedule 5.7 hereto, and except with respect to the Real Estate as referenced
in Section 2.2 hereof, there has not been any sale, distribution or spin-off of
significant assets of Seller other than in the ordinary course of business
within the two years preceding the date of this Agreement.
Section 5.8 Subsidiaries and Investments. Except as set forth in
Schedule 5.8 hereto, Seller does not own, directly or indirectly, any capital
stock or other equity, ownership or proprietary interest in any corporation,
partnership, association, trust, joint venture or other entity (each a "Seller
Subsidiary").
Section 5.9 Absence of Conflicting Agreements or Required Consents.
Subject to approval of this Agreement by the Partners of Seller, the execution,
delivery and performance by Seller of this Agreement and any other documents
contemplated hereby (with or without the giving of notice, the lapse of time, or
both): (i) except as set forth in Schedule 5.5, Schedule 5.6 or Schedule 5.9
hereto, do not require the consent of any governmental or regulatory body or
authority or any other third party, except for such consents for which the
failure to obtain would not reasonably be expected to result in a Material
Adverse Effect on the Business and the Purchased Assets; (ii) will not conflict
with or result in a violation of any provision of Seller's limited partnership
agreement; (iii) will not conflict with, result in a violation of, or constitute
a default under, any law, rule, ordinance, or regulation, or any ruling, decree,
determination, award, judgment, order or injunction of any court or governmental
instrumentality which is applicable to Seller or by which Seller or its
properties are subject or bound, except for such conflict, violation or default
the occurrence of which would not reasonably be expected to result in a Material
Adverse Effect on the Business and the Purchased Assets; (iv) except as set
forth in Schedule 5.9, will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, require any
notice under, or accelerate or modify, or permit any person to accelerate or
modify, any performance required by the terms of, any agreement, instrument,
license or permit material to this transaction, to which Seller is a party or by
which Seller or any of its properties are subject or bound, except for such
conflict, termination, breach, or default, the occurrence of which would not
reasonably be expected to result in a Material Adverse Effect on the Business
and the Purchased Assets; and (v) will not create any Encumbrance or restriction
upon any of the assets or properties of Seller.
Section 5.10 Seller Financial Statements. Attached hereto as
Schedule 5.10 are (i) the compiled statements of assets, liabilities, and
partners' capital, income tax basis, of the Company as of December 31, 1997, and
the related statements of revenues, expenses, partners' capital and cash flows,
income tax basis for the year ended December 31, 1997 (collectively, the "Seller
Annual Financial Statements") and (ii) the compiled consolidated statement of
assets, liabilities, partners' capital as of June 30, 1998 (the "Seller Current
Balance Sheet") and the related statements of income, and statements of cash
flows of Seller for the six (6) month period then ended (collectively, the
"Seller Current Financial Statements"). Seller Annual Financial Statements and
Seller Current Financial Statements are sometimes collectively referred to
herein
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as the "Seller Financial Statements." Seller Annual Financial Statements (a)
have been prepared in accordance with the cash method of accounting (except as
may be indicated therein or in the notes thereto), (b) present fairly the
financial position of Seller as of the dates indicated and present fairly the
results of Seller's operations for the periods then ended, and (c) are in
accordance with the books and records of Seller, which have been properly
maintained and are complete and correct in all material respects. Seller Current
Financial Statements present fairly the financial position of Seller as at the
dates thereof and the results of its operations and changes in financial
position for the periods then ended, subject to normal year-end adjustments (the
effect of which will not individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect on Seller) and lack of footnotes
thereto.
Section 5.11 No Undisclosed Liabilities. Except as listed in
Schedule 5.11 hereto, Seller does not have any liabilities or obligations of any
nature, whether known or unknown and whether accrued, absolute, contingent or
otherwise, asserted or unasserted except for liabilities or obligations
reflected or reserved against in Seller's Current Balance Sheet.
Section 5.12 Litigation and Claims. Except as listed in Schedule
5.12 hereto, there are no claims, lawsuits, actions, arbitrations,
administrative or other proceedings, governmental investigations or inquiries
pending or, to the best knowledge of Seller and the Partners, threatened,
against Seller that could adversely affect the operations, business condition
(financial or otherwise), or results of operations or the prospects of Seller
and which (i) if successful, individually or in the aggregate, reasonably would
be expected to have a Material Adverse Effect on Seller, or (ii) if successful,
reasonably would be expected to materially adversely affect the ability of
Seller to effect the transactions contemplated hereby. There are no unsatisfied
judgments against Seller or any consent decrees to which Seller is subject.
Except as set forth in Schedule 5.12, each of the matters, if any, set forth in
Schedule 5.12 (collectively, the "Litigation") is fully covered by policies of
insurance of Seller as in effect on the date hereof.
Section 5.13 No Violation of Law. Seller has not been, nor shall be
as of the Closing Date (by virtue of any action, omission to act, contract to
which it is a party, or any occurrence or state of facts whatsoever), in
violation of any applicable local, state or federal law, ordinance, regulation,
order, injunction or decree, or any other requirement of any governmental body,
agency, authority or court binding on it, or relating to its properties, assets
or business or its advertising, sales or pricing practices, except for
violations which reasonably, individually or in the aggregate, would not have a
Material Adverse Effect on Seller.
Section 5.14 Contracts and Commitments.
(a) Schedule 5.14 contains a true, accurate and complete
list, and Seller has delivered to Buyer true and complete copies, of each
contract, agreement and other instrument (other than insurance contracts
identified in Schedule 5.24 or Lease Agreements identified in Schedule 5.20), to
which Seller is a party or by which it or any of its properties or assets are
bound including, without limitation, (i) all agreements between Seller, on the
one hand, then in effect, and any Payor, government entity, provider, hospital,
health maintenance organization, other managed care organization or other
third-party provider, on the other hand, relating to the provision of medical,
diagnostic imaging or consulting services, treatments, patient referrals or
other similar activities, (ii) all indentures, mortgages, notes, loan or credit
agreements and other agreements and obligations relating to the borrowing of
money or to the direct or indirect guarantee or assumption of obligations of
third parties requiring Seller to make, or setting forth conditions under which
Seller would be required to make, future payments in excess of $10,000 in any
fiscal year or $25,000 in the aggregate, (iii) all agreements for capital
improvements or acquisitions involving an amount of $10,000 in any fiscal
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year or $25,000 in the aggregate, (iv) all agreements containing a covenant
limiting the freedom of Seller to compete in any line of business with any
person or entity or in any geographic area, or (v) all written contracts and
commitments providing for future payments by Seller in excess of $10,000 in any
fiscal year or $25,000 in the aggregate and that are not cancelable by providing
notice of sixty (60) days or less. Except as noted in Schedule 5.14, (1) no
party to any such contract, agreement, or other instrument has delivered written
notification to any other party challenging its effectiveness or validity; (2)
to the best knowledge of Seller and the Partners, there has been no threatened
cancellation thereof; (3) there are no outstanding disputes thereunder; (4) each
is with unrelated third parties and was entered into on an arms-length basis in
the ordinary course of business; and (5) assuming the receipt of the appropriate
consents, each constituting an Assumed Contract, will continue to be in full
force and effect and binding in accordance with their terms after consummation
of the transaction contemplated herein, except as enforceability may be limited
by bankruptcy or other laws affecting the enforcement of creditor's rights
generally, or by general equity principles, or by public policy. Except as noted
in Schedule 5.14, there are no contracts, agreements or other instruments to
which Seller is a party or is bound (other than physician employment contracts,
insurance policies and the lease agreements) which could, either singularly or
in the aggregate, be reasonably expected to have a Material Adverse Effect on
the value to Buyer of the Purchased Assets, or which could inhibit or prevent
Seller from transferring to or vesting in Buyer good and sufficient title to the
Purchased Assets. Notwithstanding the foregoing, Seller shall not transfer to
Buyer any contracts or agreements relating to the provision of professional
medical services or other such agreements and contracts that Buyer consents to
in writing to be retained by Seller. Except as set forth in Schedule 5.14, no
contract with a health care provider or Payor has been materially amended or
terminated within the last twelve (12) months.
(b) Except as disclosed in Schedule 5.14, (i) Seller has
not received written notice of any plan or intention of any other party to
exercise any right to cancel or terminate such contract, agreement or
instrument, and, to the best knowledge of Seller and the Partners, Seller is not
aware of any fact(s) that would justify the exercise of such a right; and (ii)
Seller does not currently contemplate, and, to the best knowledge of Seller and
the Partners, no other Person currently contemplates, any amendment or change to
any such contract, agreement or instrument.
Section 5.15 No Brokers. Seller has not entered into and will not
enter into any agreement, arrangement or understanding with any Person or firm
which will result in the obligation of Buyer to pay any finder's fee, brokerage
commission or similar payment.
Section 5.16 No Other Agreements to Sell the Assets of the Business.
Seller does not have any legal obligation, absolute or contingent, to any other
individual or entity to sell any of the Purchased Assets (other than agreements
for the sale of Inventory in the ordinary course), or to effect any sale of the
Business or to enter into any agreement with respect thereto.
Section 5.17 Employee Matters.
(a) Employment Contracts. Except as set forth in Schedule
5.17 and Schedule 5.19 hereto, Seller is not currently a party to any employment
contract (except for oral employment agreements which are terminable at will),
consulting or collective bargaining contracts, deferred compensation, pension
plan (as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended, and all rules and regulations from time to time promulgated
thereunder ("ERISA")), profit sharing, bonus, stock option, stock purchase or
other nonqualified benefit or compensation commitments, benefit plans,
arrangements or plans (whether written or oral), including all welfare plans (as
defined in Section 3(1) of ERISA) of or pertaining to Seller and any of its
present or former employees, or any predecessors in interest.
(b) Employees. As of August 15, 1998, Seller employed no
full-time employees. Schedule 5.17 lists each employee of, or consultant to,
Seller who received combined salary, benefits and bonuses for 1997 in excess of
$50,000 or who is expected to receive combined salary, benefits and bonuses in
1998 in excess of $50,000. Seller is not delinquent in payment to any of its
employees for wages, salaries,
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bonuses or other direct compensation for any services performed for it to the
date hereof or amounts required to be reimbursed to such employees.
(c) Severance Arrangements. Except as set forth on Schedule
5.17, upon termination of employment of any employee, no severance or other
payments will become due, and Seller has no policy, past practice, or plan of
paying severance on termination of employment.
Section 5.18 Labor Relations. Except to the extent set forth in
Schedule 5.18 hereto:
(a) To the best knowledge of Seller and the Partners, no
executive, key employee or group of employees has any plans to terminate
employment with Seller, except by reason of terminating such relationship by
becoming an employee of Buyer in connection with Buyer's purchase of the
Business pursuant hereto;
(b) There is no unfair labor practice, charge or complaint
or any other employment-related matter against or involving Seller pending, or,
to the best knowledge of Seller and the Partners, threatened, before the
National Labor Relations Board or any other federal, state or local agency,
authority or court;
(c) There are no charges, investigations, administrative
proceedings or formal complaints of discrimination (including discrimination
based upon sex, age, marital status, race, national origin, the making of
workers' compensation claims, sexual preference, handicap or veteran status)
pending, or, to the best knowledge of Seller and the Partners, threatened,
before the Equal Employment Opportunity Commission or any other federal, state
or local agency or court against Seller. There have been no governmental audits
of the equal employment opportunity practices of Seller, and, to the best
knowledge of Seller and the Partners, no basis for any such audit exists; and
(d) To the best knowledge of Seller and the Partners, there
are no inquiries, investigations or monitoring activities of any licensed,
registered, or certified professional personnel employed or retained by Seller
pending or threatened by any state professional board or agency charged with
regulating the professional activities of health care practitioners.
Section 5.19 Employee Benefit Plans.
(a) Identification. Schedule 5.19 hereto contains a
complete and accurate list and description of all employee benefit plans (within
the meaning of Section 3(3) of ERISA) sponsored by Seller or to which Seller
contributes on behalf of its employees and all employee benefit plans previously
sponsored or contributed to on behalf of its employees within the three years
preceding the date hereof (the "Employee Benefit Plans"). Seller has provided to
Buyer copies of all current plan documents (as they may have been amended to the
date hereof), determination letters, pending determination letter applications,
trust instruments, insurance contracts or policies related to an Employee
Benefit Plan, administrative services contracts, annual reports for the
immediately preceding three (3) years, actuarial valuations, summary plan
descriptions, summaries of material modifications, administrative forms and
other documents that constitute a part of or are incident to the administration
of the Employee Benefit Plans. Except as set forth in Schedule 5.19 and subject
to the requirements of ERISA, each of the Employee Benefit Plans can be
terminated or amended at will by Seller without any further liability or
obligation on the part of Seller to make further contributions or payments in
connection therewith following such termination except to the extent of any
benefits accrued through the date of termination which accrued benefits shall be
paid by Seller. Except as set forth in Schedule 5.19, no unwritten amendment
exists with respect to any Employee Benefit Plan.
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(b) Administration. Each Employee Benefit Plan has been
administered and maintained in compliance with all applicable laws, rules and
regulations, except where the failure to be in compliance would not,
individually or in the aggregate, result in a Material Adverse Effect.
(c) Examinations. Except as set forth in Schedule 5.19,
neither Seller nor any Partner has received any written notice that any Employee
Benefit Plan is currently the subject of an audit, investigation, enforcement
action or other similar proceeding conducted by any state or federal agency or
authority.
(d) Prohibited Transactions. No prohibited transactions
(within the meaning of Section 4975 of the Code or Section 406 of ERISA) have
occurred with respect to any Employee Benefit Plan. There has been no breach of
any duty under ERISA or applicable law (including, without limitation, any
health care contractor requirements or any other tax law requirements, or
conditions to favorable tax treatment, applicable to such plan), which would be
reasonably likely to result, directly or indirectly (including through any
obligation of indemnification or contribution), in any taxes, penalties or other
liability to APPM or any of its Affiliates.
(e) Claims and Litigation. Except as set forth in Schedule
5.19, no pending, or, to the best knowledge of Seller and the Partners,
threatened, claims, suits or other proceedings exist with respect to any
Employee Benefit Plan other than normal benefit claims filed by participants or
beneficiaries.
(f) Qualification. Except as set forth on Schedule 5.19,
Seller has received a favorable determination letter or ruling from the IRS for
each of the Employee Benefit Plans intended to be qualified within the meaning
of Section 401(a) or 501(c)(9) of the Code and/or tax-exempt within the meaning
of Section 501(a) of the Code, and, to the best knowledge of Seller and the
Partners, such Employee Benefit Plan has been continually qualified under the
applicable Section of the Code since the effective date of such Employee Benefit
Plan. No proceedings are pending, or, to the best knowledge of Seller and the
Partners, have been threatened, that could result in the revocation of any such
favorable determination letter or ruling.
(g) Funding Status. Except as set forth in Schedule 5.19,
no accumulated funding deficiency (within the meaning of Section 412 of the
Code), whether waived or unwaived, exists with respect to any Employee Benefit
Plan or any plan sponsored by any member of a controlled group (within the
meaning of Section 412(n)(6)(B) of the Code) in which Seller is a member (a
"Controlled Group"). Neither Seller nor any member of a Controlled Group
maintains or has ever maintained an Employee Benefit Plan subject to Title IV of
ERISA or an Employee Benefit Plan described in Section 501(c)(9) of the Code.
(h) Excise Taxes. Neither Seller nor any member of a
Controlled Group has any liability to pay excise taxes with respect to any
Employee Benefit Plan under applicable provisions of the Code or ERISA.
(i) Multi-employer Plans. Neither Seller nor any member of
a Controlled Group is or ever has been obligated to contribute to a
multi-employer plan within the meaning of Section 3(37) of ERISA or any other
Employee Benefit Plan which has been subject to Title IV of ERISA or Section 412
of the Code.
(j) PBGC. No facts or circumstances are known to Seller or
the Partners that would be reasonably likely to result in the imposition of
liability against APPM, Buyer or any of its Affiliates by the Pension Benefit
Guaranty Corporation ("PBGC") as a result of any act or omission by Seller or
any member of a Controlled Group. To the best knowledge of Seller and the
Partners, no reportable event (within the meaning of Section 4043 of ERISA), for
which the notice requirement has not been waived, has occurred with respect to
any Employee Benefit Plan subject to the requirements of Title IV of ERISA.
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(k) Retirees. Seller has no obligation or commitment to
provide medical, dental or life insurance benefits to or on behalf of any of its
employees who may retire or any of its former employees who have retired except
as may be required pursuant to the continuation of coverage provisions of
Section 4980B of the Code and the applicable provisions of ERISA.
(l) Other Compensation Arrangements. Except as set forth in
Schedule 5.19, Seller is not a party to any compensation or debt arrangement
with any person relating to the provision of health care related services other
than arrangements with Seller or to which Seller is a party.
Section 5.20 Lease Agreements. Schedule 5.20 hereto contains a true,
accurate and complete list of all the lease agreements and license agreements to
which Seller is a party and pursuant to which Seller leases (whether as lessor
or lessee) or licenses (whether as licensor or licensee) any real or personal
property related to the operation of its business and which requires payments in
excess of $10,000 per year (the "Lease Agreements"). Seller has delivered to
Buyer true and complete copies of all of the Lease Agreements. There is not
under any Lease Agreement (i) any existing or claimed material default by
Seller, or event which, with notice or lapse of time, or both, would constitute
a material default by Seller, which, individually or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect on Seller, or (ii)
to the best knowledge of Seller and the Partners, any existing material default
by any other party under any of the Lease Agreements or any event which, with
notice or lapse of time, or both, would constitute a material default by any
such party. There is no pending, or, to the best knowledge of Seller and the
Partners, threatened, reassessment of any property covered by the Lease
Agreements. Seller has a good, clear, valid and enforceable, except as
enforceability may be limited by bankruptcy or other laws affecting the
enforcement of creditors' rights generally, or by general equity principles, or
by public policy, leasehold interest under each of the Lease Agreements. The
Lease Agreements are in compliance with all applicable safe harbor provisions
promulgated by the Department of Health and Human Services in connection with
the enforcement of the federal Fraud and Abuse ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ Part 1001 and any
similar applicable state law safe harbor or other exemption provisions. Neither
Seller nor, to the best knowledge of Seller and the Partners, any other party
thereto, has challenged the validity or effectiveness of any Lease Agreement.
Section 5.21 Real and Personal Property.
(a) Except for the Real Property, Seller does not own any
interest in real property.
(b) Except as set forth in Schedule 5.3 hereto and except
for the Real Property excluded in accordance with Section 2.2 hereof, Seller (i)
has good and marketable title to all of its properties and assets (real,
personal and mixed, tangible and intangible) and any rights or interests therein
which it purports to own including, without limitation, all the property and
assets reflected in Seller Financial Statements; and (ii) owns such rights,
interests, assets and property free and clear of all Encumbrances, title defects
or objections (except for taxes not yet due and payable and the Permitted
Encumbrances). Seller Financial Statements reflect all personal property used in
connection with the operation of the Business subject to disposition in the
ordinary course of business and such personal property are the necessary assets
to continue operation of Seller.
Section 5.22 Environmental Matters.
(a) Seller has not, within the five (5) years preceding the
date hereof through the Effective Time, received from any federal, state or
local governmental body, agency, authority or entity, or any other Person, any
written notice, demand, citation, summons, complaint or order or any written
notice of any penalty, lien or assessment, and, to the best knowledge of Seller
and the Partners, no investigation or
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review is pending by any governmental entity, with respect to any (i) alleged
violation by Seller of any Environmental Law (as defined in subsection (e)
below); (ii) alleged failure by Seller to have any environmental permit,
certificate, license, approval, registration or authorization required pursuant
to any Environmental Law in connection with the conduct of its Business; or
(iii) alleged illegal Regulated Activity (as defined in subsection (e) below) by
Seller.
(b) Seller has not used, transported, disposed of, or
arranged for the disposal of (as those terms are defined in and construed under
the Comprehensive Environmental Response, Compensation and Liability Act), any
Hazardous Substance (as defined herein) in a manner that would be reasonably
likely to give rise to any Environmental Liabilities (as defined in subsection
(e) below) for Seller under any applicable Environmental Law that had, or would
reasonably be likely to have, a Material Adverse Effect on Seller. Seller has
not engaged in any activity, or failed to undertake any activity, which action
or failure to act has given, or would reasonably be likely to give, rise to any
Environmental Liabilities or enforcement action by any federal, state or local
regulatory agency or authority, or has resulted, or would reasonably be likely
to result, in any fine or penalty imposed pursuant to any Environmental Law that
had, or would reasonably be likely to have, a Material Adverse Effect on Seller.
Schedule 5.22 hereto discloses, to the best knowledge of Seller and the
Partners, any presence of asbestos in or on Seller's owned or leased premises.
(c) To the best knowledge of Seller and the Partners, no
soil or water in or under any assets currently or formerly held for use or sale
by Seller is or has been contaminated by any Hazardous Substance while such
assets or premises were owned, leased, operated or managed, directly or
indirectly, by Seller where such contamination had, or would be reasonably
likely to have, a Material Adverse Effect on Seller.
(d) Schedule 5.22 contains a list of all environmental
audits and other similar reports which have been prepared by, for, or, to the
best knowledge of Seller and the Partners, concerning, Seller, within the five
(5) years preceding the date hereof through the Effective Time, with respect to
any real property now or previously owned or leased by Seller, or any of its
predecessors, true and complete copies of which have been provided to Buyer.
(e) For the purposes of this Section 5.22, the following
terms have the following meanings:
"Environmental Laws" shall mean any and all domestic, federal,
state and local laws (including case law), regulations, ordinances,
rules, judgments, orders, decrees, codes, injunctions and permits
relating to the environment or to emissions, discharges or releases of
Hazardous Substances into the environment or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances or the clean-up
or other remediation thereof.
"Environmental Liabilities" shall mean all liabilities of
Seller, whether contingent or fixed, which (i) have arisen, or would
reasonably be likely to arise, under Environmental Laws and (ii) relate
to actions occurring or conditions existing on or prior to the date
hereof or the Effective Time.
"Hazardous Substances" shall mean any air pollution, toxic,
radioactive, caustic or otherwise hazardous substance regulated by any
Environmental Law, (including but not limited to (i) Medical Waste and
(ii) petroleum, its derivatives, by-products and other hydrocarbons),
and any material constituent elements thereof displaying any of the
foregoing characteristics.
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"Regulated Activity" shall mean any generation, treatment,
storage, recycling, transportation, disposal or release of any
Hazardous Substances.
Section 5.23 Filing Reports. All returns, reports, plans and filings
of any kind or nature necessary to be filed by Seller with any governmental
agency or authority have been properly completed and timely filed in compliance
with all applicable requirements, except where failure to so file would not have
a Material Adverse Effect on Seller.
Section 5.24 Insurance Policies. Schedule 5.24 hereto lists and
briefly describes Seller's policies of insurance to which Seller is a party or
under which Seller is or has been covered at any time during the last five (5)
years preceding the date of this Agreement relating to the Business of Seller
(the "Insurance Policies"). All premiums with respect to the Insurance Policies
are currently paid. All Insurance Policies currently maintained by Seller
("Current Policies"), taken together, (i) are sufficient for compliance with
legal and contractual requirements to which Seller is a party or by which Seller
may be bound, and (ii) shall be maintained in force (including the payment of
all premiums and compliance with their terms) without interruption up to and
including the Closing Date. True, complete and correct copies of all Current
Policies have been provided to Buyer. Except as set forth in Schedule 5.24,
Seller has not received any written notice or other written communication from
any issuer of any Current Policy canceling such policy, materially increasing
any deductibles or retained amounts thereunder, or materially increasing the
annual or other premiums payable thereunder, and, to the best knowledge of
Seller and the Partners, no such cancellation or increase of deductibles,
retainages or premiums is threatened. Except as set forth in Schedule 5.24,
there are no outstanding claims, settlements or premiums owed against any
Insurance Policy, and all required notices have been given, and all known
potential or actual claims under any Insurance Policy have been presented, in
due and timely fashion. Except as set forth in Schedule 5.24, since January 1,
1993, neither Seller nor any Affiliate thereof has filed a written application
for any professional liability insurance coverage which has been denied by an
insurance agency or carrier. Schedule 5.24 also sets forth a list of all claims
under any Insurance Policy in excess of $10,000 per occurrence filed by Seller
during the immediately preceding three-year period.
Section 5.25 Accounts Receivable; Payors.
(a) Attached hereto as Schedule 5.25(a) is a list and aging
of all accounts receivable of Seller as of August 31, 1998, which list is
complete, true and accurate in all material respects. All such accounts
receivable arose in the ordinary course of business and have not been previously
written off as bad debts, and, are, to the extent still uncollected, collectible
in the ordinary course of business, net of reserves for doubtful and
uncollectible accounts shown in Seller Financial Statements or on the accounting
records of Seller (which reserves are adequate and calculated consistent with
past practice). Nothing contained herein shall be deemed a guarantee of
collection with respect to the accounts receivable.
(b) Schedule 5.25(b) hereto sets forth a true, correct and
complete list of the names and addresses of each Payor including, but not
limited to, all private-pay patients as a single Payor, of Seller which
accounted for more than five percent (5%) of the revenues of Seller in the
fiscal year ended December 31, 1997, or which is reasonably expected to account
for more than five percent (5%) of the revenues of Seller for the fiscal year to
end December 31, 1998. Except as set forth in Schedule 5.25(b), Seller has
satisfactory relations with such Payors, and, to the best knowledge of Seller
and the Partners, none of such Payors has notified Seller that it intends to
discontinue its relationship with Seller or to deny any payments due from, or
any claims for payment submitted to, any such party.
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Section 5.26 Accounts Payable; Suppliers.
(a) Attached hereto as Schedule 5.26(a) is a true and
complete (i) list of the accounts payable of Seller as of August 31, 1998, and
(ii) list of each individual indebtedness of $10,000 or more, setting forth the
payee and the amount of indebtedness.
(b) Schedule 5.26(b) sets forth a true, correct and
complete list of the names and addresses of each of the providers/suppliers of
products or services to Seller which accounted for a dollar volume of purchases
paid for by Seller in excess of $10,000 for the fiscal year ended December 31,
1997, or which is reasonably expected to account for a dollar volume of
purchases paid for by Seller in excess of $10,000 for the fiscal year to end
December 31, 1998.
Section 5.27 Inventory. All items of inventory on Seller Current
Balance Sheet contained in Seller Financial Statements consisted, and all such
items on hand on the date of this Agreement consist, net of all applicable
reserves with respect thereto (calculated consistent with past practice), of
items of a quality and a quantity usable and saleable in the ordinary course of
Seller's Business and conform to generally accepted standards in the industry of
which Seller is a part. The amount of Seller's inventory is reasonably
consistent with Seller's inventory levels over the twelve (12) month period
immediately preceding the Effective Date. The value of the inventories reflected
on Seller Current Balance Sheet contained in Seller Financial Statements are net
of adequate reserves for damaged, excess, and unusable items. Purchase
commitments of Seller for inventory are not materially in excess of normal
requirements, and, to the best knowledge of Seller and the Partners, none of
such purchase commitments are at prices materially in excess of prevailing
market prices at the time of such purchase commitment.
Section 5.28 Licenses, Authorization and Provider Programs.
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(a) Except as listed in Schedule 5.28(a) hereto, Seller,
and, to the best knowledge of Seller and the Partners, each licensed employee or
independent contractor of Seller, (i) is the holder of all valid licenses,
approvals, orders, consents, permits, registrations, qualifications and other
rights and authorizations required by law, ordinance, regulation or ruling of
any governmental regulatory authority necessary to operate its/his/her business,
and (ii) is eligible to participate under Titles XVIII and XIX of the Social
Security Act for Maryland, Virginia and Washington, D.C. (the "Medicare and
Medicaid Programs") (Medicare and Medicaid Programs and such other similar
federal, state or local reimbursement or governmental programs for which Seller
is eligible are hereinafter referred to, collectively, as the "Governmental
Programs"), and (iii) has current provider numbers for such Governmental
Programs and with such private non-governmental programs (including without
limitation any private insurance program) under which Seller is presently
receiving payments directly or indirectly from any Payor for patient care (such
non-governmental programs herein referred to as "Private Programs"). A true,
correct and complete list of such licenses, permits and other authorizations,
and provider agreements, is set forth in Schedule 5.28(a), true, complete and
correct copies of which have been provided to APPM. No violation, default, order
or deficiency exists with respect to any of the items listed in Schedule 5.28(a)
except for such violations, defaults, orders or deficiencies which would not be
reasonably likely to have a Material Adverse Effect on Seller, and there is no
action pending, or, to the best knowledge of Seller and the Partners,
threatened, by any state or federal agencies having jurisdiction over the items
listed in Schedule 5.28(a), either to revoke, withdraw or suspend any material
license or to terminate the participation of Seller in any Governmental Program
or Private Program, and, to the best knowledge of Seller and the Partners, no
event has occurred which, with or without notice or lapse of time, or both,
would constitute grounds for a violation, order or deficiency with respect to
any of the items listed in Schedule 5.28(a) or to revoke, withdraw or suspend
any material license to operate its Business as is presently being conducted by
it. To the best knowledge of Seller and the Partners, there has been no decision
not to renew any existing agreement with any provider or Payor relating to
Seller's Business as presently being conducted by it. Except as set forth in
Schedule 5.28(a) or Schedule 5.12, neither Seller nor the Business (i) has had
his/her/its professional license, Drug Enforcement Agency number,
Medicare/Medicaid provider status or staff privileges at any hospital or
diagnostic imaging center suspended, relinquished, terminated or revoked, (ii)
has been reprimanded, sentenced, or disciplined by any licensing board, state
agency, regulatory body or authority, hospital, Payor or specialty board, or
(iii) has had a final judgment or settlement entered against him/her/its in
connection with a malpractice or similar action.
(b) Except as set forth in Schedule 5.28(b), Seller is not
required, and for the 72-month period prior to the Effective Time was not
required, to file any cost reports or other reports with any Governmental
Program or Private Program.
Section 5.29 Inspections and Investigations. Neither the right of
Seller, nor, to the best knowledge of Seller and the Partners, the right of any
licensed professional or other individual employed or retained by Seller, to
receive reimbursements pursuant to any Governmental Program or Private Program
has been terminated or otherwise materially and adversely affected as a result
of any investigation or action whether by any federal or state governmental
regulatory authority or other third party. Except as set forth and described in
Schedule 5.29 hereto, to the best knowledge of Seller and the Partners, no
licensed professional or other individual affiliated with the Business has,
during the past three (3) years prior to the Effective Time, had their
professional license suspended or revoked by any governmental regulatory
authority or agency, hospital, integrated delivery system, trade association,
professional review organization, accrediting organization or certifying agency.
True, correct and complete copies of all reports, correspondence, notices and
other documents relating to any matter described or referenced in Schedule 5.29
have been provided to Buyer.
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Section 5.30 Proprietary Rights and Information.
(a) Set forth in Schedule 5.30(a) hereto are a complete and
accurate list and summary description of the following: (i) all trademarks
(registered and unregistered), trade names, service marks and other trade
designations, including common law rights, registrations and applications
therefor, currently owned in whole or part, or used by Seller, (ii) all patents
and applications therefor, and inventions and discoveries that may be
patentable, currently owned, in whole or in part, or used by Seller, (iii) all
licenses, royalties, and assignments thereof to which Seller is a party, (iv)
all copyrights (for published and unpublished works) currently owned, in whole
or part, or used by Seller, and (v) other similar agreements relating to the
foregoing to which Seller is a party (including expiration date if applicable)
(collectively, the "Proprietary Rights").
(b) Schedule 5.30(b) contains a complete and accurate list
and summary description of all agreements relating to technology, trade secrets,
know-how or processes that Seller is licensed or authorized to use by others
(other than technology, know-how or processes generally available to other
health care providers) or which it licenses or authorizes others to use; true,
correct and complete copies of which have been provided to Buyer or APPM. There
are no outstanding, and, to the best knowledge of Seller and the Partners, no
threatened, disputes or disagreements with respect to any such agreement.
(c) Seller owns or has the legal right to use the
Proprietary Rights without conflicting with, infringing or violating the rights
of any other person. Except as disclosed in Schedule 5.30(c), no consent of any
Person will be required for the use thereof by Buyer or APPM upon consummation
of the transactions contemplated hereby and the Proprietary Rights are freely
transferable. To the best knowledge of Seller and the Partners, no claim has
been asserted by any person to the ownership of, or for infringement by Seller
of, any Proprietary Right of any other Person, and Seller is not aware of any
valid basis for any such claim. To the best knowledge of Seller and the
Partners, no proceedings have been threatened which challenge the Proprietary
Rights of Seller. Seller has the right to use, free and clear of any adverse
claims or rights of others, all trade secrets, customer lists and proprietary
information required for the performance and marketing of all merchandise and
services formerly or presently sold or marketed by Seller.
Section 5.31 Taxes.
(a) Filing of Tax Returns. Seller has duly and timely filed
(in accordance with any extensions duly granted by the appropriate governmental
agency, if applicable) with the appropriate governmental agencies all Tax
Returns required to be filed by the United States or any state or any political
subdivision thereof or any foreign jurisdiction. All such Tax Returns are
complete and accurate in all material respects and properly reflect the taxes of
Seller for the periods covered thereby.
(b) Payment of Taxes. Except for such items as Seller may
be disputing in good faith by proceedings in compliance with applicable law,
which are described in Schedule 5.31(b) hereto, (i) Seller has paid all taxes,
penalties, assessments and interest that have become due with respect to any Tax
Returns that it has filed ("Taxes"), and has properly accrued on its books and
records in accordance with the cash method of accounting for all of the same
that have not yet become due and payable, and (ii) Seller is not delinquent in
the payment of any tax, assessment or governmental charge.
(c) No Pending Deficiencies, Delinquencies, Assessments or
Audits. Except as set forth in Schedule 5.31(c) hereto, Seller has not received
any notice that any tax deficiency or delinquency has been asserted against
Seller, and, to the best knowledge of Seller and the Partners, there is no
threat of such assertion. There is no unpaid assessment, proposal for additional
taxes, deficiency, or delinquency in the payment of any of the taxes of Seller
that could reasonably be likely to be asserted by any taxing
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authority. There is no taxing authority audit of Seller pending, or to the best
knowledge of Seller and the Partners, threatened, and the results of any
completed audits are properly reflected in Seller Financial Statements. Seller
has not violated any applicable federal, state, local or foreign tax law. There
are no security interests or liens on any assets of Seller which have resulted
from any failure to pay (or alleged failure to pay) taxes.
(d) No Extension of Limitation Period. Seller has not
granted an extension to any taxing authority of the statute of limitation period
during which any tax liability may be assessed or collected.
(e) All Withholding Requirements Satisfied. All monies
required to be withheld by Seller and paid to governmental agencies for all
income, social security, unemployment insurance, sales, excise, use, and other
taxes have been collected or withheld and paid to the respective governmental
agencies.
(f) Foreign Person. Neither Seller nor any Partner is a
foreign person, as such term is referred to in Section 1445(f)(3) of the Code
and Treasury Regulations Section 1.1445-2.
(g) Safe Harbor Lease. None of the properties or assets of
Seller constitutes property that Seller, APPM, Buyer or any Affiliate of APPM,
will be required to treat as being owned by another person pursuant to the "Safe
Harbor Lease" provisions of Section 168(f)(8) of the Code prior to repeal by the
Tax Equity and Fiscal Responsibility Act of 1982.
(h) Tax Exempt Entity. None of the assets or properties of
Seller are subject to a lease to a "tax exempt entity" as such term is defined
in Section 168(h)(2) of the Code.
(i) Collapsible Corporation. Seller has not at any time
consented to have the provisions of Section 341(f)(2) of the Code apply to it.
(j) Boycotts. Seller has not at any time participated in or
cooperated with any international boycott as defined in Section 999 of the Code.
(k) Parachute Payments. No payment required or contemplated
to be made by Seller will be characterized as an "excess parachute payment"
within the meaning of Section 280G(b)(1) of the Code.
(l) S Corporation. Seller has not made an election to be
taxed as an "S" corporation under Section 1362(a) of the Code.
(m) Personal Holding Companies. Seller is not or has not
been a personal holding company within the meaning of Section 542 of the Code.
Section 5.32 Related Party Arrangements. Schedule 5.32 hereto sets
forth a description of any interest held, directly or indirectly, by any Partner
of Seller in any property, real or personal or mixed, tangible or intangible,
used in or pertaining to Seller's Business and any arrangement or agreement with
any such person concerning the provision of goods or services or other matters
pertaining to Seller's Business. There is no commitment to, and no income
reflected in Seller Financial Statements that has been derived from, an
Affiliate, and following the Closing, Seller shall not have any obligation of
any kind or designation to any such Affiliate.
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Section 5.33 Banking Relations. Set forth in Schedule 5.33 hereto is
a complete and accurate list of all borrowing and investing arrangements that
Seller has with any bank or other financial institution, indicating with respect
to each relationship, the type of arrangement maintained (such as checking
account, borrowing arrangements, safe deposit box, etc.) and the Person or
Persons authorized in respect thereof.
Section 5.34 Fraud and Abuse and Self Referral. Neither Seller nor
any of the Partners has engaged, and, to the best knowledge of Seller, no
Persons and entities providing professional services for or on behalf of Seller
have engaged, in any activities which are prohibited under 42 U.S.C. 1320a 7, 7a
or 7b, or 42 U.S.C. 1395nn, or (subject to the exceptions or safe harbor
provisions set forth in such legislation) the regulations promulgated thereunder
or pursuant to any similar state or local statutes or regulations, or which are
prohibited by applicable rules of professional conduct.
Section 5.35 Restrictions on Business Activities. Except as
disclosed in Schedule 5.14 or Schedule 5.35 hereto, there is no material
agreement, judgment, injunction, order or decree binding upon Seller or the
Partners, or, to the best knowledge of Seller and the Partners, key employee of
Seller, which has or reasonably could be expected to have a Material Adverse
Effect on the Business.
Section 5.36 Agreements in Full Force and Effect. Except as
expressly set forth in Seller's Schedules to this Agreement, to the best
knowledge of Seller and the Partners, all contracts, agreements, plans, leases,
policies and licenses referred to, or required to be referred to, in Seller's
Schedules delivered hereunder are valid and binding, and are in full force and
effect, and are enforceable in accordance with their terms, except to the extent
that the validity or enforceability thereof may be limited by bankruptcy or
other laws affecting the enforcement of creditors' rights generally, or by
general equity principles, or by public policy. To the best knowledge of Seller
and the Partners, there is no pending or threatened bankruptcy, insolvency or
similar proceeding with respect to any other party to such agreements, and no
event has occurred which (whether with or without notice, lapse of time or the
happening or occurrence of any other event) would constitute a material default
thereunder by Seller or any other party thereto.
Section 5.37 Statements True and Correct. No representation or
warranty made herein by Seller or any Partner, nor any statement, certificate,
exhibit or instrument to be furnished by Seller or any Partner, to APPM or Buyer
pursuant to this Agreement, contains, or will contain as of the Effective Time,
any untrue statement of material fact, or omits, or will omit as of the
Effective Time, to state a material fact necessary to make the statements
contained herein and therein not misleading.
Section 5.38 Schedules. All Schedules required by this Article V and
attached hereto are true, correct and complete in all material respects as of
the date of this Agreement.
Section 5.39 Finders' Fees. No investment banker, broker, finder or
other intermediary has been retained by, or is authorized to act on behalf of,
Seller or any Partner who is entitled to any fee or commission upon consummation
of the transactions contemplated by this Agreement or referred to herein.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER AND APPM
Buyer and APPM each represents and warrants to Seller as follows:
Section 6.1 Organization and Good Standing; Qualification. Each of
Buyer and APPM is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware, with all requisite corporate
power and authority to own, operate and lease its assets and properties and to
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carry on its business as currently conducted. Each of Buyer and APPM is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the character of the property owned or leased by it or
the nature of its activities makes such qualification necessary, except where
such failure to be so qualified or in good standing would not have a Material
Adverse Effect on Buyer or APPM. Copies of the certificate of incorporation and
all amendments thereto of Buyer and APPM and the bylaws of Buyer and APPM, as
amended, and copies of the corporate minutes of Buyer and APPM regarding this
transaction, all of which have been or will be made available to Seller for
review, are true, correct and complete as in effect on the date of this
Agreement, and accurately reflect all material proceedings of the stockholders
and directors of Buyer and APPM (and all committees thereof) regarding this
transaction.
Section 6.2 Authorization and Validity. Each of Buyer and APPM has
all requisite corporate power to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by Buyer and APPM of this Agreement and the agreements provided for
herein, and the consummation by Buyer and APPM of the transactions contemplated
hereby and thereby, are within Buyer's and APPM's respective corporate powers
and have been duly authorized by all necessary action on the part of Buyer's and
APPM's respective Board of Directors. This Agreement has been duly executed by
Buyer and APPM. This Agreement, and all other agreements and obligations entered
into and undertaken in connection with the transactions contemplated hereby and
thereby to which Buyer and APPM is a party, constitute, or upon execution will
constitute, valid and binding agreements of Buyer and APPM (as the case may be),
enforceable against it in accordance with their respective terms, except as may
be limited by bankruptcy or other laws affecting creditors' rights generally, or
by general equity principles, or by public policy.
Section 6.3 Consents and Approvals. No consent, approval or
authorization of, notice to, or declaration, filing or registration with, any
governmental entity or any other person or entity is required to be made or
obtained by Buyer or APPM in connection with its respective execution, delivery
and performance of this Agreement and its consummation of the transactions
contemplated hereby.
Section 6.4 Governmental Authorization. Other than consents,
filings or notifications required to be made or obtained by Seller, to the best
knowledge of APPM and Buyer, the execution, delivery and performance by Buyer
and APPM of this Agreement and the agreements provided for herein, and the
consummation of the transactions contemplated hereby and thereby by Buyer and
APPM, require no action by or in respect of, or filing with, any governmental
body, agency, official or authority.
Section 6.5 Absence of Conflicting Agreements or Required Consents.
The execution, delivery and performance of this Agreement by Buyer and/or APPM
and any other documents contemplated hereby (with or without the giving of
notice, the lapse of time, or both): (i) do not require the consent of any
governmental or regulatory body or authority or any other third party except for
such consents for which the failure to obtain would not reasonably be expected
to result in a Material Adverse Effect on Buyer or APPM; (ii) will not conflict
with any provision of Buyer's or APPM's respective certificate of incorporation
or bylaws; (iii) to the best knowledge of APPM and Buyer, will not conflict
with, result in a violation of, or constitute a default under, any law,
ordinance, regulation, ruling, judgment, order or injunction of any court or
governmental instrumentality to which Buyer or APPM is a party or by which Buyer
or APPM or their or its properties are subject or bound; (iv) will not conflict
with, constitute grounds for termination of, result in a breach of, constitute a
default under, require any notice under, or accelerate or permit the
acceleration of any performance required by the terms of, any agreement,
instrument, license or permit material to this transaction, to which Buyer or
APPM is a party or by which Buyer or APPM or any of their or its respective
properties are subject or bound except for such conflict, termination, breach or
default, the occurrence of which would not reasonably be expected to result in a
Material Adverse Effect on Buyer or APPM; and (v) will not create any
Encumbrance or restriction upon any of the assets or properties of Buyer or
APPM.
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Section 6.6 Statements True and Correct. No representation or
warranty made herein by Buyer or APPM, nor any statement, certificate or
instrument to be furnished by Buyer or APPM to Seller pursuant to this
Agreement, contains, or will contain as of the Effective Time, any untrue
statement of material fact, or omits, or will omit as of the Effective Time, to
state a material fact necessary to make the statements contained herein and
therein not misleading.
Section 6.7 Schedules. All Schedules required by this Article VI
and attached hereto are true, correct and complete in all material respects as
of the date of this Agreement.
Section 6.8 Finder's Fees. No investment banker, broker, finder or
other intermediary has been retained by, or is authorized to act on behalf of,
Buyer or APPM, who is entitled to any fee or commission upon consummation of the
transactions contemplated by this Agreement or referred to herein.
Section 6.9 Litigation and Claims. There are no claims, lawsuits,
actions, arbitrations, administrative or other proceedings, governmental
investigations or inquiries pending, or, to the best knowledge of Buyer and APPM
threatened, against Buyer or APPM which could materially adversely affect the
ability of Buyer or APPM to effect the transactions contemplated hereby.
Section 6.10 APPM Common Stock. The APPM Common Stock issued to
Seller (or its Partners) pursuant hereto, has been validly issued by APPM, is
fully paid and non-assessable, and to APPM's best knowledge, based on
representations made by Seller and/or its Partners to APPM, is exempt from
registration under federal securities laws.
ARTICLE VII
POST-CLOSING COVENANTS OF SELLER
Section 7.1 Lock-up Agreements from Partners. Prior to distributing
the APPM Stock (as defined on Exhibit A) to the Partners, Seller shall cause
each Partner to execute and deliver to APPM a lock-up agreement in the form
attached hereto as Exhibit C.
ARTICLE VIII
PRE-CLOSING COVENANTS OF APPM AND BUYER
[Intentionally Omitted]
ARTICLE IX
CONDITIONS PRECEDENT OF APPM AND BUYER
[Intentionally Omitted]
ARTICLE X
[Intentionally Omitted]
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ARTICLE XI
CLOSING DELIVERIES
Section 11.1 Deliveries of Seller. Seller hereby delivers to Buyer
the following:
(a) a copy of resolutions of Seller authorizing the
execution, delivery and performance of this Agreement and all related documents
and agreements, and the consummation of the transactions contemplated hereby;
(b) [intentionally omitted];
(c) [intentionally omitted];
(d) a certificate, dated within thirty (30) days prior to
the Closing Date, of the Virginia Commonwealth Department of Assessments and
Taxation for Seller establishing that Seller is in existence, has paid all
franchise or similar taxes, if any, and, if applicable, otherwise is in good
standing to transact business in the Commonwealth of Virginia;
(e) all authorizations, consents, approvals, permits and
licenses referenced in Section 5.28;
(f) an assignment to Buyer of (i) each lease for personal
property described on Schedule 5.20 (the "Lease Assignments"), (ii) all
contracts described on Schedule 5.14 which can be assigned to Buyer ("Non-Payor
Contract Assignments"), and (iii) all contracts described in Schedule 5.14 which
cannot be assigned to Buyer ("Payor Contract Assignments"); and
(g) [intentionally omitted].
Section 11.2 Deliveries of Buyer and APPM. At or prior to the
Closing Date, each of Buyer and APPM shall deliver to Seller the following, all
of which shall be in a form reasonably satisfactory to Seller:
(a) a copy of resolutions of the Board of Directors of APPM
or Buyer, as applicable, authorizing the execution, delivery and performance of
this Agreement, and all related documents and agreements, certified by APPM's or
Buyer's Secretary as being true and correct copies of the originals thereof
subject to no modifications or amendments;
(b) the Consideration in accordance with Exhibit A hereto;
(c) [intentionally omitted];
(d) [intentionally omitted];
(e) a certificate of the Secretary of APPM or Buyer, as may
be applicable, certifying as to the incumbency of the officers of Buyer and APPM
who have executed documents delivered at the Closing on behalf of Buyer;
(f) a certificate, dated within ten (10) days prior to the
Closing Date, of the Secretary of State of Delaware establishing that Buyer and
APPM each is in existence, has paid all franchise or similar taxes, if any, and,
if applicable, otherwise is in good standing to transact business in the state
of Delaware;
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(g) certificates (or photocopies thereof), dated within ten
(10) days prior to the Closing Date, of the Commonwealth of Virginia Department
of Assessment and Taxation, to the effect that Buyer is qualified to do
business, and, if applicable, is in good standing as a foreign corporation in
such state; and
(h) the executed Lease Assignments, Non-Payor Contract
Assignments and Payor Contract Assignments.
ARTICLE XII
CERTAIN ADDITIONAL AGREEMENTS OF THE PARTIES
[Intentionally Omitted]
ARTICLE XIII
POST CLOSING MATTERS
Section 13.1 Further Instruments of Transfer. During a reasonable
period following the Closing, at the request of APPM, Seller and the Partners
shall deliver any further instruments of transfer and take all reasonable action
as may be necessary or appropriate to carry out the purpose and intent of this
Agreement and the Transactions. During a reasonable period following the
Closing, at the request of Seller, APPM and Ormond shall deliver any further
instruments of transfer and take all reasonable action as may be necessary or
appropriate to carry out the purpose and intent of this Agreement and the
Transactions.
Section 13.2 Survival of Article XIV. Notwithstanding any other
provision of this Agreement to the contrary, Article XIV of this Agreement shall
survive the Closing.
ARTICLE XIV
REMEDIES
Section 14.1 Indemnification by Seller and the Partners. Subject to
the terms and conditions of this Article XIV, Seller and the General Partners
shall indemnify, defend and hold APPM and Buyer and their respective directors,
officers, members, managers, employees, agents, attorneys and Affiliates
harmless from and against all losses, claims, obligations, demands, assessments,
penalties, liabilities, costs, damages, reasonable attorneys' fees and expenses
(collectively, "Damages") asserted against or incurred by such indemnitees
arising out of or resulting from:
(a) a breach of any representation or warranty or covenant
of Seller contained herein or in any Schedule or certificate delivered
hereunder;
(b) any violation (or alleged violation) by Seller and/or
any of its past or present, partners, managers, employees, agents, consultants
and Affiliates of state or federal laws governing health care fraud and abuse
(including, but not limited to, fraud and abuse in the Medicare and Medicaid
Programs) occurring on or before the Closing Date, or any overpayment or
obligation (or alleged overpayment or obligation) arising out of or resulting
from claims submitted to any Payor on or before the Closing Date and for which
Seller or the Partners received payment on or before the Effective Date
("Healthcare Fraud"); and
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(c) the ownership, possession, use, sale, licensing or
leasing of the Purchased Assets by Seller at or before the Effective Time or the
non-payment (including untimely payment) or non-performance of the Unassumed
Liabilities by Seller.
Section 14.2 Indemnification by APPM and Buyer. Subject to the terms
and conditions of this Article XIV, APPM and Buyer, jointly and severally, shall
indemnify, defend and hold Seller and its partners, managers, employees, agents,
attorneys and Affiliates harmless from and against all Damages asserted against
or incurred by such indemnitees arising out of or resulting from:
(a) a breach by APPM or Buyer of any representation or
warranty or covenant of APPM or Buyer contained herein or in any Schedule or
certificate delivered hereunder; and
(b) all Assumed Liabilities.
Section 14.3 Conditions of Indemnification. All claims for
indemnification under this Agreement shall be asserted and resolved as follows:
(a) A party claiming indemnification under this Agreement
(an "Indemnified Party") shall promptly (and, in any event, at least ten (10)
days prior to the due date for any responsive pleadings, filings or other
documents) (i) notify the party from whom indemnification is sought (the
"Indemnifying Party") of any third-party claim or claims asserted against the
Indemnified Party ("Third Party Claim") that could give rise to a right of
indemnification under this Agreement, and (ii) transmit to the Indemnifying
Party a written notice ("Claim Notice") describing in reasonable detail the
nature of the Third Party Claim, a copy of all papers served with respect to
such claim (if any), an estimate of the amount of Damages attributable to the
Third Party Claim, and the basis of the Indemnified Party's request for
indemnification under this Agreement. Except as set forth in Section 14.6, the
failure to promptly deliver a Claim Notice shall not relieve the Indemnifying
Party of its obligations to the Indemnified Party with respect to the related
Third Party Claim except to the extent that the resulting delay is materially
prejudicial to the defense of such claim. Any damages ultimately awarded shall
be reduced by the costs incurred as a result of such delay.
Within thirty (30) days after receipt of any Claim Notice (the
"Election Period"), the Indemnifying Party shall notify the Indemnified Party
(i) whether the Indemnifying Party disputes its potential liability to the
Indemnified Party under this Article XIV with respect to such Third Party Claim,
and (ii) whether the Indemnifying Party desires, at the sole cost and expense of
the Indemnifying Party, to defend the Indemnified Party against such Third Party
Claim.
(b) If the Indemnifying Party notifies the Indemnified
Party within the Election Period that the Indemnifying Party elects to assume
the defense of the Third Party Claim, then the Indemnifying Party shall have the
right to defend, at its sole cost and expense, such Third Party Claim by all
appropriate proceedings, which proceedings shall be prosecuted diligently by the
Indemnifying Party to a final conclusion or settled at the discretion of the
Indemnifying Party in accordance with this Section 14.3(b). The Indemnifying
Party shall have full control of such defense and proceedings, including any
compromise or settlement thereof. The Indemnified Party is hereby authorized, at
the sole cost and expense of the Indemnifying Party (but only if the Indemnified
Party is entitled to indemnification hereunder), to file, during the Election
Period, any motion, answer or other pleadings that the Indemnified Party
reasonably shall deem necessary or appropriate to protect its interests or those
of the Indemnifying Party and not prejudicial to the Indemnifying Party (it
being understood and agreed that if an Indemnified Party takes any such action
that is prejudicial and causes a final adjudication that is adverse to the
Indemnifying Party, the Indemnifying Party shall be relieved of its obligations
hereunder with respect to such Third Party Claim). If requested by the
Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense
of the Indemnifying Party, to cooperate with the Indemnifying Party and its
counsel in contesting any Third Party Claim that the
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Indemnifying Party elects to contest, including, without limitation, the making
of any related counterclaim against the person asserting the Third Party Claim
or any cross-complaint against any person. The Indemnified Party may participate
in, but not control, any defense or settlement of any Third Party Claim
controlled by the Indemnifying Party pursuant to this Section 14.3(b) and shall
bear its own costs and expenses with respect to such participation; provided,
however, that if the named parties to any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party, and the
Indemnified Party has been advised by counsel that there may be one or more
legal defenses available to it that are different from or additional to those
available to the Indemnifying Party, then the Indemnified Party may employ
separate counsel at the expense of the Indemnifying Party, and upon written
notification thereof, the Indemnifying Party shall not have the right to assume
the defense of such action on behalf of the Indemnified Party; provided further
that the Indemnifying Party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for the Indemnified Party, which firm shall be designated in writing by the
Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall
be prohibited from confessing or settling any criminal allegations brought
against the Indemnified Party without the express written consent of the
Indemnified Party.
(c) If the Indemnifying Party fails to notify the
Indemnified Party within the Election Period that the Indemnifying Party elects
to defend the Indemnified Party pursuant to Section 14.3(b), or if the
Indemnifying Party elects to defend the Indemnified Party pursuant to Section
14.3(b) but fails diligently and promptly to prosecute or settle the Third Party
Claim, then the Indemnified Party shall have the right to defend, at the sole
cost and expense of the Indemnifying Party (if the Indemnified Party is entitled
to indemnification hereunder), the Third Party Claim by all appropriate
proceedings, which proceedings shall be promptly and vigorously prosecuted by
the Indemnified Party to a final conclusion or settled. The Indemnified Party
shall have full control of such defense and proceedings, provided, however, that
the Indemnified Party may not enter into, without the Indemnifying Party's
consent, which shall not be unreasonably withheld, any compromise or settlement
of such Third Party Claim. Notwithstanding the foregoing, if the Indemnifying
Party has delivered a written notice to the Indemnified Party to the effect that
the Indemnifying Party disputes its potential liability to the Indemnified Party
under this Article XIV and if such dispute is resolved in favor of the
Indemnifying Party, the Indemnifying Party shall not be required to bear the
costs and expenses of the Indemnified Party's defense pursuant to this Section
or of the Indemnifying Party's participation therein at the Indemnified Party's
request, and the Indemnified Party shall reimburse the Indemnifying Party in
full for all costs and expenses of such litigation. The Indemnifying Party may
participate in, but not control, any defense or settlement controlled by the
Indemnified Party pursuant to this Section 14.3(c), and the Indemnifying Party
shall bear its own costs and expenses with respect to such participation;
provided, however, that if the named parties to any such action (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party, and the Indemnifying Party has been advised by counsel that there may be
one or more legal defenses available to it that are different from or additional
to those available to the Indemnified Party, then the Indemnifying Party may
employ separate counsel and, upon written notification thereof, the Indemnified
Party shall not have the right to assume the defense of such action on behalf of
the Indemnifying Party.
(d) In the event any Indemnified Party should have a claim
against any Indemnifying Party hereunder that does not involve a Third Party
Claim, the Indemnified Party shall transmit to the Indemnifying Party a written
notice (the "Indemnity Notice") describing in reasonable detail the nature of
the claim, an estimate of the amount of damages attributable to such claim, and
the basis of the Indemnified Party's request for indemnification under this
Agreement. If the Indemnifying Party does not notify the Indemnified Party
within sixty (60) days from its receipt of the Indemnity Notice that the
Indemnifying Party disputes such claim, the claim specified by the Indemnified
Party in the Indemnity Notice shall be deemed
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a liability of the Indemnifying Party hereunder. If the Indemnifying Party has
timely disputed such claim, as provided above, such dispute shall be resolved by
litigation in an appropriate court of competent jurisdiction if the parties do
not reach a settlement of such dispute within thirty (30) days after notice of a
dispute is given.
(e) Payments of all amounts owing by an Indemnifying Party
pursuant to this Article XIV relating to a Third Party Claim shall be made
within thirty (30) days after the latest of (i) the settlement of such Third
Party Claim, (ii) the expiration of the period for appeal of a final
adjudication of such Third Party Claim, or (iii) the expiration of the period
for appeal of a final adjudication of the Indemnifying Party's liability to the
Indemnified Party under this Agreement. Payments of all amounts owing by an
Indemnifying Party pursuant to Section 14.3(d) shall be made within 30 days
after the later of (i) the expiration of the 60-day Indemnity Notice period or
(ii) the expiration of the period for appeal of a final adjudication of the
Indemnifying Party's liability to the Indemnified Party under this Agreement.
(f) The Indemnifying Party shall provide the Indemnified
Party with written notice of any firm offer that is made to settle or compromise
a Third Party Claim against an Indemnified Party. If a firm offer is made to
settle such a claim solely by the payment of money damages and such offer is
contingent only upon the acceptance by the Indemnifying Party, and the
Indemnifying Party notifies the Indemnified Party in writing that the
Indemnifying Party agrees to such settlement, but the Indemnified Party elects
not to accept and agree to it, the Indemnified Party may continue to contest or
defend such Third Party Claim and, in such event, the total maximum liability of
the Indemnifying Party to indemnify or otherwise reimburse the Indemnified Party
hereunder with respect to such a claim shall be limited to and shall not exceed
the amount of such settlement offer, plus reasonable out-of-pocket costs and
reasonable expenses (including reasonable attorneys' fees and disbursements) to
the date of notice that the Indemnifying Party desired to accept such
settlement.
(g) Notwithstanding any provision herein to the contrary,
the obligation of APPM or Buyer on the one hand, or Seller, on the other hand,
to provide indemnification for breach of any representation or warranty or
covenants as provided in Section 14.1(a) or 14.2(a) hereof, shall not take
effect unless and until the Damages asserted against or incurred in the
aggregate and on a collective basis by APPM or Buyer, on the one hand, or
Seller, on the other hand, as a result of such a breach or breaches exceeds
$15,000 (but expressly excluding any such claims involving fraud, intentional
misrepresentation, title to the Purchased Assets, Taxes, Litigation or
Healthcare Fraud).
Section 14.4 Remedies Exclusive. The remedies provided in this
Agreement shall be exclusive of any other rights or remedies available to one
party against the other, either at law or in equity, except that this section
shall not limit any party's right to equitable relief, to the extent and as
appropriate, with respect to fraud, intentional misrepresentations, title to the
Purchased Assets, Taxes, Litigation or Healthcare Fraud.
Section 14.5 Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party hereto shall bear
its own costs and expenses (including attorneys' fees), except that each party
hereto agrees to pay the costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the other parties in successfully (a) enforcing
any of the terms of this Agreement or (b) proving that another party breached
any of the terms of this Agreement.
Section 14.6 Tax Benefits; Insurance Proceeds. The total amount of
any indemnity payments owed by one party to another party to this Agreement
shall be reduced by any correlative tax benefit received by the party to be
indemnified or the net proceeds received by the party to be indemnified with
respect to recovery from third parties or insurance proceeds, and such
correlative insurance benefit shall be net of the insurance premium, if any,
that becomes due as a result of such claim.
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Section 14.7 Survival.
(a) All of the respective obligations of the parties
contained in this Agreement or in any other document delivered in accordance
with and pursuant to this Agreement, including without limitation all covenants,
agreements, indemnities, representations (other than with respect to the due
authority of a party), and warranties (other than with respect to the due
authority of a party), shall survive Closing for a period of twenty-four (24)
months; provided, however, that the limitation of this clause (a) shall not
apply to claims involving fraud, intentional misrepresentations, title to the
Purchased Assets, Taxes, Litigation or Healthcare Fraud, for which the period
for making such claims shall expire on the date which is six (6) months after
the termination of the applicable statute of limitations relating thereto.
(b) If, within such twenty-four (24) month period (or
longer period, if applicable), no written notice is given by one party to the
other party of any alleged breach of a covenant, agreement, indemnification,
representation, or warranty of the other party under this Agreement, then all
liability of the other party, except as otherwise provided in this Agreement,
shall terminate. If written notice of any alleged breach of a covenant,
agreement, indemnification, warranty, or obligation is given to the other party
within such twenty-four (24) month period (or longer period, if applicable),
then the liability of the other party shall survive as to the matter(s) in
question in such notice, and the liability of the other party as to all other
matters shall cease.
Section 14.8 Breach by Partner. The parties agree that,
notwithstanding any other provision of this Agreement to the contrary, if and in
the event a right of indemnification under this Agreement arises in favor of
APPM as a result of a breach by a specific Partner of a representation,
warranty, or covenant particular to that Partner, then APPM shall first seek to
enforce its rights of indemnification against, and indemnification from, the
Partner who is in breach, and second, seek to enforce its rights of
indemnification against, and indemnification from, the other Partners.
ARTICLE XV
TERMINATION
[Intentionally Omitted]
ARTICLE XVI
NONDISCLOSURE OF CONFIDENTIAL INFORMATION
[Intentionally Omitted]
ARTICLE XVII
MISCELLANEOUS
Section 17.1 Amendment; Waivers. This Agreement may be amended,
modified or supplemented only by an instrument in writing executed by all the
parties hereto. Any waiver of any terms and conditions hereof must be in
writing, and signed by the parties hereto. The waiver of any of the terms and
conditions of this Agreement shall not be construed as a waiver of any other
terms and conditions hereof.
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Section 17.2 Assignment. Neither this Agreement nor any right
created hereby or in any agreement entered into in connection with the
transactions contemplated hereby shall be assignable by any party hereto, except
by APPM to a wholly owned subsidiary of APPM; provided that any such assignment
shall not relieve APPM of its obligations hereunder.
Section 17.3 Parties in Interest; No Third Party Beneficiaries.
Except as otherwise provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and permitted assigns of the parties hereto. Neither
this Agreement nor any other agreement contemplated hereby shall be deemed to
confer upon any person not a party hereto or thereto any rights or remedies
hereunder or thereunder.
Section 17.4 Entire Agreement. Except as is expressly provided in
writing, this Agreement and the agreements contemplated hereby constitute the
entire agreement of the parties regarding the subject matter hereof, and
supersede all prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
Section 17.5 Severability. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws
effective during the term hereof, such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
Section 17.6 Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants contained herein shall survive the
Closing in accordance with the provisions of Section 14.7, and all statements
contained in any certificate, exhibit or other instrument delivered by or on
behalf of Seller, the General Partners, APPM or Buyer pursuant to this Agreement
shall be deemed to have been representations and warranties by Seller, the
General Partners, APPM or Buyer, as may be the case.
Section 17.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE COMMONWEALTH OF VIRGINIA.
Section 17.8 Captions. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
Section 17.9 Gender and Number. When the context requires, the
gender of all words used herein shall include the masculine, feminine and
neuter, and the number of all words shall include the singular and plural.
Section 17.10 Reference to Agreement. Use of the words "herein,"
"hereof," "hereto" and the like in this Agreement shall be construed as
references to this Agreement as a whole and not to any particular Article,
Section or provision of this Agreement, unless otherwise noted.
Section 17.11 Confidentiality; Publicity and Disclosures. Each party
shall keep this Agreement and its terms confidential, and shall make no press
release or public disclosure, either written or oral, regarding the transactions
contemplated by this Agreement without the prior knowledge and consent of the
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other parties hereto except (a) to authorized representatives of said party and
(b) to counsel, other advisers and immediate family members to said party
provided that such advisers and immediate family members (other than counsel)
agree to the confidentiality provisions of this Section 17.11, unless (i) such
information becomes available to or known by the public generally through no
fault of the APPM, Buyer, Seller or the Partners, as the case may be, (ii)
disclosure is required by law or the order of any governmental authority under
color of law, provided, that prior to disclosing any information pursuant to
this clause (ii) APPM, Buyer, Seller or the Partners, as the case may be, shall,
if possible, give prior written notice thereof to the other parties and provide
the other parties with the opportunity to contest such disclosure, (iii) the
disclosing party reasonably believes that such disclosure is required in
connection with the defense of a lawsuit against the disclosing party, or (iv)
the disclosing party is the sole and exclusive owner of such confidential
information as a result of the transactions hereunder; provided that the
foregoing shall not prohibit any disclosure by press release, filing or
otherwise that APPM has determined in its good faith judgment to be required by
federal securities laws or the rules of the Securities and Exchange Commission
or the National Association of Securities Dealers.
Section 17.12 Notice. Whenever this Agreement requires or permits any
notice, request, or demand from one party to another, the notice, request or
demand must be in writing to be effective and shall be deemed to be delivered
and received (i) if personally delivered, when actually received by the party to
whom notice is sent, or (ii) if delivered by mail (whether actually received or
not), at the close of business on the third business day next following the day
when placed in the mail, postage prepaid, certified or registered, or (iii) if
delivered by nationally-recognized overnight courier, at the close of the next
business day following delivery to said overnight courier, addressed to the
appropriate party or parties, at the address of such party set forth below (or
at such other address as such party may designate by written notice to all other
parties in accordance herewith):
If to APPM and Buyer: American Physician Partners, Inc.
3600 Chase Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
with a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Seller Magnetic Resonance Imaging Associates Limited
or any General Partner: Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
with a copy to: Sherman, Meehan, ▇▇▇▇▇▇ & Ain
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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Section 17.13 No Waiver; Remedies. No party hereto shall by any act
(except by written instrument pursuant to Section 17.1 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default in or breach of any of the terms
and conditions hereof. No failure to exercise, nor any delay in exercising, on
the part of any party hereto, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. No remedy set forth in this
Agreement or otherwise conferred upon or reserved to any party shall be
considered exclusive of any other remedy available to any party, but the same
shall be distinct, separate and cumulative and may be exercised from time to
time as often as occasion may arise or as may be deemed expedient.
Section 17.14 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
Section 17.15 Defined Terms. Terms used in the attached Exhibits and
the Schedules attached hereto with their initial letter capitalized and not
otherwise defined therein shall have the meanings as assigned to such terms in
this Agreement.
Section 17.16 Schedules and Exhibits. The Schedules and Exhibits
attached to this Agreement are by this reference incorporated herein and made a
part hereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
APPM:
AMERICAN PHYSICIAN PARTNERS, INC.
By:
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
BUYER:
ORMOND IMAGING PARTNERS, INC.
By:
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
SELLER:
MAGNETIC RESONANCE IMAGING ASSOCIATES
LIMITED PARTNERSHIP
By:
-------------------------------------
Name:
--------------------------------
Its: Managing General Partner
GENERAL PARTNERS:
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▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. Perl
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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