Exhibit 4.2
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STOCK PURCHASE AGREEMENT
by and between
PHP HEALTHCARE CORPORATION,
Purchaser,and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
SELLERS,
Dated As of November 1, 1992
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TABLE OF CONTENTS
RECITALS 1
ARTICLE I
PURCHASE AND SALE 1
1.1 The Shares 1
1.2 Consideration 1
1.3 Place, Time and Effectiveness 2
1.4 Deliveries of Sellers at Closing 2
1.5 Deliveries of Purchaser at Closing 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS 2
2.1 Stock Ownership 2
2.2 Valid and Enforceable Agreement; Authorization 3
2.3 Subsidiaries 3
2.4 Property, Licenses and Permits 3
2.5 Capitalization and Related Matters 3
2.6 Financial Statements 4
2.7 Taxes 4
2.9 Accounts Receivable 5
2.10 Inventories 5
2.11 Books and Records 6
2.12 Absence of Certain Changes 6
2.13 No Undisclosed Liabilities 8
2.14 No Breach of Law or Governing Document 8
2.15 Litigation 8
2.16 Environmental Matters 9
2.17 Contracts 10
2.18 Intellectual Property 10
2.19 Officers, Directors, Employees and Consultants 11
2.20 Bank Accounts of EastWest 12
2.21 Transactions with Related Persons 12
2.22 Employment Relations 12
2.23 Employee Benefit Matters 13
2.24 Other Governmental Approvals and Filings 14
2.25 Complete Disclosure 14
2.26 Brokers, Finders 14
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER 14
3.1 Authorization 15
3.2 Brokers, Finders 15
ARTICLE IV
COVENANTS 15
4.1 Board of Directors 15
4.2 Non-Compete 15
4.3 Guaranty 15
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ARTICLE V
CONDITIONS TO PURCHASER'S OBLIGATIONS 15
5.1 Representations and Warranties 15
5.2 Performance of Agreement 15
5.3 Governmental Approvals 16
5.4 No Adverse Proceeding 16
5.5 Certificates 16
5.6 Opinion 16
5.7 Due Diligence 16
5.8 Employment Agreements 16
5.9 Continuation of Key Employees 16
ARTICLE VI
CONDITIONS TO SELLERS' OBLIGATIONS 16
6.1 Representations and Warranties 17
6.2 Performance of Agreement 17
6.3 Governmental Approvals 17
6.4 No Adverse Proceeding 17
6.5 Certificate 17
ARTICLE VII
REMEDIES 17
7.1 Indemnification of Purchaser 17
7.2 Indemnification of Sellers 18
7.3 Survival 18
7.4 Notice of Claim 18
7.5 Right to Contest Claims of Third Parties 18
7.6 Arbitration 20
ARTICLE VIII
MISCELLANEOUS PROVISIONS 21
8.1 Notice 21
8.2 Entire Agreement 22
8.3 Assignment; Binding Agreement 22
8.4 Severability 23
8.5 Counterparts 23
8.6 Headings; Interpretation 23
8.7 Expenses and Transactions 23
8.8 Waiver; Consent 23
8.9 Governing Law 24
8.10 Exhibits and Schedules 24
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is executed as of November
1, 1992, by and between PHP Healthcare Corporation, a Delaware corporation
("Purchaser"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇-▇▇▇▇▇▇▇") (▇▇▇▇▇▇ and ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ collectively referred to herein
as "Sellers").
RECITALS
A. Purchaser desires to purchase from Sellers, on the terms and subject to
the conditions hereinafter stated, all of the issued and outstanding shares of
all classes or series of the capital stock (the "Shares") of EastWest Research
Corporation, a Maryland corporation ("EastWest"); and
▇. ▇▇▇▇▇▇▇ desire to sell the Shares to Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual promises,
warranties, covenants, and agreements made in this Agreement, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 THE SHARES. Upon the terms and subject to the conditions set forth in
this Agreement, at the Closing (as hereinafter defined), Sellers shall sell,
assign, transfer and deliver to Purchaser and Purchaser shall purchase, receive
and accept from Sellers in consideration of payment to Sellers of the Purchase
Price (as hereinafter defined), the Shares, free and clear of all liens,
security interests, encumbrances, pledges, charges, claims, voting trusts and
restrictions on transfer of any nature whatsoever, other than restrictions on
transfer of a general nature arising under federal and state securities laws.
1.2 CONSIDERATION. Purchaser shall pay Sellers the following consideration
(the "Purchase Price") for the Shares and the other rights of Purchaser
hereunder:
(a) Purchaser shall pay to ▇▇▇▇▇▇ Four Hundred Thirty-Nine Thousand Dollars
($439,000), of which One Hundred Thirty-Nine Thousand Dollars ($139,000) shall
be payable on the Closing Date and the balance shall be payable in equal
installments on each of the first four (4) anniversaries of the of the date
hereof, together with interest on such installment at the rate of six percent
(6.0%) per annum, as evidenced by a Note in the form attached as Exhibit A. In
addition, Purchaser shall grant to ▇▇▇▇▇▇ warrants to purchase a total of
Twenty-Two Thousand Five Hundred (22,500) shares of Purchasers' common stock,
$.01 par value, at the prices and on the terms and conditions set forth in
Exhibit B.
(b) Purchaser shall pay to ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ One Hundred Seventy-Two Thousand
Dollars ($172,000), of which Seventy-Two Thousand Dollars ($72,000) shall be
payable on the Closing Date and the balance shall be payable in equal
installments on each of the first four (4) anniversaries of the date hereof,
together with interest on such installment at the rate of six percent (6.0 %)
per annum, as evidenced by a Note in the form attached as Exhibit C. In
addition, Purchaser shall grant to ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ warrants to purchase a total
of Seventy-Five Hundred (7,500) shares of Purchasers' common stock, $.01 par
value, at the prices and on the terms and conditions set forth in Exhibit D.
1.3 Place, Time and Effectiveness. The Closing (the "Closing") shall take
place on December 18, 1992 (the "Closing Date"), effective as of midnight
November 1, 1992, at the offices of ▇▇▇▇▇ ▇▇▇▇, Washington D.C., or at such
other date and place as the parties may agree in writing.
1.4 DELIVERIES OF SELLERS AT CLOSING. At the Closing, Sellers shall
deliver to Purchaser certificates evidencing the Shares, duly endorsed or
accompanied by appropriate, duly executed stock powers in form sufficient to
permit transfer of the Shares to Purchaser.
1.5 DELIVERIES OF PURCHASER AT CLOSING. At the Closing, Purchaser shall
deliver to Sellers certified checks made payable to ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
in the amount of One Hundred Thirty-Nine Thousand Dollars ($139,000) and
Seventy-Two Thousand Dollars ($72,000), respectively, Notes in form attached as
Exhibits A and C, and Warrants in the form attached as Exhibits B and D.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby make the following representations and warranties to the
Purchaser, jointly and severally, each of which is true and correct on the date
hereof and each of which shall survive the Closing Date and the sale
contemplated hereby:
2.1 STOCK OWNERSHIP. Sellers are the owner of record and the beneficial
owner of the Shares, which are represented by the certificates set forth on
Schedule 2.1. The Shares, which consist of 100 shares of common stock, are owned
by Sellers free and clear of all liens, security interests, encumbrances,
pledges, charges, claims, voting trusts and restrictions of any
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nature whatsoever. The Shares constitute all of the issued and outstanding
capital stock of EastWest, and are all validly issued, fully paid and
nonassessable.
2.2 VALID AND ENFORCEABLE AGREEMENT; AUTHORIZATION.
(a) Sellers have the ability and power to enter into this Agreement, which
constitutes a valid obligation of Sellers, enforceable against Sellers in
accordance with its terms.
(b) EastWest is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland. EastWest has the corporate
power and authority to own and use its properties and to transact the business
in which it is engaged.
2.3 SUBSIDIARIES. EastWest has no subsidiaries and has no direct or
indirect beneficial investment or other interest in or obligation with respect
to any other entity, corporation, partnership, joint venture or enterprise.
2.4 PROPERTY, LICENSES AND PERMITS. Except as set forth on Schedule 2.4,
EastWest owns all personal property necessary to transact the business in
which it is engaged, free and clear of all mortgages, options, liens, charges,
security interests, leases, covenants, conditions, agreements, claims,
restrictions and other encumbrances of every kind, and there exists no
restriction on the use or transfer of such property. EastWest holds all
licenses and permits necessary and required to transact the business in
which it is engaged.
2.5 CAPITALIZATION AND RELATED MATTERS. The authorized capital stock of
EastWest consists of 10,000 shares of common stock, par value $.10. There are no
authorized or issued shares of capital stock or other securities of EastWest
other than such common stock. There are no (a) outstanding stock or other
securities convertible or exchangeable for shares of EastWest's capital stock or
containing any profit participation features or (b) rights or options to
subscribe for or purchase shares of EastWest's capital stock or any stock or
securities convertible or exchangeable therefor. EastWest is not subject to any
obligation, contingent or otherwise, to repurchase or otherwise acquire or
retire any shares of its capital stock or any warrants, options or other rights
to acquire its capital stock.
2.6 FINANCIAL STATEMENTS. The Financial Statements (as hereinafter
defined) are true, complete and correct and fairly present the financial
position, results of operations and
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cash flows of EastWest at the dates and for the periods indicated. Except as
set forth on Schedule 2.6 attached hereto, the Financial Statements have been
prepared in accordance with generally accepted accounting principles applied
on a consistent basis. As used in this Agreement, "Financial Statements"
means the unaudited balance sheet of EastWest as of October 31, 1992,
together with any notes or schedules thereto. As of the date hereof and the
Closing Date, the stockholders' equity of EastWest, determined according to
generally accepted accounting principles, and its working capital, determined
in such manner, shall be substantially as set forth in the Financial
Statements.
2.7 TAXES.
(a) EastWest has filed or caused to be filed in a timely fashion with the
appropriate Federal, state, county, local and foreign governmental agencies or
instrumentalities all tax returns and reports required to be filed (including
estimated tax and informational returns) and none of such returns and reports
have been amended. All such returns and reports are true, correct and complete
in all material respects. All Taxes (as hereinafter defined) payable with
respect to the periods reflected on those returns have been fully paid. There
are no grounds for the assertion or assessment of any additional Taxes against
EastWest or its assets with respect to returns or reports filed by EastWest.
EastWest is not a member of an "affiliated group" within the meaning of Section
1504 of the Internal Revenue Code of 1986, as amended (the "Code").
(b) Without limiting the foregoing subsection (a) of this Section, the
Financial Statements include adequate provision for all Taxes which have been or
may in the future be assessed against EastWest with respect to the appropriate
period then ended and all periods prior thereto; and EastWest is not liable for
any other Taxes, including any accrued but unpaid Taxes not yet due and owing,
which accrued but unpaid Taxes are included in the Financial Statements to the
extent accrued through October 31, 1992.
(c) As used in this Agreement, "Taxes" shall mean all taxes, charges, fees,
levies, or other like assessments, including without limitation income, gross
receipts, ad valorem, premium, excise, real property, personal property,
windfall profit, sales, use, transfer, license, withholding, employment,
payroll, and franchise taxes imposed by the United States or any state, local or
foreign government, or any subdivision, agency, or other similar person of the
United States or any such government; and such term shall include any interest,
fines, penalties, assessments, or additions to tax resulting from, attributable
to, or incurred in connection with any such tax or
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any contest or dispute thereof.
2.9 ACCOUNTS RECEIVABLE. All the accounts receivable of EastWest, and an
aging schedule relating thereto, each as of October 31, 1992, are set forth in
the list attached hereto as Schedule 2.9. Said accounts receivable, and any
accounts receivable arising between said date and the Closing Date
(collectively, the "Accounts Receivable"), all are or will be valid and
subsisting and all arose or will have arisen in the ordinary and usual course of
the business of EastWest. The reserve for the uncollectible receivables
reflected in the Financial Statements is adequate. The Accounts Receivable are
not and will not be, as of the Closing Date, subject to any counterclaim,
set-off or defense, or to any lien, charge or encumbrance of any nature. The
Accounts Receivable are and will be current and collectible and will be paid in
full, net of reserves, on or before ninety (90) days after the Closing Date,
less any applicable discounts.
2.10 INVENTORIES. All inventories held by EastWest at any location are:
(i) assets currently merchantable in the ordinary and usual course of business
at values not less than book value as of the date hereof; and (ii) free and
clear of all pledges, liens, security interests, encumbrances and other
restrictions whatsoever.
2.11 BOOKS AND RECORDS. The books of account, stock record books, minute
books, bank accounts and other corporate records of EastWest are complete and
correct, have been maintained in accordance with good business practices and the
matters contained therein are accurately reflected in the Financial Statements
to the extent appropriate. Copies of the articles of incorporation and bylaws
and all amendments thereto of EastWest are attached hereto as Schedule 2.11 and
are correct and complete to the date hereof.
2.12 ABSENCE OF CERTAIN CHANGES. Since December 31, 1991, except as set
forth in the Financial Statements or Schedule 2.12 hereto, there have not been:
(a) Any material adverse change in the financial condition or the
operations, properties, assets, business or prospects of EastWest or any
occurrence, circumstance, or combination thereof which reasonably could be
expected to result in any such material adverse change;
(b) Any declaration, setting aside or payment of any dividend or any
distribution (in cash or in kind) to any shareholder of EastWest with respect to
such shareholder's shares of the capital stock of EastWest other than those made
in the
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ordinary course and on arms-length conditions; any direct or indirect
redemption, purchase or other acquisition by EastWest of any of its capital
stock or of any options, warrants, rights or agreements to purchase or acquire
such stock; or any issuance or other disposition of any note or other securities
of EastWest or any agreement to take any of the aforesaid actions;
(c) Any increase in compensation or other remuneration payable to or for the
benefit of or committed to be paid to or for the benefit of any shareholder,
director, officer, agent or employee of EastWest, or in any benefits granted
under any bonus, stock option, profit sharing, pension, retirement, deferred
compensation, insurance, or other direct or indirect benefit Agreement made to
or for the benefit of, or with, any such director, shareholder, officer, agent
or employee;
(d) Any transaction entered into or carried out by EastWest other than in
the ordinary and usual course of business;
(e) Any borrowing or agreement to borrow funds; any incurring of any other
indebtedness or liability, contingent or otherwise; or any endorsement,
assumption or guarantee of payment or performance of any loan or obligation of
any other individual, firm, corporation or other entity by EastWest;
(f) Any change made by EastWest in its methods of doing business or of
accounting;
(g) Any mortgage, pledge, lien, security interest, hypothecation, charge or
other encumbrance imposed or agreed to be imposed on or with respect to any
properties or assets, tangible or intangible, of EastWest;
(h) Any lien, mortgage, security interest, pledge, charge or other
encumbrance discharged or satisfied, or any obligation or liability (absolute or
contingent) paid, other than current liabilities shown on the Financial
Statements and the Closing Date Balance Sheet and current liabilities incurred
and obligations arising under contracts entered into after the date thereof in
the usual and ordinary course of business;
(i) Any sale, lease or disposition of, or any agreement to sell, lease or
dispose of, any properties or assets held for use, used or useful in the
business of EastWest, other than sales, leases or dispositions in the usual and
ordinary course of business for fair equivalent value to persons other than
directors, officers or shareholders of EastWest or sales or dispositions
expressly referred to in this Agreement;
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(j) Any modification, waiver, change, amendment, release, rescission, accord
and satisfaction or termination of, or with respect to, any material term,
condition or provision of any agreement, to which EastWest is party, other than
any satisfaction by performance in accordance with the terms thereof in the
usual and ordinary course of business;
(k) Any purchase by EastWest, or any agreements by EastWest to purchase,
capital assets;
(l) Any labor disputes or disturbances materially affecting in an adverse
fashion the operations, business, financial condition or prospects of EastWest,
including the filing of any petition or charge of unfair labor practices with
the National Labor Relations Board;
(m) Any loan or advance made by EastWest to any individual, firm,
corporation or entity except for advances not material in amount made in the
usual and ordinary course of business to employees who are not shareholders,
officers or directors of EastWest; or
(n) Any other event or condition of any character which adversely affects,
or may reasonably be expected to so affect, the operations, properties and
assets, business, financial condition or prospects of EastWest.
2.13 NO UNDISCLOSED LIABILITIES. EastWest does not have any liabilities or
obligations whatsoever, known or unknown, accrued, absolute, contingent or
otherwise, and there is no basis for any claim against EastWest for any
liability or obligation, except (a) to the extent set forth in the Financial
Statements, (b) to the extent specifically set forth on Schedule 2.13 attached
hereto or other Schedule to this Agreement, or (c) contractual obligations due
after the effective time of the Closing for purchases or sales of goods and
services in the ordinary course of the business of EastWest which (i) are not
required to be set forth in a Schedule hereto or (ii) were entered into after
the date hereof but before the Closing Date.
2.14 NO BREACH OF LAW OR GOVERNING DOCUMENT. EastWest is not in default
under or in violation of any applicable statute, law, ordinance, decree, order,
rule, or regulation of any governmental body, or the provisions of any franchise
or license, or in default under or in violation of any provision of its articles
of incorporation or its bylaws. Neither the execution of this Agreement nor the
Closing do or will constitute or result in any such default or violation.
2.15 LITIGATION. Except as set forth on Schedule 2.15,
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there is no suit, claim, action, litigation or proceeding, administrative or
judicial, or any governmental investigation pending or, to the knowledge of
Sellers or EastWest, threatened against EastWest or involving any of its
properties and assets, or, in connection with the business of EastWest, any
of its shareholders, directors, officers, agents or other personnel,
including without limiting the generality of the foregoing, any claim,
proceeding or litigation for the purpose of challenging, enjoining or
preventing the execution and delivery of this Agreement or any other
agreement to be delivered hereunder, the performance of the respective terms
and conditions hereof or thereof or the consummation of the respective
transactions contemplated hereby or thereby. EastWest is not subject to or in
default under any order, writ, injunction or decree of any court or
governmental authority.
2.16 ENVIRONMENTAL MATTERS.
(a) Except as disclosed on Schedule 2.16 attached hereto, all property
owned, leased or used by EastWest at the Closing Date or previously owned by,
used by or leased to EastWest ("Property"), and all existing and prior
conditions on and uses of such Property, comply and have at all times complied
with, and do not cause and have not caused liability to be incurred under any or
all federal, state, county and local statutes, laws, regulations, rules,
ordinances, codes, licenses and permits relating to the protection of health or
the environment, including by way of illustration and not by way of limitation:
the Clean Air Act; the Federal Water Pollution Control Act; the Resource
Conservation and Recovery Act; the Comprehensive Environmental Response,
Compensation and Liability Act; the Toxic Substance Control Act, and all other
applicable environmental laws and regulations including, without limiting the
generality of the foregoing, the common law, including the law of nuisance and
strict liability (collectively, "Environmental Laws"). Except as disclosed on
Schedule 2.16 attached hereto, EastWest is not in violation of and has not
violated, in connection with the ownership, use, maintenance or operation of the
Property or the conduct of its business, any Environmental Laws.
(b) Except as disclosed on Schedule 2.16, EastWest has obtained and is in
compliance with all necessary permits, registrations, approvals and licenses,
and has made all registrations and filings with and submissions to federal,
state, and local regulatory authorities required by or under any Environmental
Law. All such registrations, filings and submissions were in compliance with
applicable law when filed and no deficiencies have been asserted by any such
authority with respect to such registrations, filings or submissions.
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(c) Except as disclosed on Schedule 2.16, there have been no spill,
discharge, leak, emission, injection, disposal, escape, dumping or release of
any kind on, beneath or above the Property or into the environment surrounding
the Property of any pollutants, contaminants, hazardous substances, hazardous
chemicals, toxic substances, hazardous wastes, infectious wastes, radioactive
materials, petroleum including crude oil or any fraction thereof, asbestos
fibers or solid wastes (collectively referred to herein as "Hazardous
Materials"), including but not limited to those defined in any Environmental
Law.
(d) Except as disclosed on Schedule 2.16, (i) there have been no past, and
there is no current or anticipated, storage, disposal, generation, manufacture,
refinement, transportation, production or treatment of any Hazardous Materials
at, upon or from the Property; (ii) no asbestos fibers or materials or
polychlorinated biphenyls (PCBs) are or have been on the Property, and (iii)
there are and have been no underground storage tanks located on the Property.
2.17 CONTRACTS. Set forth on Schedule 2.17 attached hereto is a complete
list of each contract, agreement, indenture and evidence of indebtedness,
contingent or otherwise (the "Contracts"), to which EastWest is a party and
which either (a) involves an obligation in excess of One Thousand Dollars
($1,000) or (b) is not terminable upon 30 days' notice without liability. Except
as indicated on Schedule 2.17, neither EastWest nor, to the knowledge of Sellers
and EastWest, any other party to the Contracts is in default thereunder or in
violation thereof, and no event has occurred that, through the passage of time
or the giving of notice, or both, would constitute, and neither the execution of
this Agreement nor the Closing hereunder do or will constitute or result in,
such a default or violation or would cause the acceleration of any obligation of
any party thereto or the creation of a lien or encumbrance upon any property of
EastWest or the Shares.
2.18 INTELLECTUAL PROPERTY. Except as described on Schedule 2.18, (a) with
respect to all of the names, patents, inventions, processes, trade secrets,
marks, symbols, tradenames, trademarks, service marks, copyrights and logos
(collectively, the "Intellectual Property"), all computer software programs and
any other material computer "know how" currently existing or under development
(the "Software"), all licenses, sublicenses or agreements in respect of the
Intellectual Property or Software; and all filings, applications, registrations
or issuances of or relating to any of the foregoing with or by any Federal,
state,
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local or foreign regulatory, administrative or governmental office or
offices which are owned, used or licensed by or to EastWest in connection with
its business or to which EastWest is a party or which are used by EastWest in
its business:
(i) EastWest is the sole and exclusive owner of all rights, title and
interest in and to such Intellectual Property and Software, free and clear of
all liens, claims, charges, equities, rights of use, encumbrances and
restrictions whatsoever. EastWest is the exclusive owner of all rights, title
and interest in and to any prospect lists, customer lists, projections,
analyses, and internally developed market studies, research and research
materials pertaining to the business of EastWest, free and clear of all liens,
claims, encumbrances and restrictions whatsoever, and has the right to use any
other market studies, research and research materials used by EastWest but not
exclusively owned.
(ii) No Intellectual Property or Software is necessary in any respect of the
operation of the business of EastWest. The ownership, use or sale by EastWest of
any of the Intellectual Property or Software, does not contravene, conflict
with, violate or infringe upon any trademark, copyright or other proprietary
right of any third party or depend for noncontravention upon the acquiescence,
agreement or consent of any such third party.
(iii) None of the Intellectual Property or Software is subject to a valid
challenge, claim of infringement, claim of unfair competition or other claim or,
to the knowledge of Sellers or EastWest, is being infringed upon or violated by
any person, firm, corporation or other legal entity.
(iv) EastWest has not given any indemnification for patent, trademark or
copyright infringement as to any equipment, materials, products, services or
supplies which EastWest produces, owns, uses, licenses or sells; and no product,
process, method, service or operation, which does not constitute Intellectual
Property or Software, presently sold, engaged in or employed by EastWest
infringes upon any rights owned by any other person, firm, corporation or
other legal entity.
2.19 OFFICERS, DIRECTORS, EMPLOYEES AND CONSULTANTS. Set forth on
Schedule 2.19 hereto is a complete list of:
(a) all directors of EastWest;
(b) all officers (with office held) of EastWest;
(c) all employees of EastWest; and
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(d) all consultants to EastWest;
together, in each case, with the current rate of compensation payable to each.
2.20 BANK ACCOUNTS OF EASTWEST. Set forth on Schedule 2.20 hereto is a
list of (a) the locations and numbers of all bank accounts and safe deposit
boxes maintained by EastWest, together with the names of all persons who are
authorized signatories or have access thereto and (b) the names of all persons,
if any, holding powers of attorney from EastWest and a summary statement of the
terms thereof.
2.21 TRANSACTIONS WITH RELATED PERSONS. Except as disclosed on Schedule
2.21 hereto, EastWest has no obligations, contractual or otherwise, owed to or
owing from, directly or indirectly, Sellers, any affiliate of Sellers, or any
member of Sellers' families. Except as disclosed on Schedule 2.21, no director,
officer, affiliate or shareholder of EastWest has any material financial
interest, direct or indirect, in any supplier or customer of, or other business
which has any significant transactions or other material business relationship
with, EastWest. For purposes of this Section and this Agreement, an "affiliate"
of a person means any person which is controlling, controlled by or under common
control with, directly or indirectly, the person referred to.
2.22 EMPLOYMENT RELATIONS.
(a) EastWest is in compliance with all federal, state or other applicable
laws, domestic or foreign, respecting employment and employment practices, terms
and conditions of employment and wages and hours, including, without limitation,
Title VII of the Civil Rights Act of 1964, as amended, the Occupational Safety
and Health Act of 1970, as amended, and the Fair Labor Standards Act, as
amended, and all rules and regulations promulgated thereunder; and EastWest has
not and is not engaged in any unfair labor practice;
(b) No unfair labor practice complaint against EastWest is pending or, to
the knowledge of Sellers or EastWest, threatened before the National Labor
Relations Board;
(c) There is no labor strike, dispute, slowdown or stoppage pending or, to
the knowledge of Sellers or EastWest, threatened against EastWest;
(d) No right of representation exists respecting EastWest's employees;
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(e) No employee grievance will have a material adverse effect upon EastWest
or the conduct of its business and no arbitration proceeding arising out of or
under any agreement relating to employment is pending and no claim therefor has
been asserted;
(f) No collective bargaining Agreement is currently being negotiated and no
organizing effort is currently being made with respect to EastWest's employees;
and
(g) EastWest has not experienced any other material labor difficulty since
its incorporation.
2.23 EMPLOYEE BENEFIT MATTERS.
(a) Except as set forth on Schedule 2.23 hereto, EastWest is not a party to
(i) any pension, profit sharing, deferred compensation, bonus, stock option,
stock purchase, retainer, consulting, health, welfare, retirement or incentive
plan or agreement whether legally binding or not, (ii) any plan or policy
providing for welfare or "fringe" benefits to its stockholders, directors,
employees, or agents including but not limited to, vacation, severance,
disability, sick leave, medical, hospitalization, life insurance and other
insurance plans, and related benefits, or (iii) any employment agreement, all of
which are referred to herein individually and collectively as "Plan(s)."
(b) Each Plan has been administered in compliance with, and neither Sellers
nor EastWest have any direct or indirect liability under, the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
(c) (i) EastWest has not made any contributions to, (ii) EastWest has
never been a member of a controlled group which contributed to and (iii)
EastWest has never been under common control with an employer which
contributed to any multi-employer plan (as defined in ERISA Section 3(37)
or ERISA Section 4001(a)(3)) nor to any pension plan subject to the minimum
funding standards of ERISA or Title IV of ERISA.
(d) EastWest is not a party to any Plan that is intended to qualify under
Section 401(a) or Section 501(a) of the Code.
(e) All of the Plans listed on Schedule 2.23 hereof, to the extent
applicable, are in compliance with the continuation of health benefit provisions
contained in the
12
Consolidated Omnibus Budget Reconciliation Act of 1985, as subsequently
amended ("COBRA").
(f) All of the Plans listed on Schedule 2.23 hereof, to the extent
applicable, are in compliance with Section 1862(b)(4)(A)(i) of the Social
Security Act and EastWest does not have any liability for any excise tax imposed
by Code Section 5000.
(g) True, correct and complete copies of all documents creating or
evidencing any Plan listed on Schedule 2.23 have been delivered to Buyer. There
are no negotiations, demands or proposals which are pending or have been made
which concern matters now covered, or that would be covered, by the type of
agreements listed in Schedule 2.23.
2.24 OTHER GOVERNMENTAL APPROVALS AND FILINGS. Neither the Sellers nor
EastWest are required to obtain any consent, approval or authorization of, or to
make any declaration or filing with, any governmental authority for the valid
execution and delivery of this Agreement or any other agreement to be delivered
hereunder, the purchase and sale of the Shares, or the performance or
consummation of the respective transactions contemplated hereby or thereby.
2.25 COMPLETE DISCLOSURE. No representation or warranty by Sellers in this
Agreement or any Schedule referred to herein or in any agreement to be delivered
hereunder, and no written statement, certificate or other writing furnished to
Purchaser by or on behalf of Sellers pursuant hereto or thereto knowingly
contains or will contain as of the Closing Date a material untrue statement of
fact or any omission of a material fact necessary to make the respective
statements contained herein or therein not materially or substantially
misleading.
2.26 BROKERS, FINDERS. No finder, broker, agent or other intermediary has
acted on behalf of Sellers, or is entitled to a commission or a finder's fee
in connection with the negotiation or consummation of this Agreement or any
of the transactions contemplated hereby and is responsible for any and all
such commissions and fees owed to parties claiming through or on behalf of
Sellers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties to
Sellers, each of which is true and correct on the date hereof and each of which
shall survive the Closing Date and the sale contemplated hereby:
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3.1 AUTHORIZATION. Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of Delaware. Purchaser has all
requisite power and authority to execute and deliver this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby. This Agreement constitutes a valid and binding
obligation of Purchaser, enforceable in accordance with its respective terms.
3.2 BROKERS, FINDERS. Except as set forth on Schedule 3.2, no finder,
broker, agent or other intermediary has acted on behalf of Purchaser, or is
entitled to a commission or a finder's fee in connection with the negotiation
or consummation of this Agreement or any of the transactions contemplated
hereby and is responsible for any and all such commissions and fees owed to
parties claiming through or on behalf of Purchaser.
ARTICLE IV
COVENANTS
4.1 BOARD OF DIRECTORS. Purchaser shall vote all of the shares of capital
stock of EastWest owned by Purchaser to elect a board of directors of EastWest
consisting of five (5) persons, including each of the Sellers if they remain
employed by EastWest.
4.2 NON-COMPETE. In consideration of the sale of the Shares and the
consummation of the transactions contemplated hereby, each of the Sellers
covenants and agrees that:
(a) (i) He or she will not, directly or indirectly, as a principal,
employee, partner, agent or otherwise, (A) compete, assist in or provide
financial resources to any activity which competes with the business of
EastWest or Purchaser as it is currently conducted or as, to his or her
knowledge, it is currently contemplated to be conducted, except that if and
so long as he or she is no longer employed by EastWest or Purchaser, he or
she may engage, as principal or partner, in the business of consulting, but
only as and in the manner conducted by EastWest during the one (1) year
period prior to the Closing Date, or (B) solicit or divert or attempt to
solicit or divert the business of any persons or entities who are or were
vendors, joint venturers, contractors, clients, customers, consultants,
agents or representatives of EastWest or Purchaser during the one (1) year
period prior to the Closing Date or with whom EastWest or Purchaser has
discussed the possibility of becoming a vendor, joint venturer, contractor,
client, customer, consultant, agent or representative (unless
14
such person or entity shall have previously advised EastWest or Purchaser in
writing that it has no interest in continuing such discussions) or plans to
engage in such discussions, to his or her knowledge, or otherwise interfere
with or attempt to interfere with the relationship between EastWest or
Purchaser and any such person or entity, for a period of five (5) consecutive
years from the date hereof anywhere EastWest or Purchaser currently conducts,
or, to his or her knowledge, plans to conduct its business; provided,
however, that the running of such time period shall be tolled during any
period of time during which he or she violates this paragraph;
(ii) He or she will not use or disclose to anyone except authorized
personnel of EastWest or Purchaser, whether or not for his or her benefit or
otherwise, any confidential matters concerning EastWest or its business or
Purchaser or its business, including, without limitation, secrets, lists of
vendors, joint venturers, contractors, clients, customers, consultants, agents,
representatives or employees, mailing lists, details of contracts, pricing
policies, operational methods, marketing plans or strategies, product
development and techniques or plans, research and development programs and
plans, business acquisition plans, recruitment plans, designs and design
projects and any other research or business information concerning EastWest or
Purchaser which EastWest or Purchaser currently deems to be confidential;
(iii) He or she will not, directly or indirectly, solicit, encourage to
leave, or hire any officer of EastWest or Purchaser or any person who at the
time of such solicitation or hire has an employment agreement with EastWest or
Purchaser or is involved in sales, marketing or planning activities on behalf of
EastWest or Purchaser (a "Key Person") or who had been a Key Person within the
previous twelve (12) months.
(b) He or she acknowledges that the foregoing restrictions have been
negotiated with the advice of counsel, are reasonable in light of the
previous and existing business relationships between EastWest and Purchaser
and the acquisition of the Shares, including a substantial acquisition of
goodwill, by the Purchaser, and agrees that in the event of any breach
thereof the harm to Purchaser will be irreparable and without adequate remedy
at law, and therefore that injunctive relief with respect thereto will be
appropriate, and that Purchaser shall have no obligation to pay any amounts
which may still be owing to him or her under this Agreement or any note
executed in connection therewith.
(c) If any court determines that any of the provisions of this Section 4.2,
or any part thereof, is invalid
15
or unenforceable, the remainder of this Section 4.2 shall not be affected and
shall be given full effect, without regard to the invalid portions;
(d) If any court determines that any of the provisions of this Section 4.2,
or any part thereof, is unenforceable because of the scope of any of the
covenants contained therein, then the parties agree that such provision shall be
deemed reduced so that the covenants impose the maximum restraints permissible
under applicable law and, in its reduced form, such provision shall than be
enforceable and shall be enforced.
4.3 GUARANTY. Purchaser shall guaranty payment by EastWest to Sellers of
the base compensation amounts set forth in Section 3(a) of the Employment and
Non-Competition Agreements between EastWest and each of the Sellers.
ARTICLE V
CONDITIONS TO PURCHASER'S OBLIGATIONS
Each and every obligation of Purchaser to be performed under this Agreement
shall be subject to the complete and timely satisfaction at or prior to the
Closing of each of the following conditions (unless waived in writing by
Purchaser):
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Sellers set forth in Article II of this Agreement shall have been true and
correct in all respects when made and shall be true and correct in all respects
as of the Closing as though such representations and warranties were made at and
as of such date and time.
5.2 PERFORMANCE OF AGREEMENT. All covenants, conditions and other
obligations under this Agreement to be performed or complied with by Sellers at
or prior to the Closing shall have been fully performed and complied with,
including without limitation the delivery of all Shares and all the other
deliveries to be made pursuant to Section 1.4 hereof.
5.3 GOVERNMENTAL APPROVALS. All governmental consents and approvals
necessary to permit the consummation of the transactions required to close on
the Closing Date shall have been received.
5.4 NO ADVERSE PROCEEDING. No action or proceedings shall have been
instituted and remain pending before a court or other government body or by any
public authority for the purpose
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of enjoining or preventing the consummation of this Agreement or any
agreement delivered hereunder or any of the respective transactions
contemplated hereby or thereby or otherwise claiming that this Agreement or
any agreement delivered hereunder or the consummation hereof or thereof is
illegal.
5.5 CERTIFICATES. Sellers and EastWest shall have delivered to Purchaser
at the Closing certificates dated the Closing Date, to the effect that the
conditions set forth in Sections 5.1, 5.2, 5.3 and 5.4 hereof have been
satisfied. Such certificate shall be deemed an additional representation and
warranty of Sellers hereunder.
5.6 OPINION. Sellers shall have delivered to Purchaser an opinion of
counsel, addressed to Purchaser and dated the Closing Date; in form satisfactory
to Purchaser, to the affect set forth in Exhibit E.
5.7 DUE DILIGENCE. Purchaser shall be satisfied in all material aspects
with the results of its due diligence review, including, among other areas,
environmental, tort, securities, corporate, product liability, and insurance
matters.
5.8 EMPLOYMENT AGREEMENTS. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have executed
and delivered to Purchaser Employment Agreements in the form attached as
Exhibits F and G, respectively.
5.9 CONTINUATION OF KEY EMPLOYEES. Purchaser shall be satisfied that
employees it reasonably deems necessary to the continuing business of EastWest
will remain with EastWest after the Closing Date.
ARTICLE VI
CONDITIONS TO SELLERS' OBLIGATIONS
Each and every obligation of Sellers to be performed under this Agreement
shall be subject to the satisfaction at the Closing of the following conditions
(unless waived in writing by Sellers):
6.1 REPRESENTATIONS AND WARRANTIES. Purchaser's representations and
warranties set forth in Article III of this Agreement shall have been true and
correct in all respects when made, and shall be true and correct in all respects
at and as of the Closing as though such representations and warranties were made
at and as of such date and time.
6.2 PERFORMANCE OF AGREEMENT. Purchaser shall have
17
fully performed and complied with the covenants, conditions and other
obligations under this Agreement to be performed or complied with by it at or
prior to the Closing, including without limitation the deliveries to be made
pursuant to Section 1.5 hereof.
6.3 GOVERNMENTAL APPROVALS. All governmental consents and approvals
necessary to permit the consummation of the transactions contemplated hereby
shall have been received.
6.4 NO ADVERSE PROCEEDING. No action or proceedings shall have been
instituted and remain pending before a court or other government body or by any
public authority for the purpose of enjoining or preventing the consummation of
this Agreement or any of the respective transactions contemplated hereby or
otherwise claiming that this Agreement or any other agreement delivered
hereunder or the consummation hereof or thereof is illegal.
6.5 CERTIFICATE. Purchaser shall have delivered to Sellers at the Closing
a certificate, dated the Closing Date, to the effect that the conditions set
forth in Sections 6.1, 6.2, 6.3, and 6.4 have been satisfied. Such certificate
shall be deemed an additional representation and warranty of Purchaser
hereunder.
ARTICLE VII
REMEDIES
7.1 INDEMNIFICATION OF PURCHASER. Sellers agree, jointly and severally, to
hold Purchaser, its shareholders, directors, officers, successors, and any party
acting on the foregoing's behalf, harmless and indemnify each of them from and
against any claim, loss, damage, liability, expense or cost of any kind or
amount whatsoever (including reasonable attorneys' fees) incurred or paid either
before or after the date hereof resulting from or arising out of any breach of
or default under the Sellers' representations, warranties, covenants and
agreements contained in this Agreement.
7.2 INDEMNIFICATION OF SELLERS. Purchaser agrees to hold Sellers harmless
and indemnify them from and against any claim, loss, damage, liability, expense
or cost of any kind or amount whatsoever (including reasonable attorneys' fees)
incurred or paid either before or after the date hereof resulting from or
arising out of any breach of or default under the Purchaser's representations,
warranties, covenants and agreements contained in this Agreement.
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7.3 SURVIVAL. The respective representations and warranties made by the
parties in this Agreement or in any certificate or other document delivered
pursuant hereto or in connection herewith shall survive the Closing Date for
a period of five (5) years, but thereafter shall expire unless a claim with
respect thereto shall have been made in writing against the indemnifying
party pursuant to Section 7.4 hereof; provided, that the foregoing limitation
shall not apply to representations and warranties under Sections 2.1, 2.4,
2.5, 2.7, 2.16, 2.18 and 2.23, which shall survive without limitation
hereunder.
7.4 NOTICE OF CLAIM. In the event that any party hereto asserts a claim
for indemnification hereunder, such party seeking indemnification (the
"Indemnified Party") shall give written notice to the other party or parties
(the "Indemnifying Party") specifying the facts constituting the basis for such
claim and the amount, if known, of the claim asserted. The failure of the
Indemnifying Party, within a period of ninety (90) days after the giving of such
notice by the Indemnified Party, to give written notice to the Indemnified Party
of the intention to contest such claim shall be deemed an agreement that the
claim is a valid claim and at such time as it is known, the amount thereof shall
be paid promptly by the Indemnifying Party.
7.5 RIGHT TO CONTEST CLAIMS OF THIRD PARTIES. If an Indemnified Party
asserts a claim for indemnification hereunder because of a claim made by any
claimant not a party to this Agreement, the Indemnified Party shall give the
other party or parties reasonably prompt notice thereof, but in no event more
than ten (10) business days after said assertion is actually known to the
Indemnified Party; provided, however, that the right of an Indemnified Party to
be indemnified hereunder in respect of claims made by a third party shall not be
adversely affected by a failure to give such notice unless, and then only to the
extent that, an Indemnifying Party is materially prejudiced thereby. The
Indemnifying Party shall have the right, upon written notice to the Indemnified
Party, and using counsel reasonably satisfactory to the Indemnified Party, to
investigate, secure, contest or settle the claim alleged by such third party
(hereinafter called a "Third-Party Claim"), provided that the Indemnified Party
may participate voluntarily, at its own expense, in any such Third-Party Claim
through representatives and counsel of its own choice, and, provided further,
that the Indemnifying Party unconditionally acknowledges to the Indemnified
Party in writing his or its obligation to indemnify the Indemnified Party with
respect to all elements of such Third-Party Claim, and posts a bond in an
appropriate amount and that any action by the Indemnifying Party relating to the
Third-Party Claim shall be without prejudice to the Indemnified Party. The
Indemnified Party shall not settle or compromise any
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Third-Party Claim for which it is entitled to indemnification hereunder
without the prior written consent of the Indemnifying Party (which shall not
be unreasonably withheld) unless suit shall have been instituted against it
and the Indemnifying Party shall not have taken control of the defense of
such Third-Party Claim after notification thereof as provided in this Section
7.5.
Except as provided otherwise in the immediately preceding sentence, the
Indemnifying Party shall bear all costs of such Third-Party Claim and shall
indemnify and hold the Indemnified Party harmless against and from all costs,
fees and expenses of such Third-Party Claim. Unless and until the Indemnifying
Party elects to defend the Third-Party Claim, the Indemnified Party shall have
the full right, at its option, to do so and to look to the Indemnifying Party
under the provisions of this Purchase Agreement for the amount of the costs, if
any, of defending the Contest. The failure of the Indemnifying Party to respond
in writing to the aforesaid notice of the Indemnified Party with respect to such
Third-Party Claim within twenty (20) days after receipt thereof shall be deemed
an election not to defend the same. If the Indemnifying Party does not assume
the defense of any such Third-Party Claim, including any litigation resulting
therefrom, (a) the Indemnified Party may defend against such claim or
litigation, in such manner as it may deem appropriate, including, but not
limited to, settling such claim or litigation, after giving notice of the same
to the Indemnifying Party, on such terms as the Indemnified Party may deem
appropriate, and (b) the Indemnifying Party shall be entitled to participate in
(but not to control) the defense of such action, with its own counsel at its own
expense. If the Indemnifying Party thereafter seeks to question the manner in
which the Indemnified Party defended such Third-Party Claim or the amount or
nature of any such settlement, the Indemnifying Party shall have the burden to
prove by a preponderance of the evidence that the Indemnified Party did not
defend or settle such Third-Party Claim in a reasonably prudent manner.
The parties hereto shall make mutually available to each other all relevant
information in their possession relating to any such Third-Party Claim and shall
cooperate in the defense thereof.
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7.6 ARBITRATION.
(a) Resolution of any and all disputes between the parties to this Agreement
(each a "Party" and together the "Parties") arising from or in connection with
this Agreement whether based on contract, tort, common law, equity, statute,
regulation, order or otherwise ("Disputes"), shall be exclusively governed by
and settled in accordance with the provisions of this Section 7.6; provided,
that the foregoing shall not preclude equitable or other judicial relief to
enforce the provisions of this Section 7.6 or Section 4.2 or to preserve the
status quo pending resolution of Disputes hereunder.
(b) The Parties hereby agree to submit to arbitration all Disputes, which
arbitration shall be final and binding upon the Parties, their successors and
assigns.
(c) Either Party may initiate such arbitration by delivery of a demand
therefor (the "Arbitration Demand") to the other Party.
(d) The arbitration shall be conducted in Alexandria, Virginia, by a sole
arbitrator selected by agreement of the Parties not later than 10 days after
delivery of the Arbitration Demand or, failing such agreement, appointed
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association, as amended from time to time (the "AAA Rules"). If an arbitrator
becomes unable to serve, his successor(s) shall be similarly selected or
appointed.
(e) The arbitration shall be conducted pursuant to the Federal Arbitration
Act and the Virginia Uniform Arbitration Act and such procedures as the Parties
may agree or, in the absence of or failing such agreement, pursuant to the AAA
Rules. Notwithstanding the foregoing, (i) each Party shall have the right to
audit the books and records of the other Party that are reasonably related to
the Dispute; (ii) each Party shall provide to the other, reasonably in advance
of any hearing, copies of all documents which a Party intends to present in such
hearing; (iii) all hearings shall be conducted on an expedited schedule; and
(iv) all proceedings shall be confidential, except that either Party may at its
expense make a stenographic record thereof.
(f) The arbitrator shall complete all hearings not later than 90 days after
his selection or appointment, and shall make a final award not later than 30
days thereafter. The arbitrator shall apportion all costs and expenses of the
arbitration, including the arbitrator's fees and expenses and fees and expenses
of experts ("Arbitration Costs") between the
21
prevailing and non-prevailing Party as the arbitrator shall deem fair and
reasonable. In circumstances where a Dispute has been asserted or defended
against on grounds that the arbitrator deems manifestly unreasonable, the
arbitrator may assess all Arbitration Costs against the non-prevailing Party
and may include in the award the prevailing Party's attorney's fees and
expenses in connection with any and all proceedings under this Section 7.6.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 NOTICE. All notices, requests, demands and other communications
required or permitted under this Agreement shall be deemed to have been duly
given and made if in writing upon being served either by personal delivery or by
telecopier to the party for whom it is intended or two business days after being
deposited, postage prepaid, certified or registered mail, return receipt
requested (or such form of mail as may be substituted therefor by postal
authorities), in the United States mail, bearing the address shown in this
Section 8.1 for, or such other address as may be designated in writing hereafter
by such Party:
If to Purchaser:
PHP Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopies: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopies: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sellers:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopies: (▇▇▇) ▇▇▇-▇▇▇▇
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8.2 ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits hereto
embody the entire agreement and understanding of the parties hereto with respect
to the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings relative to said subject matter.
8.3 ASSIGNMENT; BINDING AGREEMENT. This Agreement and various rights and
obligations arising hereunder shall inure to the benefit of and be binding upon
Purchaser, its successors and permitted assigns and the Sellers, their
respective executors, administrators, heirs, legal representatives, successors
and permitted assigns. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be transferred or assigned (by operation of law
or otherwise) by any of the parties hereto without the prior written consent of
the other party (which consent shall not be unreasonably withheld), except that
Purchaser shall have the right to transfer and assign its rights hereunder to
purchase the Shares and all other rights or benefits afforded to it by this
Agreement to any entity or entities which may become affiliated with Purchaser,
but no such transfer and assignment by Purchaser shall operate in any way to
modify, relieve or discharge any of the obligations of Purchaser contemplated by
this Agreement.
8.4 SEVERABILITY. If any provision of this Agreement shall be determined
to be contrary to law and unenforceable by any court of law, the remaining
provisions shall be severable and enforceable in accordance with their terms.
8.5 COUNTERPARTS. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
8.6 HEADINGS; INTERPRETATION. The article and section headings contained
in this Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of the Agreement. Both parties have
participated substantially in the negotiation and drafting of this Agreement and
each party hereby disclaims any defense or assertion in any litigation or
arbitration that any ambiguity herein should be construed against the draftsman.
8.7 EXPENSES AND TRANSACTIONS. The Sellers (and not EastWest) shall pay
all costs and expenses incurred on behalf of themselves or EastWest in
connection with this Agreement and the transactions contemplated hereby,
including, without limitation, the fees and expenses of counsel and accountants.
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8.8 WAIVER; CONSENT. This Agreement may not be changed, amended,
terminated, augmented, rescinded or discharged (other than in accordance with
its terms), in whole or in part, except by a writing executed by the parties
hereto. No waiver of any of the provisions or conditions of this Agreement or
any of the rights of a party hereto shall be effective or binding unless such
waiver shall be in writing and signed by the party claimed to have given or
consented thereto. Except to the extent that a party hereto may have otherwise
agreed in writing, no waiver by that party of any term, condition or other
provision of this Agreement, or any breach thereof by any other party shall be
deemed to be a waiver of any other term, condition or provision or any breach
thereof, or any subsequent breach of the same term, condition or provision by
the other party, nor shall any forbearance by the first party or parties to seek
a remedy for any noncompliance or breach by the other party be deemed to be a
waiver by the first party of its, her or their rights and remedies with respect
to such noncompliance or breach.
8.9 GOVERNING LAW. This Agreement shall in all respects be construed in
accordance with and governed by the laws of the State of Virginia.
8.10 EXHIBITS AND SCHEDULES. Each reference in this Agreement to a
Schedule or Exhibit, unless otherwise indicated, shall mean a Schedule or
Exhibit attached to this Agreement, which shall be deemed to be incorporated
into this Agreement by such reference.
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IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to
be executed as of the date first above written.
PURCHASER:
PHP HEALTHCARE CORPORATION
By:
------------------------------------------
------------------------------------------
Sellers:
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
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