STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement (the "Agreement") is made and entered into
this 7th day of April, 1995, by and among AMSERV HEALTHCARE INC., a Delaware
corporation (the "Company") and NORTH CENTRAL PERSONNEL, INC., an Ohio
corporation (the "Purchaser").
W I T N E S S E T H:
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WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser
desires to buy from the Company 426,794 shares of the Company's Class A
Redeemable Preferred Stock, $.01 par value per share (the "Preferred Stock");
WHEREAS, the Purchaser and the Company are entering into this Agreement to
provide for such purchase and sale and to establish various rights and
obligations in connection therewith;
WHEREAS, in connection herewith, the Company is also amending that certain
Asset Purchase Agreement dated as of June 10, 1994 (the "Asset Agreement") among
the Company, the Purchaser and AMSERV HEALTHCARE OF OHIO INC. (the "AMSERV
OHIO"), making an advance of $500,000 against an earnout in the Asset Agreement
(the "Earnout Advance") and immediately vesting all stock options held by a
shareholder of the Purchaser; and
WHEREAS, the Company is the guarantor of the AMSERV OHIO's obligations
under the Asset Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual and
dependent covenants hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. PURCHASE AND SALE OF SHARES.
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(a) Sale and Purchase:
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On the Closing Date (as hereinafter defined), in reliance upon the
representations, warranties and agreements of the parties, the Company shall
sell and deliver to the Purchaser, and the Purchaser shall purchase from Seller,
free and clear of all liens and encumbrances, an aggregate of 426,794 shares of
Preferred Stock (the "Shares").
Section 2. PURCHASE PRICE AND PAYMENT.
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(a) Payment. In consideration for the sale and delivery of the Shares by
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the Company to the Purchaser, and as the full purchase price hereunder, the
Purchaser agrees to surrender to the Company the $1,000,000 promissory note from
AMSERV HEALTHCARE OF OHIO INC. to the Purchaser, dated June 10, 1994, with the
remaining principal balance of $833,333 and all accrued but unpaid interest due
as of the date hereof (the "Note") . No payments shall be due and owing to the
Purchaser with respect to interest accrued and unpaid on the Note after the date
hereof.
Section 3. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
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COMPANY.
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As an inducement to the Purchaser to execute, deliver and perform its
obligations arising under or pursuant to this Agreement, the Company represents
and warrants to the Purchaser as follows:
(a) Organization; Standing; Power. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified to conduct business under the laws of the State of
Delaware. The Company has all requisite corporate power and authority to own,
lease and operate its properties, to carry on its business as now being
conducted and to execute, deliver and perform this Agreement. The Company is
qualified to do business in each state which the nature of its business
conducted make qualification necessary and where the failure to so qualify would
have a material adverse effect on the business of the Company as a whole.
(b) Authorization of the Company. The execution, delivery and performance
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of this Agreement and all other actions relating hereto by the Company have been
duly and validly authorized by the Board of Directors of the Company. This
Agreement to be signed by the Company constitutes validly executed and delivered
and binding obligations of the Company enforceable in accordance with its terms.
(c) Consents; Conflicts. Neither the execution and delivery of this
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Agreement nor the consummation by the Company of the transactions contemplated
hereby, nor compliance with any of the provisions hereof will: (i) conflict
with or result in a breach of the Certificate of Incorporation or Bylaws of the
Company; (ii) violate any statute, law, rule or regulation or any order, writ,
injunction or decree of any court or governmental authority; or (iii) violate or
conflict with or constitute a default under (or give rise to any right of
termination, cancellation or acceleration under) any material agreement or
writing of any nature to which the Company is a party or by which it or its
assets or properties may be bound. Except as otherwise described herein, no
consent, approval, authorization of, or designation, declaration or filing with
any governmental authority or other persons or entities on the part of the
Company is required in
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connection with the execution or delivery of this Agreement or the consummation
of the transactions contemplated hereby. Prior to the Closing, the Certificate
of Amendment to the Certificate of Incorporation in the Form of EXHIBIT A will
have been filed with the Secretary of State of the State of Delaware.
(d) The Shares. The Shares being issued on the date hereof have been duly
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authorized by all necessary corporate action on the part of the Company (no
consent or approval of stockholders being required by law), and such Shares,
upon Closing, will be validly issued, fully paid and nonassessable, and the
issuance of such Shares is not and will not be subject to preemptive rights of
any other stockholder of the Company.
(e) Litigation. There are no actions, suits, claims, investigations or
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legal or administrative or arbitration proceedings pending or, to the knowledge
of the Company, threatened against the Company or the transactions contemplated
hereby.
(f) Capitalization. The authorized capital of stock of the Corporation
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consists of (i) 15,000,000 shares of Common Stock, $.01 par value and 2,944,526
are issued and outstanding as of March 31, 1995, (ii) 426,794 shares of
Preferred Stock, all of which will be issued in connection with this Agreement
and (iii) 2,573,206 shares of undesignated preferred stock, none of which are
issued and outstanding. No class of capital stock is entitled to preemptive
rights.
(g) Brokers or Finders. No agent, broker, investment banker, or other firm
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or person, including any of the foregoing that is an Affiliate of the Company,
is or will be entitled to any broker's or finder's fee for any other
compensation or similar fee from the Company in connection with any of the
transactions contemplated by this Agreement that the Purchaser will be
responsible for.
(h) Registration Under Exchange Act. The Company has not registered the
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Preferred Stock as a class pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended. The Shares will not be registered as such class and such
registration is not required.
(i) Disclosure. No representation or warranty by the Company contained in
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this Agreement, and no statement contained in any certificate, schedule,
exhibit, list or other writing furnished to the Purchaser in connection with the
transactions contemplated by this Agreement, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. All copies of all
writings furnished to the Purchaser hereunder or in connection with the
transactions contemplated hereby are true and complete.
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Section 4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
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PURCHASER.
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As an inducement to the Company to execute, deliver and perform its
obligations arising under or pursuant to this Agreement, the Purchaser
represents and warrants to and agrees with the Company as follows:
(a) Organization; Standing; Power. The Purchaser is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Ohio and is qualified to conduct business under the laws of the State of Ohio.
The Purchaser has all requisite corporate power and authority to own, lease and
operate its properties, to carry on its business as now being conducted and to
execute, deliver and perform this Agreement.
(b) Authorization of the Purchaser. The execution, delivery and
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performance of this Agreement and all other actions relating hereto by the
Purchaser have been duly and validly authorized by the Board of Directors of the
Purchaser. This Agreement to be signed by the Purchaser constitutes validly
executed and delivered and binding obligations of the Purchaser enforceable in
accordance with its terms.
(c) Consents; Conflicts. Neither the execution nor the delivery of this
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Agreement nor the consummation of the transactions contemplated hereby, nor
compliance with any of the provisions hereof will (i) conflict with or result in
a breach of the Certificate of Incorporation or Bylaws of the Purchaser, or (ii)
violate any statute, law, rule or regulation or any order, writ, injunction or
decree of any court or governmental authority or (iii) violate or conflict with
or constitute a default under (or give rise to any right of termination,
cancellation or acceleration under) any material agreement or writing of any
nature to which the Purchaser is bound. Except as otherwise described herein,
no consent, approval or authorization of, or designation, declaration or filing
with any governmental authority or other persons or entities on the part of the
Purchaser is required in connection with the execution or delivery of this
Agreement or the consummation of the transactions contemplated hereby. The
Purchaser owns the Note free and clear of all security interests, liens,
pledges, claims, charges, escrows, encumbrances, options, rights of first
refusal, mortgages, indentures, security agreements or other agreements,
arrangements, contracts or commitments.
(d) Litigation. There are no actions, suits, claims, investigations or
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legal or administrative or arbitration proceedings pending or, to the knowledge
of the Purchaser, threatened against the Purchaser or the transactions
contemplated hereby.
(e) Acquisition for Investment. The Purchaser is acquiring the Shares for
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its own account for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof, and the Purchaser has no present
intention or plan to effect any distribution of the Shares.
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(f) Ownership of Securities. At the date hereof, except for the 20,000
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stock options and any open market purchases Diane Gurik may have made, the
Purchaser does not beneficially own, directly or indirectly (or have any option
or other right to acquire), any securities of the Company other than the Shares
being purchased by it hereunder.
(g) Brokers or Finders. No agent, broker, investment banker or other firm
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or Person, including any of the foregoing that is an Affiliate of the Purchaser,
is or will be entitled to any broker's or finder's fee or any other commission
or similar fee from the Purchaser in connection with any of the transactions
contemplated by this Agreement that the Company will be responsible for.
(h) Accredited Investor. The Purchaser is an "accredited investor" within
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the meaning of Rule 501 promulgated under the Securities Act of 1933, as
amended. The Purchaser has access to the information regarding the Company, has
access to management of the Company, has asked management of the Company the
questions the Purchaser has deemed advisable and has received responses in
satisfaction to those inquiries, all in order for the Purchaser to make the
decision to acquire the Shares.
(i) Disclosure. No representation or warranty by the Purchaser contained
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in this Agreement, and no statement contained in any certificate, schedule,
exhibit, list or other writing furnished to the Company in connection with the
transactions contemplated by this Agreement, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. All copies of all
writings furnished to the Company hereunder or in connection with the
transactions contemplated hereby are true and complete.
Section 5. COVENANTS.
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(a) Status of Stock. The Company will not in any report to stockholders,
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or to any governmental body having jurisdiction over the Company or otherwise
treat the Preferred Stock other than as equity capital unless required to do so
by a governmental body having jurisdiction over the accounts of the Company or
by a change in application or interpretation of or a change in generally
accepted accounting principles required as a result of action by an
authoritative accounting standards-setting body. The Company will not issue any
additional Preferred Stock, except for the Shares.
(b) Transfer of Shares. The Purchaser understands and agrees that no
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shares of Preferred Stock have been or will be registered under the Securities
Act of 1933, as amended (the "Securities Act") or the securities laws of any
state and that they may be sold or otherwise disposed of only in one or more
transactions registered under the Securities Act and, where applicable, such
laws or as to which an exemption from the registration requirements of the
Securities Act and, where applicable, such laws is available. The Purchaser
acknowledges that the Purchaser has no right to require the Company to register
the Shares or any shares of
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Preferred Stock. The Purchaser understands and agrees that each certificate
representing the Shares shall bear the following legends:
"ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
TAKES SUCH SECURITIES SUBJECT TO THE TERMS AND CONDITIONS OF THE
CERTIFICATE OF DESIGNATIONS OF THE COMPANY AND THE VOTING AGREEMENT
BETWEEN NORTH CENTRAL PERSONNEL, INC. AND THE COMPANY, DATED AS OF
APRIL 7, 1995, A COPY OF EACH IS ON FILE AT THE OFFICES OF THE
COMPANY."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS."
Section 6. CLOSING.
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(a) Closing Date. The consummation of the transaction contemplated by this
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Agreement (the "Closing") shall take place on April 7, 1995, at 10:00 a.m. at 70
Park Avenue West, Mansfield, Ohio 44902 or at such place and time as hereafter
may be agreed upon by the Purchaser and the Company (the "Closing Date").
(b) The Company's Deliveries. At Closing, the Company shall deliver, or
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cause to be delivered to the Purchaser, in exchange for the Purchaser's
deliveries delineated in Section 6(c) below, the following, all of which shall
be in form and substance satisfactory to the Purchaser and the Purchaser's
counsel:
(i) a stock certificate or stock certificates in definitive form
registered in the name of the Purchaser, representing the Shares being purchased
hereunder;
(ii) appropriate evidence of all necessary corporate action by the
Company in connection with the transactions contemplated hereby, including
without limitation certified copies of resolutions duly adopted by the Company's
Board of Directors approving the transactions contemplated by, and authorizing
the execution, delivery and performance by the Company of, this Agreement;
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(iii) a certificate from the Secretary of State of Delaware stating
the Company is currently in good standing under the laws of the State of
Delaware;
(iv) a copy of the Certificate of Designations in the form of
EXHIBIT A, certified by the Secretary of State of Delaware;
(v) a legal opinion from the Company's legal counsel in a form
acceptable to the Purchaser's legal counsel;
(vi) the Earnout Advance in immediately available funds;
(vii) evidence that the Stock Option Committee of the Company has
immediately vested Diane Gurik's stock options in the Company as of the Closing
Date;
(viii) an executed counterpart of the Amendment No. 2 to the Asset
Agreement in the form of EXHIBIT B; and
(ix) an executed counterpart of the Voting Agreement in the form of
EXHIBIT C.
(c) The Purchaser's Deliveries. At Closing, the Purchaser shall deliver,
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or cause to be delivered, in exchange for the deliveries delineated in Section
6(b) above, the following, all of which shall be in form and substance
satisfactory to the Company or the Company's counsel:
(i) the Note, surrendered for cancellation;
(ii) appropriate evidence of all necessary corporate action by the
Purchaser in connection with the transactions contemplated hereby, including
without limitation certified copies of resolutions duly adopted by the
Purchaser's Board of Directors approving the transactions contemplated by, and
authorizing the execution, delivery and performance by the Purchaser of this
Agreement;
(iii) an executed counterpart of the Amendment No. 2 to the Asset
Agreement in the form of EXHIBIT B;
(iv) an executed counterpart of the Voting Agreement in the form of
EXHIBIT C; and
(v) an executed copy of the Proxy (as defined in the Voting
Agreement).
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Section 7. ADDITIONAL CONDITIONS PRECEDENT OR SUBSEQUENT TO THE
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OBLIGATIONS OF THE PURCHASER.
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The obligations of the Purchaser to perform this Agreement are subject to
the satisfaction of the following conditions on or prior to the Closing Date,
unless waived in writing by the Purchaser, and the Company, shall use its best
efforts to cause such conditions to be fulfilled:
(a) Representations and Warranties. The representations and warranties of
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the Company in this Agreement or in any schedule, certificate or document
delivered in connection herewith shall be true and correct in all material
respects on and as of the date hereof and on and as of the Closing Date.
(b) Performance of Obligations of the Company. The Company shall have
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performed in all material respects all agreements and obligations required to be
performed by it under this Agreement prior to the Closing Date.
(c) No Litigation. No action, suit or other proceeding shall be pending
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before any court, tribunal or governmental authority seeking or threatening to
restrain or prohibit the consummation of the transactions contemplated by this
Agreement, or seeking to obtain substantial damages in respect thereof, or
involving a claim that consummation thereof would result in the violation of any
law, decree or regulation of any governmental authority having appropriate
jurisdiction.
Section 8. ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE
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COMPANY.
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The obligations of the Company to perform this Agreement are subject to the
satisfaction, on or prior to the Closing Date, of the following conditions,
unless waived in writing by the Company, and the Purchaser shall use its best
efforts to cause such conditions to be fulfilled.
(a) Representations and Warranties. The representations and warranties of
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the Purchaser in this Agreement or in any schedule, certificate or document
delivered pursuant hereto shall be true and correct in all material respects and
as of the date hereof and on and as of the Closing Date.
(b) Performance of Obligations of the Purchaser. The Purchaser shall have
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performed in all material respects all their respective obligations required to
be performed under this Agreement on or prior to the Closing Date, including,
without limitation, surrender of the Note.
(c) No Litigation. No action, suit or other proceeding shall be pending
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before any court, tribunal or governmental authority seeking or threatening to
restrain or prohibit the consummation of the transactions contemplated by this
Agreement, or seeking to obtain
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substantial damages in respect thereof, or involving a claim that consummation
thereof would result in the violation of any law, decree or regulation of any
governmental authority having appropriate jurisdiction.
Section 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
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All of representations and warranties made by any party to this Agreement
or pursuant hereto shall survive for a period of one year after the Closing.
The representations and warranties hereunder shall not be affected or diminished
by any investigation at any time by or on behalf of the party for whose benefit
such representations and warranties were made. All statements contained herein
or in any certificate, schedule list or other document delivered pursuant hereto
or in connection with the transactions contemplated hereby shall be deemed to be
representations and warranties.
Section 10. INDEMNIFICATION.
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(a) Indemnification of the Purchaser. Subject to the limitations
--------------------------------
hereinafter set forth, the Company and its successors and assigns shall
indemnify, hold harmless and save the Purchaser and its affiliates, officers and
directors (in their respective capacities as such) from, against, for and in
respect of:
(i) any and all damages, losses, settlement payments, obligations,
liabilities, claims, actions or causes of action, encumbrances and reasonable
costs and expenses suffered, sustained, incurred or required to be paid by any
indemnified party because of (A) the claims of any broker or finder engaged by
the Company; (B) the untruth, inaccuracy or breach of any representation,
warranty, agreement or covenant of the Company contained in or made in
connection with this Agreement; or (C) claims with respect to the issuance of
the Shares; and
(ii) all reasonable costs and expenses (including, without limitation,
attorney's fees, interest and penalties) incurred by any indemnified party in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to any of the matters indemnified against in this Section 10(a).
(b) Indemnification of the Company. Subject to the limitations hereinafter
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set forth, the Purchaser and its successors and assigns shall indemnify, hold
harmless and save the Company, and its affiliates, officers and directors (in
their respective capacities as such) from and against, for and in respect of:
(i) any and all damages, losses, settlement payments, obligations,
liabilities, claims, actions or causes of action, encumbrances and reasonable
costs and expenses suffered, sustained, incurred or required to be paid by any
indemnified party because of (A) the claims of any broker or finder engaged by
the Purchaser; or (B) the untruth, inaccuracy or breach of
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any representation, warranty, agreement or covenant of the Purchaser contained
in or made pursuant to this Agreement; and
(ii) all reasonable costs and expenses (including, without limitation,
attorney's fees, interest and penalties) incurred by any indemnified party in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to any of the matters indemnified against in this Section 10(b).
(c) Indemnification Procedures.
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(i) The indemnified party shall give prompt written notice to the
indemnifying party of any claim which might give rise to a claim by the
indemnified party against the indemnifying party based on the indemnity
agreements contained in Sections 10(a) and 10(b) hereof, stating the nature and
basis of said claims and the amounts thereof, to the extent known.
(ii) In the event any action, suit or proceeding is brought against
the indemnified party, with respect to which the indemnifying party may have
liability under the indemnity agreements contained in Sections 10(a) or 10(b)
hereof, the action, suit or proceeding shall, upon the written acknowledgment by
the indemnifying party that it is obligated to indemnify under such indemnity
agreement, be defended (including all proceedings on appeal or for review which
counsel for the indemnifying party shall deem appropriate) by the indemnifying
party. The indemnified party shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the
indemnified party's own expense unless (A) the employment of such counsel and
the payment of such fees and expenses both shall have been specifically
authorized by the indemnifying party in connection with the defense of such
action, suit or proceeding, or (B) such indemnified party shall have reasonably
concluded and specifically notified the indemnifying party that there may be
specific defenses available to it which are different from or additional to
those available to the indemnifying party or that such action, suit or
proceeding involves or could have an effect upon matters beyond the scope of the
indemnity agreements contained in Sections 10(a) and 10(b) hereof, in any of
which events the indemnifying party, to the extent made necessary by such
defenses, shall not have the right to direct the defense of such action, suit or
proceeding on behalf of the indemnified party. In such case only that portion
of such fees and expenses reasonably related to matters covered by the indemnity
agreements contained in Sections 10(a) or 10(b) hereof shall be borne by the
indemnifying party. The indemnified party shall be kept fully informed of such
action, suit or proceeding at all stages thereof whether or not it is so
represented. The indemnifying party shall make available to the indemnified
party and its attorneys and accountants, all books and records of the
indemnifying party relating to such proceeding or litigation and the parties
hereto agree to render to each other such assistance as they may reasonably
require of each other in order to ensure the proper and adequate defense of any
such action, suit or proceeding.
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(iii) The indemnified party shall not make any settlement of any
claims without the written consent of the indemnifying party, which consent
shall not be unreasonably withheld or delayed.
(d) Cumulative Remedies. Except as herein expressly provided, the remedies
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provided in this Section 10 hereof shall be cumulative and shall not preclude
assertion by any party of any other rights or the seeking of any other rights or
remedies against any other party hereto.
(e) Tax Benefits. Tax benefits, if any, received by the indemnified party
------------
shall be taken into account when calculating the amount of any liability of the
indemnifying party.
Section 13. MISCELLANEOUS.
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(a) Expenses; Transfer Taxes, Etc. No costs, fees or expenses (or any
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liability relating thereto) (including, for example, commission and brokerage
fees, attorney's fees or similar costs) incurred by the Company in connection
with this Agreement shall be borne by or charged to the Purchaser. No costs,
fees or expenses (or any liability relating thereto) (including, for example,
commission and brokerage fees, attorneys' fees or similar costs) incurred by the
Purchaser in connection with this Agreement shall be borne by or charged to the
Company.
(b) Parties in Interest. This Agreement shall be binding upon, inure to
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the benefit of, and be enforceable by the Company and its successors and assigns
and the Purchaser and its successors and assigns.
(c) Entire Agreement; Amendments. This Agreement contains the entire
----------------------------
understanding of the parties with respect to its subject matter and supersedes
all prior and contemporaneous agreements and understandings, inducements or
conditions, expressed or implied, oral or written, except as herein contained.
This Agreement may be amended only by a written instrument duly executed by the
parties.
(d) Headings. The section and subsection headings contained in this
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Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(e) Notices. All notices, claims, certificates, requests, demands and
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other communications (a "Communication") hereunder shall be in writing and shall
be deemed to have been duly given when (i) mailed by registered or certified
mail, postage prepaid, (ii) sent by reliable overnight courier, or (iii)
telecopied and followed immediately by copy mailed, addressed as follows:
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If to the Company, to:
AMSERV HEALTHCARE INC.
3252 Holiday Court, Suite 204
La Jolla, California 92037
Attn: Eugene J. Mora, Chairman
Telecopy No.: (619) 597-1001
with a copy to:
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attn: Jeffrey R. Patt, Esq.
Telecopy No.: (312) 902-1061
If to the Purchaser, to:
North Central Personnel, Inc.
713 South Main Street
Mansfield, Ohio 44907
Attn: Diane Gurik, President
with a copy to:
70 Park Avenue West
Mansfield, Ohio 44902
Attn: Bud Vetter, Esq.
Telecopy No.: (419) 525-3810
or to such other addresses as the person to whom notice is to be given may have
furnished to the other in writing in accordance herewith. A Communication given
by any other means shall be deemed duly given when actually received by the
addressees.
(f) Public Announcements. The Purchaser acknowledges and agrees that the
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Company will disseminate information and announcements relating to this
Agreement. The Purchaser agrees not to make any public announcement regarding
this Agreement without the prior written consent of the Company.
(g) Further Assurances. After the Closing Date, without further
------------------
consideration, the Company and the Purchaser shall execute and deliver such
further instruments and documents
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as either party shall reasonably request to consummate the transaction
contemplated by the Agreement.
(h) Waivers. Any party to this Agreement may, by written notice to the
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other party hereto, waive any provision of this Agreement. The waiver by any
party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent, same or different breach.
(i) Choice of Law and Performance. The Agreement shall be construed under
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and in accordance with the laws of the State of Delaware. If a party hereunder
shall default on any term under this Agreement, the other party may enforce this
Agreement by specific performance; or such party shall have any and all other
remedies available to it at law or in equity.
(j) Definitions. Where appropriate in the context used, the descriptive
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word "material" shall mean an aggregate of or amounting to an aggregate of
$5,000. As used herein the term "Affiliate" shall mean as to the Company or the
Purchaser, any person or entity who or which directly or indirectly, through one
or more intermediaries, controls or is controlled by or is under common control
with the Company or the Purchaser, as the case may be.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
THE COMPANY: THE PURCHASER:
AMSERV HEALTHCARE INC. NORTH CENTRAL PERSONNEL, INC.
- --------------------------------- ----------------------------------
By: Eugene Mora By: Diane Gurik
Its: Chairman Its: President
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