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EXHIBIT 3.27
RESTATED
CERTIFICATE OF INCORPORATION OF
EMERGENCY PHYSICIANS ASSOCIATES, INC.
TO: THE SECRETARY OF STATE LONNA R. HOOKS
State of New Jersey Secretary of State
Pursuant to the provisions of 14A:9-5, Corporations, General of the New
Jersey Statutes, the undersigned corporation hereby executes the following
Restated Certificate of Incorporation:
FIRST: The name of the corporation is
EMERGENCY PHYSICIANS ASSOCIATES, INC.
SECOND: The purpose or purposes for which the corporation is organized
are:
To engage in any activity within the purposes for which
corporations may be organized under the "New Jersey Business Corporation Act"
N.J.S. 14A: 1-1 et seq.,
THIRD: The aggregate number of shares which the corporation shall have
authority to issue is One thousand (1,000) shares without par value.
FOURTH: The address of the corporation's current registered office is
4300 Haddonfield Road, Pennsauken, NJ, 08109 and the name of the corporation's
current registered agent at such address is Sherman, Silverstein, Kohl, Rose &
Podolsky, A Professional Corporation.
FIFTH: The number of directors constituting the current Board of
Directors is one and the name and address of the director is as follows:
NAME ADDRESS
James E. George, M.D. P.O. Box 298, Woodbury, N.J. 08096
SIXTH: To the full extent that the laws of the State of New Jersey, as
they exist on the date hereof or as they may hereafter be amended, permit the
limitation or elimination of the liability of Directors or officers, no Director
or officer of the Corporation shall be personally liable to the Corporation or
its shareholders for damages for breach of any duty owed to the Corporation or
its shareholders. Neither the amendment or repeal of this article nor the
adoption of an amendment which is inconsistent with this Article shall apply to
or have any effect on the liability or alleged liability of any Director or
officer of the Corporation for or with respect to any act or omission of such
Director or officer occurring prior to such amendment, repeal or adoption.
SEVENTH: The duration of the corporation shall be perpetual.
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Dated this 20th day of June, 1996.
EMERGENCY PHYSICIANS ASSOCIATES, INC.
By: /s/ James E. George
----------------------------------------
James E. George, M.D., President
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CERTIFICATE REQUIRED TO BE FILED WITH THE
RESTATED CERTIFICATE OF INCORPORATION OF
EMERGENCY PHYSICIANS ASSOCIATES, P.A.
Pursuant to the provisions of 14A:9-5(5), Corporations, General of the
New Jersey Statutes, the undersigned corporation hereby executes the following
certificate:
FIRST: The name of the corporation is:
EMERGENCY PHYSICIANS ASSOCIATES, INC.
SECOND: The Restated Certificate of Incorporation was adopted on the
20th day of June, 1996 by unanimous written consent of the shareholders without
a meeting.
THIRD: this Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
Corporation by amending paragraphs FIRST, SECOND, THIRD, FOURTH and SIXTH to
read as follows:
"'FIRST: The name of the corporation is
EMERGENCY PHYSICIANS ASSOCIATES, INC.
'SECOND: The purpose or purposes for which the corporation is organized
are:
To engage in any activity within the purposes for which corporations
may be organized under the "New Jersey Business Corporation Act," N.J.S. 14A:1-1
et seq.,'
'FOURTH: The address of the corporation's current registered office is
4300 Haddonfield Road, Pennsauken, N.J. 08109 and the name of the corporation's
current registered agent at such address is Sherman, Silverstein, Kohl, Rose &
Podolsky, A Professional Corporation.
'FIFTH: The number of directors constituting the current Board of
Directors is one and the name and address of the director is as follows:
NAME ADDRESS
James E. George, M.D. P.O. Box 298, Woodbury, N.J. 08096
'SIXTH: To the full extent that the laws of the State of Now Jersey, as
they exist on the date hereof or as they may hereafter be amended, permit the
limitation or elimination of the liability of Directors or officers, no Director
or officer of the Corporation shall be personally liable to the Corporation or
its shareholders for damages for breach of any duty owed to the Corporation or
its shareholders. Neither the amendment or repeal of this article nor the
adoption of an amendment
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which is inconsistent with this Article shall apply to or have any effect on the
liability or alleged liability of any Director or officer of the Corporation for
or with respect to any act or omission of such Director or officer occurring
prior to such amendment, repeal or adoption."
Dated this 20th day of June, 1996, and the Restated Certificate of Incorporation
is to become effective upon the later of (i) 11:50 p.m. June 30, 1996 or (ii)
filing.
EMERGENCY PHYSICIANS ASSOCIATES, P.A.
By: /s/ James E. George
________________________________
James E. George, M.D., President
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CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION BY
EMERGENCY PHYSICIAN ASSOCIATES, INC.
To: The Secretary to State "FEDERAL EMPLOYER IDENTIFICATION NO."
State of New Jersey
Pursuant to the provision of Section 14A:9-2(4) and Section 14A:9-4(3),
Corporations, General, of the New Jersey Statutes, the undersigned corporation
executes the following Certificate of Amendment to its Certificate of
Incorporation:
1. The name of the corporation is:
Emergency Physician Associates, Inc.
2. The following amendment to the Certificate of Incorporation was
approved by the directors and thereafter duly adopted by the shareholders of the
corporation on the 1st day of July, 1996.
RESOLVED, That the Certificate of Incorporation be amended in part to
read as follows:
FIRST: The name of the corporation is:
EPA, Inc.
3. The number of shares outstanding at the time of adoption of the
amendment was 50. The total number of shares entitled to vote there was 50.
4. The number of shares voting for and against such amendment is as
follows:
Number of Shares Voting Number of Shares Voting
For Amendment Against Amendment
50 -0-
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Dated this 1st day of July, 1989.
EMERGENCY PHYSICIAN ASSOCIATES, INC.
By: /s/ James E. George
_________________________________
James E. George, M.D., President
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CERTIFICATE OF MERGER
OF
HOSPITAL HEALTHCARE SERVICES, INC.;
MEDECON, INC.; AND
MED/LAW PUBLISHERS, INC.
(Merged Corporations)
INTO
EMERGENCY PHYSICIANS ASSOCIATES, INC.
(Surviving corporation)
MERGER PURSUANT TO N.J.S.A. 14A:10-5.1
DATED: JUNE 20,1996
The undersigned Corporations, each being a New Jersey corporation and
each having adopted a Plan of Merger pursuant to N.J.S.A. 14A:10-5.1 for the
purpose of merging Hospital Healthcare Services, Inc.; Medecon, Inc.; and
Med/Law Publishers, Inc. (Merged Corporations) into Emergency Physicians
Associates, Inc., (Surviving Corporation), certify that;
1. The name of the Surviving Corporation is Emergency Physicians
Associates, Inc. The name of the Merged Corporations are Hospital Healthcare
Services, Inc.; Medecon, Inc.; and Med/Law Publishers, Inc.
2. The Plan of Merger, pursuant to which the merger will be
effectuated, is annexed hereto as Exhibit "A."
3. The Plan of Merger was unanimously opted by the respective Boards of
Directors of each of the Merged Corporations and the Surviving Corporation on
June 20, 1996.
4. The number of shares of common stock of each of the Corporations
entitled to vote on the Plan of Merger was as follows:
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CORPORATIONS NUMBER OF SHARES
Hospital Healthcare Services, Inc. 100
Medecon, Inc. 50
Med/Law Publishers, Inc. 500
Emergency Physicians Associates, Inc. 50
None of the Corporations have any other class or series of stock entitled to
vote on the Plan of Merger.
5. Approval of the Plan by the Shareholders of Hospital Healthcare
Services, Inc., Medecon, Inc., Med/Law Publishers, Inc., and Emergency
Physicians Associates, Inc. was given without a meeting by unanimous written
consent pursuant to N.J.S.A. 14A:5-6. No shares were voted against the Plan. The
number of shares voted in favor of the Plan and represented by the consent of
each of the Shareholders for the Merging Corporations was as follows:
SHARES IN FAVOR SHARES AGAINST
Hospital Healthcare Services, Inc. 100 0
Medecon. Inc. 50 0
Med/Law Publishers, Inc. 500 0
Emergency Physicians Associates, Inc. 50 0
6. The merger shall become effective upon the later of filing of the
Certificate of Merger with the New Jersey Secretary of State or 11:50 p.m. June
30, 1996.
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IN WITNESS WHEREOF, each of the undersigned Corporations has caused
this Certificate of Merger to be executed on its behalf by its duly authorized
Officer as of the date first written above.
SURVIVING CORPORATION:
EMERGENCY PHYSICIANS ASSOCIATES, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
MERGED CORPORATIONS:
HOSPITAL HEALTHCARE SERVICES, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
MEDECON, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
MED/LAW PUBLISHERS, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
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PLAN OF MERGER
OF
HOSPITAL HEALTHCARE SERVICES, P.A.;
MEDECON, INC.; AND
MED/LAW PUBLISHERS, INC.
(Merged Corporations)
INTO
EMERGENCY PHYSICIANS ASSOCIATES, P.A.
(Surviving Corporation)
DATED: JUNE 20,1996
1. The names of the Corporations proposing to merge are Hospital
Healthcare Services, P.A. ("Healthcare"); Medecon, Inc. ("Medecon"); Med/Law
Publishers, Inc. ("Med/Law") and Emergency Physicians Associates, P.A. ("EPA").
EPA will be the Surviving Corporation. Professional Corporations Healthcare, and
EPA shall each file restatements of their respective Certificates of
Incorporation to change their names to "Hospital Healthcare Services, Inc." and
to "Emergency Physicians Associates, Inc." respectively and to then each be
authorized to engage in any activity permitted by N.J.S. 14A:1-1 et seq. of the
New Jersey Business Corporation Act.
2. The terms and conditions of the proposed merger are that Healthcare,
Medecon and Med/Law shall then be merged with and into EPA on the effective date
of the merger. Other than the change of EPA from a Professional Association to a
Business Corporation, the Certificate of Incorporation, the By-Laws, the
Directors and the Officers of EPA, the surviving corporation, shall not be
changed by the merger.
3. The manner and basis of converting the shares of each Corporation
into shares, obligations or other securities of EPA are as follows:
(a) Each share of EPA shall remain unchanged.
(b) Each share of Medecon, and Med/Law Shan be cancelled on
the effective date of the merger.
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IN WITNESS WHEREOF, each of the parties hereto duly executed this Plan
of Merger as of the day and year first above written.
SURVIVING CORPORATION:
EMERGENCY PHYSICIANS ASSOCIATES, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
MERGED CORPORATIONS:
HOSPITAL HEALTHCARE SERVICES, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
MEDECON, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
MED/LAW PUBLISHERS, INC.
By: /s/ James E. George
____________________________________
James E. George, M.D., Sole Shareholder,
Sole Director and President
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CERTIFICATE OF MERGER
OF
EPA MERGER CORPORATION
(Merged Corporation)
INTO
EMERGENCY PHYSICIAN ASSOCIATES, INC.
(Surviving Corporation)
MERGER PURSUANT TO N.J.S.A. 14A:10-7
DATED: June 25, 1996
The undersigned corporations, EPA Merger Corporation, a Delaware
corporation and a wholly-owned subsidiary of MedPartners/Mullikin, Inc., also a
Delaware corporation, and Emergency Physician Associates, Inc., a New Jersey
corporation, each having adopted a Plan of Merger pursuant to N.J.S.A. 14A:10-7
for the purpose of Merging EPA Merger Corporation ("Merged Corporation") into
Emergency Physician Associates, Inc. ("Surviving Corporation"), certify that:
1. The name of the Surviving Corporation is Emergency Physician
Associates, Inc. The name of the Merged Corporation is EPA Merger Corporation.
2. The Plan and Agreement of Merger ("Plan of Merger"), pursuant to
which the merger will be effectuated, is annexed hereto as Exhibit "A", the
terms and provisions of which are incorporated hereby by reference and made a
part hereof.
3. The Plan of Merger was unanimously adopted by the respective Boards
of Directors of each of the Merged Corporation and the Surviving Corporation on
May 28, 1996.
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4. The number of shares of common stock of each of the Corporations
entitled to vote on the Plan of Merger was as follows:
Corporations Number of Shares
EPA Merger Corporation 1,000
Emergency Physicians Associates, Inc. 50
None of the Corporations have any other class or series of stock entitled to
vote on the Plan of Merger.
5. Approval of the Plan by the Shareholders of Emergency Physicians
Associates, Inc., was given without a meeting by unanimous written consent
pursuant to N.J.S.A 14A:5-6. Approval of the Plan by the Shareholders of EPA
Merger Corporation was given without a meeting by unanimous written consent
pursuant to the applicable provisions of the Delaware General Business
Corporation Law (Section 141(f)). No shares were voted against the Plan. The
number of shares voted in favor of the Plan and represented by the consent of
each of the Shareholders for the Merging Corporations was as follows:
Shares In Favor Shares Against
EPA Merger Corporation 1,000 0
Emergency Physicians Associates, Inc. 50 0
6. The merger shall become, effective upon the later of the filing of
the Certificate of Merger with the New Jersey Secretary of State or 11:59 p.m.,
June 30, 1996.
7. The applicable provisions of the laws with respect to this merger of
the state of Delaware, the state of incorporation of EPA Merger Corporation,
will, upon compliance with the filing and recording requirements contained
therein, have been complied with.
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IN WITNESS WHEREOF, each of the undersigned Corporations has caused
this Certificate of Merger to be executed on its behalf of its authorized
officer as of the date first written above.
SURVIVING CORPORATION:
Emergency Physician Associates, Inc.
By: /s/ James E. George
____________________________________
James E. George, M.D.,
Sole Shareholder, Sole Director and President
MERGED CORPORATION:
EPA Merger Corporation
By: /s/ Harold O. Knight, Jr.
____________________________________
Its: Vice President & Treasurer
______________________________
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PLAN AND AGREEMENT OF MERGER
Dated as of May 28, 1996
By and Among
MedPartners/Mullikin, Inc.
EPA Merger Corporation,
Hospital Healthcare Services, P.A.,
Med/Law Publishers, Inc.,
Medecon, Inc.
and
Emergency Physician Associates, P.A.
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TABLE OF CONTENTS
Page
Parties ......................................................................................................... 1
Recitals......................................................................................................... 1
Section 1. The Merger .................................................................................... 2
1.1 The Merger..................................................................................... 2
1.2 The Closing.................................................................................... 3
1.3 Effective Time................................................................................. 3
1.4 Effect of the Merger........................................................................... 4
Section 2. Effect of the Merger on the Capital Stock of the Constituent Corporations;
Exchange of Certificates....................................................................... 4
2.1 Effect on Capital Stock........................................................................ 4
2.2 Exchange of Certificates....................................................................... 5
2.3 Articles of Incorporation of Surviving Corporation............................................. 6
2.4 By-laws of the Surviving Corporation........................................................... 6
2.5 Directors and Officers of the Surviving Corporation............................................ 6
2.6 Assets, Liabilities, Reserves and Accounts..................................................... 7
2.7 Corporate Acts of the Subsidiary............................................................... 7
Section 3. Representations and Warranties of EPA.......................................................... 7
3.1 Organization, Existence and Good Standing...................................................... 7
3.2 EPA Capital Stock.............................................................................. 8
3.3 Subsidiaries................................................................................... 8
3.4 Foreign Qualifications......................................................................... 8
3.5 Power and Authority............................................................................ 9
3.6 EPA Financial Information...................................................................... 9
3.7 Contracts, etc................................................................................. 10
3.8 Properties and Assets.......................................................................... 10
3.9 Legal Proceedings.............................................................................. 11
3.10 Subsequent Events.............................................................................. 11
3.11 Accounts Receivable............................................................................ 12
3.12 Tax Returns.................................................................................... 13
3.13 Employee Benefit Plans; Employment Matters..................................................... 13
3.14 Compliance with Laws in General................................................................ 14
3.15 Regulatory Approvals .......................................................................... 14
3.16 Commissions and Fees........................................................................... 15
3.17 Retirement or Re-Acquisition of MedPartners/Mullikin Common Stock.............................. 15
3.18 Disposition of Assets of Surviving Corporation................................................. 15
3.19 Vote Required.................................................................................. 16
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3.20 EPA Shareholder Investment Qualification ...................................................... 16
3.21 No Untrue Representations ..................................................................... 16
Section 4. Representations and Warranties of the Subsidiary............................................... 16
4.1 Organization, Existence and Capital Stock ..................................................... 16
4.2 Power and Authority............................................................................ 17
4.3 Commissions and Fees........................................................................... 17
4.4 Legal Proceedings.............................................................................. 17
4.5 No Subsidiaries................................................................................ 18
4.6 No Contracts or Liabilities ................................................................... 18
Section 5. Representations and Warranties of MedPartners/Mullikin......................................... 18
5.1 Organization, Existence and Good Standing...................................................... 18
5.2 MedPartners/Mullikin Capitalization............................................................ 18
5.3 MedPartners/Mullikin Common Stock.............................................................. 19
5.4 Subsidiaries and Affiliated Entities........................................................... 19
5.5 Organization, Existence and Good Standing of MedPartners/Mullikin
Subsidiaries and Other MedPartners/Mullikin Entities........................................... 20
5.6 Foreign Qualifications......................................................................... 21
5.7 Subsidiary Common Stock........................................................................ 21
5.9 Power and Authority ........................................................................... 21
5.9 MedPartners/Mullikin Public Information........................................................ 22
5.10 Legal Proceedings.............................................................................. 23
5.11 Subsequent Events ..................................................................... 23
5.12 Compliance with Laws in General................................................................ 24
5.13 Regulatory Approvals........................................................................... 25
5.14 Investment Intent.............................................................................. 25
5.15 Commissions and Fees........................................................................... 26
5.6 Retirement or Re-Acquisition of MedPartners/Mullikin Common Stock............................. 26
5.18 Registration Rights............................................................................ 26
5.19 No Untrue Representations...................................................................... 26
Section 6. Access to Information and Documents............................................................ 27
6.1 Access to Information.......................................................................... 27
6.2 Return of Records.............................................................................. 27
6.3 Effect of Access............................................................................... 27
Section 7. Covenants...................................................................................... 28
7.1 Preservation of Business....................................................................... 28
7.2 Material Transactions.......................................................................... 28
7.3 Approval of EPA Shareholder.................................................................... 30
7.4 Securities Matters............................................................................. 30
7.5 Exemption from State Takeover Laws............................................................. 31
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7.6 Public Disclosures............................................................................. 32
7.7 Resignation of EPA Directors................................................................... 32
7.8 Notice of Subsequent Events.................................................................... 32
7.9 No Solicitations............................................................................... 32
7.10 Other Actions.................................................................................. 33
7.11 Accounting Methods ............................................................................ 34
7.12 Pooling and Tax-Free Reorganization Treatment ................................................. 34
7.13 Affiliate and Pooling Agreements............................................................... 34
7.14 Cooperation.................................................................................... 34
7.15 Publication of Combined Results ............................................................... 35
7.16 Post Closing Matters ......................................................................... 35
7.17 Certain Employee Benefits ..................................................................... 36
7.18 MedPartners/Mullikin Common Stock ............................................................ 36
7.19 Payment of Certain Obligations of EPA.......................................................... 36
Section 8. Termination, Amendment and Waiver............................................................ 36
8.1 Termination.................................................................................... 36
8.2 Effect of Termination ........................................................................ 38
8.3 Amendment...................................................................................... 39
8.4 Extension; Waiver ............................................................................ 39
8.5 Procedure for Termination, Amendment, Extension or Waiver .................................... 39
8.6 Expenses....................................................................................... 39
Section 9. Conditions to Closing........................................................................ 40
9.1 Mutual Conditions ............................................................................. 40
9.2 Conditions to Obligations of MedPartners/Mullikin and the Subsidiary........................... 41
9.3 Conditions to Obligations of EPA .............................................................. 44
Section 10. Miscellaneous ................................................................................. 46
10.1 Nonsurvival of Representations and Warranties ................................................ 46
10.2 Notices........................................................................................ 46
10.3 Further Assurances ............................................................................ 47
10.4 Indemnification................................................................................ 47
10.5 Governing Law ................................................................................ 48
10.6 "Including".................................................................................... 48
10.7 "Knowledge"................................................................................... 48
10.8 "Material adverse change" or "material adverse effect"......................................... 48
10.9 "Hazardous Materials" ......................................................................... 49
10.10 Environmental Laws............................................................................. 49
10.11 Captions....................................................................................... 49
10.12 Integration of Exhibits ....................................................................... 50
10.13 Entire Agreement............................................................................... 50
10.14 Counterparts................................................................................... 50
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10.15 Binding Effect................................................................................. 50
10.16 No Rule of Construction........................................................................ 50
Testimonium............................................................................................. 52
Signatures.............................................................................................. 52
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PLAN AND AGREEMENT OF MERGER
PLAN AND AGREEMENT OF MERGER ("Plan of Merger"), made and entered into
as of the 28th day of May, 1996, by and among MEDPARTNERS/MULLIKIN, INC., a
Delaware corporation ("MedPartners/Mullikin"), EPA MERGER CORPORATION, a
Delaware corporation (the "Subsidiary"), HOSPITAL HEALTHCARE SERVICES, P.A., a
New Jersey professional corporation ("Hospital Healthcare"). MED/LAW PUBLISHERS,
INC., a New Jersey corporation ("Med/Law"), MEDECON, INC., a New Jersey
corporation ("Medecon") and EMERGENCY PHYSICIAN ASSOCIATES, P.A., a New Jersey
professional corporation ("EPA") (the Subsidiary and EPA being sometimes
collectively referred to herein as the "Constituent Corporations").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of MedPartners/Mullikin,
the Subsidiary and EPA have approved the merger of the Subsidiary with and into
EPA (the "Merger"), upon the terms and conditions set forth in this Plan of
Merger, whereby each share of Common Stock, no par value, of EPA (the "EPA
Common Stock"), not owned directly or indirectly by EPA, will be converted into
the right to receive the Merger Consideration (as herein defined) (the EPA
Common Stock may be sometimes hereinafter referred to as the "EPA Shares");
WHEREAS, each of MedPartners/Mullikin, the Subsidiary and EPA desire to
make certain representations, warranties, covenants and agreements in connection
with the Merger and also to prescribe various conditions to the Merger;
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization under the provisions of Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code");
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WHEREAS, for accounting purposes, it is intended that the Merger shall
be accounted for as a "pooling of interests"; and
WHEREAS, it has been agreed between the parties that the Merger will be
carried out as a private placement of the Common Stock, par value $.001 per
share, of MedPartners/ Mullikin (the "MedPartners/Mullikin Common Stock") to the
sole shareholder of EPA.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and agreements contained herein, the parties hereto do hereby agree as
follows:
Section 1. The Merger.
1.1 The Merger. (a) Upon the terms and conditions set forth in this
Plan of Merger, and in accordance with the General Corporation Law of the State
of Delaware (the"DGCL") and the New Jersey Business Corporation Act (the
"NJBCA"), the Subsidiary shall be merged into EPA at the Effective Time (as
defined in Section 1.3). Following the Effective Time, the separate corporate
existence of the Subsidiary shall cease and EPA shall continue as the surviving
corporation (the "Surviving Corporation") as a business corporation incorporated
under the laws of the State of New Jersey under the name Emergency Physician
Associates, Inc. and shall succeed to and assume all the rights and obligations
of the Subsidiary and EPA in accordance with the DGCL and the NJBCA.
(b) On or immediately prior to the Closing Date, Hospital Healthcare,
Med/Law and Medecon will be merged with and into EPA so that EPA, as the
surviving corporation of such serial merger transaction, shall succeed to all of
the "assets and liabilities of such corporations pursuant to applicable law. It
is understood and agreed, that to the extent relevant and/or necessary to the
consummation of the Merger provided for in this Plan of Merger, all of the
representations and warranties and covenants of EPA shall apply also to each
such merged corporations as though named therein and the EPA Disclosure Schedule
shall provide the information called for therein for each of the three merged
corporations in addition to that required for EPA. At the Closing (as herein
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defined), such opinions, certificates and other documents required to be
delivered by EPA shall also be delivered by each of the other three merged
corporations.
1.2 The Closing. The closing of the Merger (the "Closing") will take
place at 10:00 a.m. Eastern Time on a date to be specified by the parties (the
"Closing Date"), which (subject to satisfaction or waiver of the conditions set
forth in Sections 9.2 and 9.3) shall be no later than the second business day
after satisfaction of the conditions set forth in Section 9.1 (other than
Section 9.1(a)), but in no event later than September 30, 1996, at the offices
of Sherman, Silverstein, Kohl, Rose & Podolsky, Pennsauken, New Jersey, unless
another date or place is agreed to in writing by the parties hereto.
1.3 Effective Time. (a) Subject to the provisions of this Plan of
Merger, EPA and the Subsidiary shall file a Certificate of Merger (the "New
Jersey Certificate of Merger") in accordance with the relevant provisions of the
NJBCA and EPA shall file a Certificate of Merger (the "Delaware Certificate of
Merger") executed by EPA in accordance with the relevant provisions of the DGCL
and shall make all other filings or recordings required under the DGCL and the
NJBCA and as soon as practicable on or after the Closing Date. The Merger shall
become effective at such time as the Delaware Certificate of Merger is duly
filed with the Secretary of State of the State of Delaware and the New Jersey
Certificate of Merger is duly filed with the Secretary of State of New Jersey,
or at such other time as the Subsidiary and EPA shall agree should be specified
in the Delaware Certificate of Merger and the New Jersey Certificate of Merger
(the "Effective Time").
(b) On the Closing Date, and immediately prior to the Effective Time,
each of Med/Law, Medecon, and Hospital Healthcare, each a New Jersey
corporation, shall be merged with and into EPA, the Surviving Corporation,
pursuant to the filing by such respective corporations and EPA of Certificates
of Merger in accordance with the relevant provisions of the NJBCA, so that the
Surviving Corporation shall succeed to all of the business assets and
liabilities of each of EPA, Med/Law, Medecon, and Hospital Healthcare.
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1.4 Effect of the Merger. The Merger shall have the effects set forth
in Section 259 of 259 of the DGCL and Section 14A:10-6 of the NJBCA.
Section 2. Effect of the Merger on the Capital Stock of the Constituent
Corporations; Exchange of Certificates.
2.1 Effect on Capital Stock. As of the Effective Time, by virtue of the
Merger and without any action on the part of any holder of shares of EPA Common
Stock or any shares of capital stock of the Subsidiary:
(a) Subsidiary Common Stock. Each share of capital stock of the
Subsidiary issued and outstanding immediately prior to the Effective Time of the
Merger shall be converted into one issued and outstanding and nonassessable
share of Common Stock of the Surviving Corporation.
(b) Cancellation of Treasury Stock. Each share of EPA Common Stock that
is owned by EPA shall automatically be canceled and retired and shall cease to
exist, and none of MedPartners/Mullikin Common Stock; cash or other
consideration shall be delivered in exchange therefor.
(c) Conversion of EPA Shares. In the Merger, all of the EPA Shares
shall be converted into the right to receive that number of shares of
MedPartners/Mullikin Common Stock equal to the Merger Consideration (as defined
herein). All such shares of MedPartners/Mullikin Common Stock shall be fully
paid and nonassessable and are hereinafter sometimes referred to as the
"MedPartners/Mullikin Shares". Upon such conversion, all such EPA Shares shall
be canceled and cease to exist, and each holder thereof shall cease to have any
right with respect thereto other than the right to receive MedPartners/Mullikin
Share issued in exchange therefor on the terms provided herein.
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"Merger Consideration" means that number of MedPartners/Mullikin Shares
(rounded to the nearest whole share) equal to $27,750,000 divided by the "Base
Period Trading Price".
"Base Period Trading Price" shall mean the average of the last reported
sale prices per share of the MedPartners/Mullikin Common Stock for the 15
consecutive trading days on which such shares are actually traded on The New
York Stock Exchange, Inc. (the "NYSE") ending at the close of trading and the
second trading day immediately preceding the earlier of June 28, 1996 or the
Closing Date.
(d) Anti-Dilution Provisions. If after the date hereof and prior to the
Effective Time MedPartners/Mullikin shall have declared a stock split (including
a reverse split) of MedPartners/Mullikin Common Stock or a dividend payable in
MedPartners/Mullikin Common Stock, or any other distribution of securities or
dividend (in cash or otherwise) to holders of MedPartners/Mullikin Common Stock
with respect to their MedPartners/Mullikin Common Stock (including without
limitation such a distribution or dividend made in connection with a
recapitalization, reclassification, merger, consolidation, reorganization or
similar transaction) then the Merger Consideration shall be appropriately
adjusted to reflect such stock split, dividend or other distribution of
securities.
2.2 Exchange of Certificates. (a) Exchange Agent. The outstanding EPA
Shares shall be exchanged at the Closing. Upon surrender of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding EPA Shares (the "Certificates") whose shares were converted into the
right to receive the Merger Consideration pursuant to Section 2.1 for
cancellation to MedPartners/Mullikin and such other documents as may reasonably
be required by MedPartners/Mullikin, the holder of such Certificate shall be
entitled to receive in exchange therefor a certificate representing that number
of whole shares of MedPartners/Mullikin Common Stock which such holder has the
right to receive pursuant to the provisions of this Section 2, and the
Certificate so surrendered shall forthwith be canceled.
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(b) No Further Ownership Rights in EPA Shares. All shares of
MedPartners/Mullikin Common Stock issued upon the surrender for exchange of
Certificates in accordance with the terms of this Section 2 (including any cash
paid pursuant to Section 2.2(c) shall be deemed to have been issued (and paid)
in full satisfaction of all rights pertaining to the EPA Shares theretofore
represented by such Certificates.
(c) No Fractional Shares. No certificates or scrip representing
fractional shares of MedPartners/Mullikin Common Stock shall be issued upon the
surrender for exchange of Certificates, and such fractional share interests will
not entitle the owner thereof to vote or to any rights of a stockholder of
MedPartners/Mullikin. Notwithstanding any other provision of this Plan of
Merger, each holder of shares or EPA Common Stock exchanged pursuant to the
Merger who would otherwise have been entitled to receive a fraction of a share
of MedPartners/Mullikin Common Stock (after taking into account all Certificates
delivered by such holder) shall receive, in lieu thereof, cash (without
interest) in an amount equal to such fractional part of a share of
MedPartners/Mullikin Common Stock multiplied by the Base Period Trading Price.
2.3 Articles of Incorporation of Surviving Corporation. The Articles of
Incorporation of EPA, effective immediately following the Effective Time, and
amended in form satisfactory to MedPartners/Mullikin and its counsel, shall be
the Articles of Incorporation of the Surviving Corporation from and after the
Effective Time and until thereafter amended as provided by law.
2.4 By-Laws of the Surviving Corporation. The By-laws of EPA shall be
the By-laws of the Surviving Corporation from and after the Effective Time, and
amended in form satisfactory to MedPartners/Mullikin, and its counsel, and until
thereafter altered, amended or repealed in accordance with the DGCL, the
Articles of Incorporation of the Surviving Corporation and the said By-laws.
2.5 Directors and Officers of the Surviving Corporation. The directors
and officers of the Subsidiary immediately prior to the Effective Time shall be
the directors and officers of the
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Surviving Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation.
2.6 Assets, Liabilities, Reserves and Accounts. At the Effective Time,
the assets, liabilities, reserves and accounts of each of the Subsidiary and EPA
shall be taken up on the books of the Surviving Corporation at the amounts at
which they respectively shall be carried on the books of said corporations
immediately prior to the Effective Time, except as otherwise set forth in this
Plan of Merger and subject to such adjustments, or elimination of intercompany
items, as may be appropriate in giving effect to the Merger in accordance with
generally accepted accounting principles.
2.7 Corporate Acts of the Subsidiary. All corporate acts, plans,
policies, approvals and authorization of the Subsidiary, its stockholder, its
Board of Directors, committees elected or appointed by the Board of Directors,
and all officers and agents, valid immediately prior to the Effective Time,
shall be those of the Surviving Corporation and shall be as effective and
binding thereon as they were with respect to the Subsidiary to the extent not
inconsistent with the terms of this Plan of Merger. The Surviving Corporation
shall continue to employ, as employees-at-will, all persons (other than persons
who have employment agreements, physicians and such other personnel as agreed
among the parties should be independent contractors) who are employees of EPA on
the Closing Date.
Section 3. Representations and Warranties of EPA.
Subject to and consistent with Section 1.1(b), EPA hereby represents
and warrants to MedPartners/Mullikin and the Subsidiary as follows:
3.1 Organization, Existence and Good Standing. EPA is a New Jersey
professional corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey. EPA has all necessary corporate power
to own its properties and assets and to carry on its
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business as presently conducted. EPA does not, and has not within the two years
immediately preceding the date of this Plan of Merger owned, directly or
indirectly, any shares of MedPartners/Mullikin Common Stock or Common Stock of
the Subsidiary.
3.2 EPA Capital Stock. The authorized capital stock of EPA, Medecon,
Med/Law and Hospital Healthcare is as set forth on Exhibit 3.2 to the EPA
Disclosure Schedule. There are 50 shares of Common Stock of EPA, no par value,
issued and outstanding as of the date of this Plan of Merger and no shares are
held in treasury. All of the issued and outstanding EPA Shares are duly and
validly issued, fully paid and nonassessable. Except as set forth in Exhibit 3.2
to the Disclosure Schedule delivered to MedPartners/Mullikin and the Subsidiary
by EPA at the time of the execution and delivery of this Plan of Merger (the
"EPA Disclosure Schedule"), there are no options, warrants, or similar rights
granted by EPA or any other agreements to which EPA is a party providing for the
issuance or sale by it of any additional securities which would remain in effect
after the Effective Time. There is no liability for dividends declared or
accumulated but unpaid with respect to any of the EPA Shares. Except as set
forth in Exhibit 3.2 to the EPA Disclosure Schedule, EPA has not made any
distributions to any holders of EPA Shares or participated in or effected any
issuance, exchange or retirement of EPA Shares, or otherwise changed the equity
interests of holders of EPA Shares in contemplation of effecting the Merger
within the two years immediately preceding the date of this Plan of Merger. Any
EPA Shares that EPA has re-acquired during the two years immediately preceding
the date of this Plan of Merger have been so re-acquired only for purposes other
than "business combinations", as such term is defined in Accounting Principles
Board Opinion No. 16, as amended ("Business Combinations").
3.3 Subsidiaries. Except as set forth on Exhibit 3.3 to the EPA
Disclosure Schedule, EPA does not own stock in and does not control, directly or
indirectly, any other corporation, association or business organization. Except
as set forth on Exhibit 3.3 to the EPA Disclosure Schedule, EPA does not own an
equity interest in, nor does such entity control, directly or indirectly, any
other joint venture or partnership.
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3.4 Foreign Qualifications. EPA is qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
nature or character of the property owned, leased or operated by it or the
nature of the business transacted by it makes such qualification necessary,
except where the failure to so qualify would not have a material adverse effect
on its business or operations.
3.5 Power and Authority. Subject to the satisfaction of the conditions
precedent set forth herein, EPA has the corporate power to execute, deliver and
perform this Plan of Merger and all agreements and other documents executed and
delivered or to be executed and delivered by it pursuant to this Plan of Merger,
and, subject to the satisfaction of the conditions precedent set forth herein
has taken all action required by its Certificate of Incorporation, By-laws or
otherwise, to authorize the execution, delivery and performance of this Plan of
Merger and such related documents. Except as set forth in Exhibit 3.5 to the EPA
Disclosure Schedule, the execution and delivery of this Plan of Merger does not
and, subject to the receipt of required stockholder and regulatory approvals and
any other required third-party consents or approvals, the consummation of the
Merger will not violate any provisions of the Certificate of Incorporation or
Regulations of EPA or any provisions of, or result in the acceleration of any
obligation under, any mortgage, lien, lease, agreement, instrument, order,
arbitration award, judgment or decree, to which EPA is a party, or by which it
is bound, or violate any restrictions of any kind to which it is subject which,
if violated or accelerated would have a material adverse effect on EPA. The
execution and delivery of this Plan of Merger has been approved by the Board of
Directors of EPA.
3.6 EPA Financial Information. EPA has heretofore furnished
MedPartners/Mullikin with a true and complete copy of the December 31, 1995
financial statements of Emergency Physician Associates, P.A., and affiliates and
Med/Law Publishers, Inc. The financial statements, together with the notes
thereto reflect all known liabilities of EPA and affiliates, fixed or
contingent, required to be stated therein, and present fairly the financial
condition of EPA and its affiliates at said dates and the results of operations
and cash flows of EPA for the periods then ended. The
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balance sheet of EPA and its affiliates at December 31, 1995, is herein
sometimes referred to as the "EPA Balance Sheet".
3.7 Contracts, etc. (a) To EPA's knowledge, all material contracts,
leases, agreements and arrangements to which EPA is a party are legally valid
and binding in accordance with their terms and in full force and effect and EPA
has provided MedPartners/Mullikin and the Subsidiaries with copies of all such
documents. To the knowledge of EPA, all parties to such contracts, leases,
agreements and arrangements have complied with the provisions of such contracts,
leases, agreements and arrangements, and, to the knowledge of EPA, no party is
in default thereunder and no event has occurred which, but for the passage of
time or the giving of notice or both, would constitute a default thereunder,
except, in each case, where the invalidity of the lease, contract, agreement or
arrangement or the default or breach thereunder or thereafter would not,
individually or in the aggregate, have a material adverse effect on EPA. Except
as set forth in Exhibit 3.7 to the EPA Disclosure Schedule, EPA has received no
written or oral notice that any of EPA's material agreements are to be
terminated or are subject to non-renewal, nor does EPA have any knowledge that
any such termination or non-renewal will occur.
(b) Except as set forth in Exhibit 3.7 to the EPA Disclosure Schedule,
no hospital staffing contract or agreement to which EPA is a party will, by its
terms, terminate as a result of the transactions contemplated hereby or require
any consent from any obligor thereto in order to remain in full force and effect
immediately after the Effective Time, except for contracts or agreements which,
if terminated, would not have a material adverse effect on EPA.
(c) Except as set forth in Exhibit 3.7 to the EPA Disclosure Schedule,
EPA has not granted any right of first refusal or similar right in favor of any
third party with respect to any material portion of its properties or assets
(excluding liens described in Section 3.8) or entered into any non-competition
agreement or similar agreement restricting its ability to engage in any business
in any location.
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3.8 Properties and Assets. EPA owns or leases all of the real and
personal property included in the EPA Balance Sheet (except assets recorded
under capital law obligations and such property as has been disposed of during
the ordinary course of EPA's business since the date of the EPA Balance Sheet),
free and clear of any liens, claims, charges, exceptions or encumbrances, except
for those (i) if any, which in the aggregate are not material and which do not
materially affect continued use of such property, or (ii) which are set forth in
Exhibit 3.8 to the EPA Disclosure Schedule.
3.9 Legal Proceedings. Except as listed in Exhibit 3.9 to the EPA
Disclosure Schedule, there are no actions, suits or proceedings pending or, to
the knowledge of EPA, threatened against EPA, at law or in equity, relating to
or affecting EPA, including the Merger. EPA does not know or have any reasonable
grounds to know of any justification for any such action, suit or proceeding.
3.10 Subsequent Events. Except as set forth in Exhibit 3.10 to the EPA
Disclosure Schedule or as contemplated by this Plan of Merger, EPA has not,
since the date of the EPA Balance Sheet:
(a) Incurred any material adverse change.
(b) Discharged or satisfied any material lien or encumbrance,
or paid or satisfied any material obligation or liability (absolute,
accrued, contingent or otherwise) other than (i) liabilities shown or
reflected on the EPA Balance Sheet or (ii) liabilities incurred since
the date or the EPA Balance Sheet in the ordinary course of business,
which discharge or satisfaction would not have a material adverse
effect on EPA.
(c) Increased or established any reserve for taxes or any
other liability on its books or otherwise provided therefor which would
have a material adverse effect
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on EPA, except as may have been required due to income or operations of
EPA since the date of the EPA Balance Sheet.
(d) Mortgaged, pledged or subjected to any lien, charge or
other encumbrance any of the assets, tangible or intangible, which
assets are material to the business or financial condition of EPA.
(e) Sold or transferred any of the assets material to the
consolidated business of EPA, canceled any material debts or claims or
waived any material rights, except in its ordinary course of business.
(f) Granted any general or uniform increase in the rates of
pay of employees or any material increase in salary payable or to
become payable by EPA to any officer or employee, consultant or agent
(other than normal merit increases), or by means of any bonus or
pension plan, contract or other commitment, increased in a material
respect the compensation of any officer, employee, consultant or agent.
(g) Except for this Plan of Merger and any other agreement
executed and delivered pursuant to this Plan of Merger, entered into
any material transaction other than in the ordinary course of business
or permitted under other Sections of this Plan of Merger.
(h) Issued any stock, bonds or other securities or any options
or rights to purchase any of its securities.
3.11 Accounts Receivable. Since the date of the EPA Balance Sheet, EPA
has not changed any principle or practice with respect to the recordation of
accounts receivable or the calculation of reserves therefor, or any material
collection, discount or write-off policy or procedure. EPA is in compliance in
all material respects with the terms and conditions of all third-party payor
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arrangements relating to its accounts receivable, except to the extent that such
noncompliance would not have a material adverse effect on EPA.
3.12 Tax Returns. EPA has filed all tax returns required to be filed by
it or requests for extensions to file such returns or reports have been timely
filed and granted and have not expired, except to the extent that such failures
to file, taken together, do not have a material adverse effect on EPA. EPA has
made all payments shown as due on such returns. EPA has not been notified that
any tax returns of EPA are currently under audit by the Internal Revenue Service
or any state or local tax agency. No agreements have been made by EPA for the
extension of time or the waiver of the statute of limitations for the assessment
or payment of any federal, state or local taxes.
3.13 Employee Benefit Plans; Employment Matters. (a) Except as set
forth in Exhibit 3.13(a) to the EPA Disclosure Schedule, EPA has neither
established nor maintains nor is obligated to make contributions to or under or
otherwise participate in (i) any bonus or other type of incentive compensation
plan, program or arrangement (whether or not set forth in a written document),
(ii) any pension, profit-sharing, retirement or other plan, program or
arrangement, or (iii) any other employee benefit plan, fund or program,
including, but not limited to, those described in Section 3(3) of ERISA. All
such plans listed in Exhibit 3.13(a) (individually, a "EPA Plan" and
collectively, the "EPA Plans") have been operated and administered in all
material respects in accordance with, as applicable, ERISA, the Code, the Age
Discrimination in Employment Act of 1967, as amended, and the related rules and
regulations adopted by those federal agencies responsible for the administration
of such laws. No act or failure to act by EPA has resulted in a "prohibited
transaction" (as defined in ERISA) with respect to the EPA Plans that is not
subject to a statutory or regulatory exception and that could have a material
adverse effect on EPA. No "reportable event" (as defined in ERISA, but excluding
any event for which is waived under the ERISA regulations) has occurred with
respect to any of the EPA Plans which is subject to Title IV of ERISA. EPA has
not previously made, is not currently making, and is not obligated in any way to
make, any contributions to any multi-employer plan within the meaning of the
Multi-Employer Pension Plan Amendments Act of 1980.
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(b) Except as disclosed in the EPA Documents or as set forth in Exhibit
3.13(b) to the EPA Disclosure Schedule, EPA is not a party to any oral or
written (i) union, guild or collective bargaining agreement which agreement
covers employees in the United States (nor is it aware of any union organizing
activity currently being conducted in respect to any of its employees), (ii)
agreement with any executive officer or other key employee the benefits of which
are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction of the nature contemplated by this Plan of Merger
and which provides for the payment of in excess of $25,000, or (iii) agreement
or plan, including any stock option plan, including any stock appreciation
rights plan, restricted stock plan or stock purchase plan, any of the benefits
of which will be increased, or the vesting of which will be accelerated, by the
occurrence of any of the transactions contemplated by this Plan of Merger or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Plan of Merger.
3.14 Compliance with Laws in General. Except as set forth in Exhibit
3.14 to the EPA Disclosure Schedule, EPA not received any notices of material
violations of any federal, state and local laws, regulations and ordinances
relating to its business and operations, including, without limitation, the
Occupational Safety and Health Act, the Americans with Disabilities Act, the
Medicare or applicable Medicaid statutes and regulations and any Environmental
Laws, and no notice of any pending inspection or violation of any such law,
regulation or ordinance has been received by EPA which, if it were determined
that a violation had occurred, would have a material adverse affect on EPA.
3.15. Regulatory Approvals. Except as disclosed in the EPA Documents or
Exhibit 3.15 to the EPA Disclosure Schedule, EPA holds all licenses,
certificates of need and other regulatory approvals required or necessary to be
applied for or obtained in connection with its business as presently conducted
or as proposed to be conducted, except where the failure to obtain such license,
certificate of need or regulatory approval would not have a material adverse
effect on EPA. All such licenses, certificates of need and other regulatory
approvals relating to the business, operations and facilities of EPA are in full
force and effect except where any failure of such license, certificate of
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need or regulatory approval to be in full force and effect would not have a
material adverse effect on EPA. Any and all past litigation concerning such
licenses, certificates of need and regulatory approval, and all claims and
causes of action raised therein, has been finally adjudicated. No such license,
certificate of need or regulatory approval has been revoked, conditioned (except
as may be customary) or restricted, and no action (equitable, legal or
administrative), arbitration or other process is pending, or to the best
knowledge of EPA, threatened, which in any way challenges the validity of, or
seeks to revoke, condition or restrict any such license, certificate of need, or
regulatory approvals. Subject to compliance with applicable securities laws and
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR
Act"), the consummation of the Merger will not violate any law or restriction to
which EPA is subject which, if violated, would have a material adverse effect on
EPA.
3.16 Commissions and Fees. Except for the fees payable to Wallingford
Capital pursuant to the letter agreement, a copy of which has been delivered to
MedPartners/Mullikin, there are no valid claims for brokerage commissions or
finder's or similar fees in connection with the transactions contemplated by
this Plan of Merger which may be now or hereafter asserted against
MedPartners/Mullikin from any action taken by EPA or its officers, directors or
agents, or any of them.
3.17 Retirement or Re-Acquisition of MedPartners/Mullikin Common Stock.
EPA is not a party to any agreement the effect of which would be to require
MedPartners/Mullikin directly or indirectly to retire or re-acquire all or part
of the shares of MedPartners/Mullikin Common Stock issued pursuant to Section
2.1 hereof.
3.18 Disposition of Assets of Surviving Corporation. EPA is not a party
to any plan to dispose of a significant part of the assets of the Surviving
Corporation within two years after the Closing Date, other than dispositions in
the ordinary course of business of Surviving Corporation and dispositions
intended to eliminate duplicate facilities or excess capacity.
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3.19 Vote Required. The affirmative vote of the holders of a majority
of the outstanding EPA Shares entitled to vote thereon is the only vote of the
holders of any class or series of EPA capital stock necessary to approve this
Plan of Merger, the Merger and the transactions contemplated hereby, it being
understood, however, that the approval of the Merger by the EPA shareholders is
to be accomplished by action without a meeting pursuant to Section 14A:5-6 of
the NJBCA by the execution and delivery simultaneously with the execution and
delivery of this Plan of Merger of an irrevocable written consent of the sole
shareholder of EPA.
3.20 EPA Shareholder Investment Qualification. To the best knowledge of
EPA, after due inquiry by the officers and directors of EPA, the sole
shareholder of EPA is an "accredited investor" as defined in Rule 501 (a) of
Regulation D promulgated by the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act") so as to enable the
private placement of the MedPartners/Mullikin Shares to be issued to the sole
shareholder of the EPA shares in the Merger to qualify for the exemption
provided under Section 4(2) of the Securities Act.
3.21 No Untrue Representations. No representation or warranty by EPA in
this Plan of Merger, and no Exhibit or certificate issued by EPA and furnished
or to be furnished to MedPartners/Mullikin and the Subsidiary pursuant hereto,
or in connection with the transactions contemplated hereby, contains or will
contain any untrue statement of a material fact in response to the disclosure
requested, or omits or will omit to state a material fact necessary to make the
statements or facts contained therein in response to the disclosure requested
not misleading in light of all of the circumstances then prevailing.
Section 4. Representations and Warranties of the Subsidiary.
The Subsidiary hereby represents and warrants to EPA as follows:
4.1 Organization, Existence and Capital Stock. The Subsidiary is a
newly organized corporation duly organized and validly existing and is in good
standing under the laws of the
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State of Delaware. The Subsidiary's authorized capital consists of 1,000 shares
of Common Stock, par value $1.00 per share, all of which shares are issued and
registered in the name of MedPartners/Mullikin. The Subsidiary has not, within
two years immediately preceding the date of this Plan of Merger, owned, directly
or indirectly, any EPA Shares.
4.2 Power and Authority. The Subsidiary has the corporate power to
execute, deliver and perform this Plan of Merger and all agreements and other
documents executed and delivered or to be executed and delivered, by it pursuant
to this Plan of Merger, and, subject to the satisfaction of the conditions
precedent set forth herein, has taken all actions required by law, its
Certificate of Incorporation, its By-laws or otherwise, to authorize the
execution and delivery of this Plan of Merger and such related documents. The
execution and delivery of this Plan of Merger does not and, subject to the
receipt of required regulatory approvals and any other required third-party
consents or approvals, the consummation of the Merger contemplated hereby will
not, violate any provisions of the Certificate of Incorporation or By-laws of
the Subsidiary, or any agreement, instrument, order, judgment or decree to which
the Subsidiary is a party or by which it is bound, violate any restrictions of
any kind to which the Subsidiary is subject, or result in the creation of any
lien, charge or encumbrance upon any of the property or assets of the
Subsidiary.
4.3 Commission and Fees. There are no claims for brokerage commissions,
investment bankers' fees or finder's fees in connection with the transaction
contemplated by this Plan of Merger resulting from any action taken by the
Subsidiary or any of its officers, Directors or agents.
4.4 Legal Proceedings. There are no actions, suits or proceedings
pending or threatened against the Subsidiary, at law or in equity, relating to
or affecting the Subsidiary, including the Merger. The Subsidiary does not know
or have any reasonable grounds to know of any justification for any such action,
suit or proceeding.
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4.5 No Subsidiaries. The Subsidiary does not own stock in, and does not
control directly or indirectly, any other corporation, association or business
organization. The Subsidiary is not a party to any joint venture or partnership.
4.6 No Contracts or Liabilities. Other than the obligations created
under this Plan of Merger, the Subsidiary is not obligated under any contracts,
claims, leases, liabilities (contingent or otherwise), loans or otherwise.
Section 5. Representations and Warranties of MedPartners/Mullikin.
MedPartners/Mullikin hereby represents and warrants to EPA as follows:
5.1 Organization, Existence and Good Standing. MedPartners/Mullikin is
a corporation duly organized and validly existing and is in good standing under
the laws of the State of Delaware. MedPartners/Mullikin has all necessary
corporate power to own its properties and assets and to carry on its business as
presently conducted. MedPartners/Mullikin is not, and has not been within the
two years immediately preceding the date of this Plan of Merger, a subsidiary or
division of another corporation, nor has MedPartners/Mullikin within such time
owned, directly or indirectly, any EPA Shares.
5.2 MedPartners/Mullikin Capitalization. MedPartners/Mullikin has an
authorized capitalization of 9,500,000 shares of Preferred Stock, par value
$.001 per shares, of which no shares are issued and outstanding, and no shares
are held in treasury, 500,000 shares of Series C Junior Participating Preferred
Stock, par value $.001 per share, of which no shares are outstanding and no
shares are held in treasury and 200,000,000 shares of Common Stock, par value
$.001 per share, of which 50,786,775 shares were issued and outstanding at May
1, 1996, and, no shares are held in treasury. All of the issued and outstanding
shares of MedPartners/Mullikin Common Stock have been duly and validly issued
and are fully paid and nonassessable. Except as disclosed in the
MedPartners/Mullikin S-1 Registration Statement (as herein defined), and except
as described in
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Exhibit 5.2 to the MedPartners/Mullikin Disclosure Schedule delivered to EPA at
the time of the execution and delivery of this Plan of Merger (the
"MedPartners/Mullikin Disclosure Schedule"), there are no options, warrants or
similar rights granted by MedPartners/Mullikin or any other agreements to which
MedPartners/Mullikin is a party providing for the issuance or sale by it of any
additional securities. There is no liability for dividends declared or
accumulated but unpaid with respect to any shares of MedPartners/Mullikin Common
Stock. MedPartners/Mullikin has not made any distributions to any holder of
MedPartners/Mullikin Common Stock or participated in or effected any issuance,
exchange or retirement of MedPartners/Mullikin Common Stock, or otherwise
changed the equity interests of holders of MedPartners/Mullikin Common Stock, in
contemplation of effecting the Merger within the two years immediately preceding
the date of this Plan of Merger. Any shares of MedPartners/Mullikin Common Stock
that MedPartner/Mullikin has re-acquired during the two years immediately
preceding the date of this Plan of Merger have been so re-acquired only for
purposes other than Business Combinations.
5.3 MedPartners/Mullikin Common Stock. On the Closing Date,
MedPartners/Mullikin will have a sufficient number of authorized but unissued
and/or treasury shares of its Common Stock available for issuance to the holders
of EPA Shares in accordance with the provisions of this Plan of Merger. The
MedPartners/Mullikin Common Stock to be issued Pursuant to this Plan of Merger
will, when so delivered, be (i) duty and validly issued, fully paid and
nonassessable and (iii) listed on the NYSE, upon official notice of issuance.
5.4 Subsidiaries and Affiliated Entities.
(a) Attached as Exhibit 5.4 to the MedPartners/Mullikin Disclosure
Schedule is a list of all subsidiaries of MedPartners/Mullikin (individually, a
"MedPartners/Mullikin Subsidiary," and collectively, the "MedPartners/Mullikin
Subsidiaries") and their states of incorporation and all professional
corporations or professional associations (individually a "MedPartners/Mullikin
Professional Corporation" and collectively the "MedPartners/Mullikin
Professional Corporations") of which MedPartners/Mullikin has control and their
states of incorporation. Except as set forth in
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Exhibit 5.4 to the MedPartners/Mullikin Disclosure Schedule,
MedPartners/Mullikin does not own stock in and does not control, directly or
indirectly, any other corporation, association, partnership or business
organization.
(b) Also disclosed in Exhibit 5.4 to the MedPartners/Mullikin
Disclosure Schedule is a list of all general or limited partnerships in which a
general partner is MedPartners/Mullikin, a MedPartners/Mullikin Subsidiary or
another partnership controlled by MedPartners/Mullikin (individually a
"MedPartners/Mullikin Partnership" and collectively, the "MedPartners/Mullikin
Partnerships"), and all limited liability companies in which
MedPartners/Mullikin a MedPartners/Mullikin Subsidiary is a member
(individually, a "MedPartners/Mullikin LLC", the MedPartners/Mullikin
Professional Corporations and the MedPartners/Mullikin LLCs being collectively
called the "Other MedPartners/Mullikin Entities"), and their states of
organization. Except as set forth in Exhibit 5.4 to MedPartners/Mullikin
Disclosure Schedule, neither MedPartners/Mullikin nor any MedPartners/Mullikin
Subsidiary owns an equity interest in, nor does such entity control, directly or
indirectly, any other joint venture, limited liability company or partnership.
(c) Except as set forth in Exhibit 5.4, neither MedPartners/Mullikin
nor any MedPartners/Mullikin Subsidiary owns an equity interest in, nor does
such entity control, directly or indirectly, any other joint venture or
partnership.
5.5 Organization, Existence and Good Standing of MedPartners/Mullikin
Subsidiaries and Other MedPartners/Mullikin Entities.
(a) Each MedPartners/Mullikin Subsidiary and each MedPartners/Mullikin
Entity is a corporation duly organized, validly existing and in good standing
under the laws of its respective state of incorporation. Each
MedPartners/Mullikin Subsidiary and each MedPartners/Mullikin Professional
Corporation has all necessary corporate power to own its properties and assets
and to carry on its business as presently conducted.
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(b) Each MedPartners/Mullikin Partnership that is a limited partnership
is validly formed, each MedPartners/Mullikin Partnership that is a general
partnership has been duly organized, and each MedPartners/Mullikin Partnership
is in good standing under the laws of its respective state of organization. Each
MedPartners/Mullikin Partnership has all necessary power to own its property
and assets and to carry on its business as presently conducted.
(c) Each MedPartners/Mullikin LLC that is a limited company validly
formed and in good standing under the laws of its respective state of
organization. Each MedPartners/Mullikin LLC has all necessary power to own its
property and assets and to carry on its business as presently conducted.
5.6 Foreign Qualifications. MedPartners/Mullikin, each
MedPartners/Mullikin Subsidiary and MedPartners/Mullikin LLC is qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the nature or character of the property owned, leased or operated by it or
the nature of the business transacted by it makes such qualification necessary,
except where the failure to so qualify would not have a material adverse effect
on MedPartners/Mullikin.
5.7 Subsidiary Common Stock. MedPartners/Mullikin owns, beneficially
and of record, all of the issued and outstanding shares of Common Stock, par
value, $1.00 per share, of the Subsidiary (the "Subsidiary Common Stock"), which
are validly issued and outstanding, fully paid and nonassessable, free and clear
of all liens and encumbrances. MedPartners/Mullikin has, or will by the
Effective Time have, taken all such actions as may be required in its capacity
as the sole stockholder of the Subsidiary to approve the Merger.
5.8 Power and Authority. MedPartners/Mullikin has corporate power to
execute, deliver and perform this Plan of Merger and all agreements and other
documents executed and delivered, or to be executed and delivered, by it
pursuant to this Plan of Merger, and, subject to the satisfaction of the
conditions precedent set forth herein has taken all actions required by law, its
Certificate of
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Incorporation, its By-laws or otherwise, to authorize the execution and delivery
of this Plan of Merger and such related documents. The execution and delivery of
this Plan of Merger does not and, subject to the receipt of required regulatory
approvals and any other required third-party consents or approvals, the
consummation of the Merger contemplated hereby will not, violate any provisions
of the Certificate of Incorporation or By-laws of MedPartners/Mullikin, or any
provision of, or result in the acceleration of any obligation under, any
mortgage, lien, lease, agreement, instrument, order, arbitration award,
judgement or decree to which MedPartners/Mullikin is a party or by which it is
bound, or violate any restrictions of any kind to which MedPartners/Mullikin is
subject. The execution and delivery of this Plan of Merger has been approved by
the Board of Directors of MedPartners/Mullikin and the approval of the Merger or
this Plan of Merger by the MedPartners/Mullikin stockholders is not required.
5.9 MedPartners/Mullikin Public Information. MedPartners/Mullikin has
heretofore made available to EPA a true and complete copy of each report,
schedule, registration statement and definitive proxy statement filed by it or
its predecessor, MedPartners, Inc., with the SEC (as any such documents have
since the time of their original filing been amended, the "MedPartners/Mullikin
Documents") since February 21, 1995, which are all the documents (other than
preliminary material) that it was required to file with the SEC since such date.
As of their respective dates, the MedPartners/Mullikin Documents did not contain
any untrue statements of material facts or omit to state material facts required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. As of their
respective dates, the MedPartners/Mullikin Documents complied in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act, and the rules and regulations promulgated under such statutes. The
financial statements contained in the MedPartners/Mullikin Document, together
with the notes thereto, have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the periods indicated
(except as may be indicated in the notes thereto, or, in the case of the
unaudited financial statements, as permitted by Form 10-0), reflect all known
liabilities of MedPartners/Mullikin, fixed or contingent, required to be stated
therein, and present fairly the financial condition of MedPartners/Mullikin at
said dates and the
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consolidated results of operations and cash flows of MedPartners/Mullikin for
the periods then ended. The consolidated balance sheet of MedPartners/Mullikin
at December 31, 1995, included in the Annual Report on Form 10-K for the fiscal
year ended December 31, 1995 of MedPartners/Mullikin is herein sometimes
referred to as the "MedPartners/Mullikin Balance Sheet".
5.10 Legal Proceedings. There is no pending or threatened litigation,
governmental investigation, condemnation or other proceeding against or relating
to or affecting MedPartners/Mullikin or the transactions contemplated by this
Plan of Merger for which MedPartners/Mullikin is uninsured or which, if resolved
adversely to MedPartners/Mullikin, would have a material adverse effect on
MedPartners/Mullikin and, to the knowledge of MedPartners/Mullikin, no basis for
any such action exists.
5.11 Subsequent Events. Except as set forth in Exhibit 5.11 to the
MedPartners/Mullikin Disclosure Schedule, MedPartners/Mullikin has not, since
the date of the MedPartners/Mullikin Balance Sheet:
(a) Incurred any material adverse change.
(b) Discharged or satisfied any material lien or encumbrance,
or paid or satisfied any material obligation or liability (absolute,
accrued, contingent or otherwise) other than (i) liabilities shown or
reflected on the MedPartners/Mullikin Balance Sheet or (ii) liabilities
incurred since the date of the MedPartners/Mullikin Balance Sheet in
the ordinary course of business, which discharge or satisfaction would
not have a material adverse effect on MedPartners/Mullikin.
(c) Increased or established any reserve for taxes, or any
other liability on its books or otherwise provided therefor which would
have a material adverse effect on MedPartners/Mullikin, except as may
have been required due to income or
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operations of MedPartners/Mullikin since the date of the
MedPartners/Mullikin Balance Sheet.
(d) Mortgaged, pledged or subjected to any lien, charge or
other encumbrance any of the assets, tangible or intangible, which
assets are material to the consolidated business or financial condition
of MedPartners/Mullikin.
(e) Sold or transferred any of the assets material to the
consolidated business of MedPartners/Mullikin, canceled any material,
debts or claims or waived any material rights, except in the ordinary
course of business.
(f) Granted any general or uniform increase in the rates of
pay of employees or any material increase in salary payable or to
become payable by MedPartners/Mullikin to any officer or employee,
consultant or agent (other than normal merit increases), or by means of
any bonus or pension plan, contract or other commitment, increased in a
material respect the compensation of any officer, employee, consultant
or agent.
(g) Except for this Plan of Merger and any agreement executed
and delivered pursuant to this Plan of Merger, entered into any
material transaction other than in the ordinary course of business or
permitted under other Sections of this Plan of Merger.
(h) Issued any stock, bonds or other securities or any options
or rights to purchase any of its securities (other than stock issued
upon the exercise of outstanding options under MedPartners/Mullikin's
stock option plans or stock options granted under such plans, except as
set forth in Exhibit 5.11(h) to the MedPartners/Mullikin Disclosure
Schedule.
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5.12 Compliance with Laws in General. MedPartners/Mullikin has not
received any notices of material violations of any federal, state and local
laws, regulations and ordinances relating to its business and operations,
including, without limitation, the Occupational Safety and Health Act, the
Americans with Disabilities Act, the Medicare or applicable Medicaid statutes
and regulations and any Environmental Laws, and no notice of any pending
inspection or violation of any such law, regulation or ordinance has been
received by MedPartners/Mullikin which, if it were determined that a violation
had occurred, would have a material adverse effect on MedPartners/Mullikin.
5.13 Regulatory Approvals. Except as disclosed in the
MedPartners/Mullikin Documents or in Exhibit 5.13 to the MedPartners/Mullikin
Disclosure Schedule, MedPartners/Mullikin and each MedPartners/Mullikin
Subsidiary, as applicable, holds all licenses, certificates of need and other
regulatory approvals required or necessary to be applied for or obtained in
connection with its business as presently conducted or as proposed to be
conducted, except where the failure to obtain such license, certificate of need
or regulatory approval would not have a material adverse effect on
MedPartners/Mullikin. All such licenses, certificates of need and other
regulatory approvals relating to the business, operations and facilities of
MedPartners/Mullikin and each MedPartners/Mullikin Subsidiary are in full force
and effect, except where any failure of such license, certificate of need or
regulatory approval to be in full force and effect would not have a material
adverse effect on MedPartners/Mullikin. Any and all past litigation concerning
such licenses, certificates of need and regulatory approvals, and all claims and
causes of action raised therein, has been finally adjudicated. No such license,
certificate of need or regulatory approval has been revoked, conditioned (except
as may be customary) or restricted, and no action (equitable, legal or
administrative), arbitration or other process is pending, or to the best
knowledge of MedPartners/Mullikin, threatened, which in any way challenges the
validity of, or seeks to revoke, condition or restrict any such license,
certificate of need, or regulatory approval. Subject to compliance with
applicable securities laws and the HSR Act, the consummation of the Merger will
not violate any law or restriction to which MedPartners/Mullikin is subject
which, if violated, would have a material adverse effect on
MedPartners/Mullikin.
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5.14 Investment Intent. MedPartners/Mullikin is acquiring the EPA
Shares hereunder for its own account and not with a view to the distribution or
sale thereof, and MedPartners/Mullikin has no understanding, agreement or
arrangement to sell, distribute, partition or otherwise transfer or assign all
or any part of the EPA Shares to any other person, firm or corporation.
5.15 Commissions and Fees. There are no claims for brokerage
commissions, investment bankers' fees or finder's fees in connection with the
transactions contemplated by this Plan of Merger resulting from any action taken
by MedPartners/Mullikin or any of its officers, Directors or agents.
5.16 Retirement or Re-Acquisition of MedPartners/Mullikin.
MedPartners/Mullikin Common Stock has not agreed directly or indirectly to
retire or re-acquire all or part of the shares of MedPartners/Mullikin Common
Stock issued pursuant to Section 2.1 hereof.
5.17 Disposition of Assets of Surviving Corporation. MedPartners/
Mullikin does not intend or plan to dispose of, or to cause the Surviving
Corporation to dispose of, or to cause the Surviving Corporation to dispose of,
a significant part of the assets of the Surviving Corporation within two years
after the Effective Date, other than dispositions in the ordinary course of
business of the Surviving Corporation and dispositions intended to eliminate
duplicate facilities or excess capacity.
5.18 Registration Rights. Except as set forth in Exhibit 5.18 or in the
MedPartners/Mullikin Documents, MedPartners/Mullikin is not under any
obligations to register shares of its stock with the SEC on behalf of any
stockholder. MedPartners/Mullikin has not received any demand for registration
of any shares of its stock from any other stockholder and is not aware of any
intention of any stockholder to make such a demand; provided, however, that
MedPartners/Mullikin is contractually obligated to carry out two registrations
before the end of 1996.
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5.19 No Untrue Representations. No representation or warranty by
MedPartners/Mullikin in this Plan of Merger, and no Exhibit or certificate
issued by MedPartners/Mullikin and furnished or to be furnished to EPA pursuant
hereto, or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact in response to the
disclosure requested, or omits or will omit to state a material fact necessary
to make the statements or facts contained therein in response to the disclosure
requested not misleading in light of all of the circumstances then prevailing.
Section 6. Access to Information and Documents.
6.1 Access to Information. Between the date hereof and the Closing
Date, EPA will give to MedPartners/Mullikin and its counsel, accountants and
other representatives full access to all the properties, documents, contracts,
personnel files and other records of such party and shall furnish
MedPartners/Mullikin with copies of such documents and with such information
with respect to the affairs of such party as the other party may from time to
time reasonably request. EPA will disclose and make available to
MedPartners/Mullikin and its representatives all books, contracts, accounts,
personnel records, letters of intents, papers, records, communications with
regulatory authorities and other documents relating to the business and
operations of EPA. In addition, EPA shall make available to MedPartners/Mullikin
all such banking, investment and financial information as shall be necessary to
allow for the efficient integration of EPA's banking, investment and financial
arrangements with those of MedPartners/Mullikin at the Effective Time.
6.2 Return of Records. If the transactions contemplate hereby are not
consummated and this Plan of Merger terminates, each party agrees to promptly
return all documents, contracts, records or properties of the other party and
all copies thereof furnished pursuant to this Section 6 or otherwise. All
information disclosed by any party or any affiliate or representative of any
party shall be deemed to be "Evaluation Material" under the terms of the
Confidentiality Agreement dated November 15, 1995, between EPA and
MedPartners/Mullikin (the "Confidentiality Agreement").
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6.3 Effect of Access. (a) Nothing contained in this Section 6 shall be
deemed to create any duty or responsibility on the part of either party to
investigate or evaluate the value, validity or enforceability of any contract,
lease or other asset included in the assets of the other party.
(b) With respect to matters as to which any party has made express
representations or warranties herein, the parties shall be entitled to rely upon
such express representations and warranties irrespective of any investigations
made by such parties, except to the extent that such investigations result in
actual knowledge of the inaccuracy or falsehood of particular representations
and warranties.
Section 7. Covenants.
7.1 Preservation of Business. EPA will use its reasonable best efforts
to preserve the business organization of EPA intact, to keep available to
MedPartners/Mullikin and the Surviving Corporation the services of the present
employees of EPA, and to preserve for MedPartners/Mullikin and the Surviving
Corporation the goodwill of the suppliers, customers and others having business
relations with EPA.
7.2 Material Transactions. Prior to the Effective Time, EPA will not
(other than as contemplated by the terms of the Plan of Merger and the related
documents, and other than with respect to transactions for which binding
commitment have been entered into prior to the date hereof and transactions
described in Exhibit 7.2) to the EPA Disclosure Schedule which do not vary
materially from the terms set forth on such Exhibit 7.2, without first obtaining
the written consent of MedPartners/Mullikin:
(a) Encumber any asset or enter into any transaction or make
any contract or commitment relating to the properties, assets and
business of EPA, other than in the ordinary course of business or as
otherwise disclosed herein.
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(b) Enter into any employment contract which is not terminable
upon notice of 30 days or less, at will, and without penalty to EPA
except as provided herein.
(c) Enter into any contract or agreement (i) which cannot be
performed within three months or less, or (ii) which involves the
expenditure of over $50,000, except in the ordinary course of business.
(d) Issue or sell, or agree to issue or sell, any shares of
capital stock or other securities of EPA.
(e) Make any payment or distribution to the trustee under any
bonus, pension, profit-sharing or retirement plan or incur any
obligation to make any such payment or contribution which is not in
accordance with EPA's usual past practice, or make any payment or
contributions or incur any obligation pursuant to or in respect of any
other plan or contract or arrangement providing for bonuses, executive
incentive compensation, pensions, deferred compensation, retirement
payments, profit-sharing or the like, establish or enter into any such
plan, contract or arrangement, or terminate any plan.
(f) Extend credit to anyone, except in the ordinary course of
business consistent with prior practices.
(g) Guarantee the obligation of any person, firm or
corporation, except in the ordinary course of business consistent with
prior practices.
(h) Amend its Certificate or Articles of Incorporation or
By-laws.
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(i) Take any action of a character described in Section
3.10(a) to 3.10(h), inclusive.
7.3 Approval of EPA Shareholder. EPA will take all steps necessary in
accordance with its Articles of Incorporation and By-laws to call, give notice
of, convene and hold a meeting of its sole shareholder (the "Shareholders
Meeting") as soon as practicable after the execution and delivery of this Plan
of Merger, for the purpose of approving this Plan of Merger and for such other
purposes as may be necessary. Unless this Plan of Merger shall have been validly
terminated as provided herein, the Board of Directors of EPA (subject to the
provisions of Section 8.1 (d) hereof) will: (i) recommend to its shareholder the
approval of the Plan of Merger, the transactions contemplated hereby and any
other matters to submitted to the sole shareholder in connection therewith, to
the extent that such approval is required by applicable law in order to
consummate the Merger, and (ii) use its reasonable, good faith efforts to obtain
the approval by its shareholder of this Plan of Merger and the transactions
contemplated hereby. Nothing contained herein shall affect the right of EPA's
shareholder to take action by written consent in lieu of a meeting to the extent
permitted by applicable law and its Articles of Incorporation and By-Laws.
7.4 Securities Matters. (a) MedPartners/Mullikin shall prepare and
distribute to the sole holder of EPA Shares an information package (the
"Information Package") designed to provide such shareholder with such
information as he shall need about this Plan of Merger and the Merger in order
to qualify for private placement of MedPartners/Mullikin Shares into which the
EPA Shares are to be converted pursuant to this Plan of Merger for the exemption
under the Securities Act provided by Section 4(2) promulgated thereunder. EPA
shall provide MedPartners/Mullikin with such information and documentation as
shall be reasonably requested by MedPartners/Mullikin in order to prepare the
Information Package contemplated by this Section 7.4(a).
(b) The information specifically designated as being supplied by EPA
for inclusion in the Information Package shall not, at the time the Information
Package is delivered to the shareholder of EPA, at the time of the meeting of
the EPA shareholder and at the Effective Time,
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contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, not misleading. If at any time prior to the Effective Time any event or
circumstance relating to EPA, or its officers or directors, should be discovered
by EPA which should be set forth in an amendment or a supplement to the
Information Package, EPA shall promptly inform MedPartners/Mullikin.
(c) The information specifically designated as being supplied by
MedPartners/ Mullikin for inclusion in the Information Package shall not, at the
time the Information Package is delivered to the shareholder of EPA, at the
Effective Time, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, not misleading. If at any time prior to the Effective
Time any event or circumstance relating to MedPartners/Mullikin, or its officers
or Directors, should be discovered by MedPartners/Mullikin which should be as
forth in an amendment or a supplement to the Information Package,
MedPartners/Mullikin shall promptly inform EPA and shall promptly prepare and
distribute such amendment or supplement to the Information Package.
(d) Prior to the Closing Date, MedPartners/Mullikin shall cause, to the
extent required, the shares of MedPartners/Mullikin Common Stock to be issued
pursuant to the Merger to be registered or qualified under all applicable
securities or Blue Sky laws of each of the states and territories of the United
States, and to take any other actions which may be necessary to enable the
MedPartners/Mullikin Common Stock to be issued pursuant to the Merger to be
distributed in each such jurisdiction.
(e) Prior to the Closing Date, MedPartners/Mullikin shall file a
Subsequent Listing Application with the NYSE relating to the shares of
MedPartners/Mullikin Common Stock to be issued in connection with the Merger,
and shall cause such shares of MedPartners/Mullikin Common Stock to be listed on
the NYSE, upon official notice of issuance, prior to the Closing Date.
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7.5 Exemption from State Takeover Laws. EPA shall take all reasonable
steps necessary and within its power to exempt the Merger from the requirements
of any state takeover statute or other similar state law which would prevent or
impede the consummation of the transactions contemplated hereby, by action of
EPA's Board of Directors.
7.6 Public Disclosures. MedPartners/Mullikin and EPA will consult with
each other before issuing any press release or otherwise making any public
statement with respect to the transactions contemplated by this Plan of Merger,
and shall not issue any such press release or make any such public statement
prior to such consultation except as may be required by application law or
requirements of the NYSE. The parties shall issue a joint press release,
mutually acceptable to MedPartners/Mullikin and EPA, promptly upon execution and
delivery of this Plan of Merger.
7.7 Resignation of EPA Directors. On or prior to the Closing Date, EPA
shall deliver to MedPartners/Mullikin evidence satisfactory to
MedPartners/Mullikin of the resignation of the directors of EPA, such
resignations to be effective on the Closing Date.
7.8 Notice of Subsequent Events. Each party hereto shall notify the
other parties of any changes, additions or events of which they have knowledge
which would cause any material change in or material addition to any Exhibit to
its Disclosure Schedule delivered by the notifying party under this Plan of
Merger, promptly after the occurrence of the same. If the effect of such change
or addition would, individually or in the aggregate with the effect of changes
or additions previously disclosed pursuant to this Section 7.8, constitute a
material adverse effect on the notifying party, the non-notifying party may,
within ten days after receipt of such notice, elect to terminate this Plan of
Merger. If the non-notifying party does not give written notice of such
termination within such 10- day period, the non-notifying party shall be deemed
to have consented to such change or addition and shall not be entitled to
terminate this Plan of Merger by reason thereof.
7.9 No Solicitations. Either MedPartners/Mullikin or EPA may, directly
or indirectly, furnish information and access, in response to unsolicited
requests therefor, to the same extent
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permitted by Section 6.1, to any corporation, partnership, person or other
entity or group, pursuant to appropriate confidentiality agreements, and may
participate in discussions and negotiate with such corporation, partnership,
person or other entity or group concerning any proposal to acquire such party
upon a merger, purchase of assets, purchase of or tender offer for shares of its
Common Stock or similar transaction (an "Acquisition Transaction"), if the Board
of Directors of MedPartners/Mullikin or EPA, as the case may be, determines in
its good faith judgment in the exercise of its fiduciary duties or the exercise
of its duties under Rule 14e-2 under the Exchange Act, after consultation with
legal counsel and its financial advisors, that such action is appropriate in
furtherance of the best interest of its stockholders. Except as set forth above,
MedPartners/Mullikin or EPA shall not, and will direct any officer, director,
employee, representative and agent of such party not to, directly or indirectly,
encourage, solicit, participate in or initiate discussions or negotiations with
or provide any information to any corporation, partnership, person or other
entity or group (other than MedPartners/Mullikin or an affiliate or associate or
agent of MedPartners/Mullikin) concerning any merger, sale of assets, sale of or
tender offer for its shares or similar transactions involving such party. Such
party shall promptly notify the other party if it shall, on or after the date
hereof, have entered into a confidentiality agreement with any third party in
response to any unsolicited request for information and access in connection
with a possible Acquisition Transaction involving such party, such notification
to include the identity of such third party and the proposed terms of such
possible Acquisition Transaction.
7.10 Other Actions. Subject to the provisions of Section 7.9 hereof,
none of EPA, MedPartners/Mullikin and the Subsidiary shall knowingly or
intentionally take any action, or omit to take any action, if such action or
omission would, or reasonably might be expected to, result in any of its
representations and warranties set forth herein being or becoming untrue in any
material respect, or in any of the conditions to the Merger set forth in this
Plan of Merger not being satisfied, or (unless such action is required by
applicable law) which would materially adversely affect the ability, of EPA or
MedPartners/Mullikin to obtain any consents or approvals required for the
consummation of the Merger without imposition of a condition or restriction
which would have a material adverse effect on the Surviving Corporation or which
would otherwise materially impair
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the ability of EPA or MedPartners/Mullikin, to consummate the Merger in
accordance with the terms of this Plan of Merger or materially delay such
consummation.
7.11 Accounting Methods. Neither MedPartners/Mullikin nor EPA shall
change, in any material respect, its methods of accounting in effect at its most
recent fiscal year end, except as required by changes in generally adopted
accounting principles as concurred by such parties' independent accountants.
7.12 Pooling and Tax-Free Reorganization Treatment. Neither
MedPartners/Mullikin nor EPA shall intentionally take or cause to be taken any
action, whether on or before the Effective Time, which would disqualify the
Merger as a "pooling of interests" for accounting purposes or as a
"reorganization" within the meaning of Section 368(a) of the Code.
7.13 Affiliate and Pooling Agreements. MedPartners/Mullikin and EPA
will each use their respective reasonable, good faith efforts to cause each of
their respective Directors and executive officers and each of their respective
"affiliates" (within the meaning of Rule 145 under the Securities Act) to
execute and deliver to MedPartners/Mullikin as soon as practicable an agreement
in the form attached hereto as Exhibit 7.13 relating to the disposition of
shares of EPA Common Stock and shares of MedPartner/Mullikin Common Stock hold
by such person and the shares of MedPartners/Mullikin Common Stock issuable
pursuant to this Plan of Merger.
7.14 Cooperation. (a) MedPartners/Mullikin and EPA shall together, or
pursuant to an allocation of responsibility agreed to between them, (i)
cooperate with one another in determining whether any filings required to be
made required to be obtained in any jurisdiction prior to the Effective Time in
connection with the consummation of the transactions contemplated hereby and
cooperate in making any such filings promptly and in seeking to obtain timely
any such consents, (ii) use their respective best efforts to cause to be lifted
any injunction prohibiting the Merger, or any part thereof, or the other
transactions contemplated hereby, and (iii) furnish to one another and to one
another's counsel all such information as may be required to effect the
foregoing actions.
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(b) Subject to the terms and conditions herein provided, and unless
this Plan of Merger shall have been validly terminated as provided herein, each
of MedPartners/Mullikin and EPA shall use all reasonable efforts (i) to take, or
cause to be taken, all actions necessary to comply promptly with all legal
requirements which may be imposed on such party (or any subsidiaries or
affiliates of such party) with respect to the Plan of Merger and to consummate
the transactions contemplated hereby, subject to the vote of EPA's shareholder
described above, and (ii) to obtain (and to cooperate with the other party to
obtain) any consent, authorization, order or approval of, or any exemption by,
any governmental entity and/or any other public or private third party which is
required to be obtained or made by such party or any of its subsidiaries or
affiliates in connection with this Plan of Merger and the transactions
contemplated hereby. Each of MedPartners/Mullikin and EPA will promptly
cooperate with and furnish information to the other in connection with any such
burden suffered by, or requirement imposed upon, either of them or any of their
subsidiaries or affiliates in connection with the foregoing.
7.15 Publication of Combined Results. MedPartners/Mullikin agrees that
within 30 days after the end of the first full calendar month following the
Effective Time, MedPartners/ Mullikin shall cause publication of the combined
results of operations for MedPartners/Mullikin and EPA, provided however that
such period shall be tolled for such period as the financial statements required
for the preparation of such financial statements for such publication (which
financial statements MedPartners/Mullikin agrees to use its best efforts to
obtain) are not reasonably available to MedPartners/Mullikin. For purposes of
this Section 7.15, the term "publication" shall have the meaning provided in SEC
Accounting Series Release No. 135.
7.16 Post Closing Matters. There is no plan or intention on the part of
MedPartners/ Mullikin, or the Subsidiary to liquidate, sell, merge or otherwise
dispose of the stock of the Surviving Corporation except for transfers of stock
to affiliates of MedPartners/Mullikin. Med/Partners/Mullikin and the Subsidiary
currently plan, and intend for the Surviving Corporation after the Merger, (i)
to continue EPA's historic business or (ii) to use a significant portion of
EPA's historic business assets in a business, subject to the provisions of
Section 1.5.
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7.17 Certain Employee Benefits. MedPartners/Mullikin shall provide or
cause the Surviving Corporation to provide all of the EPA employees who are
employed by the Surviving Corporation after the Closing Date shall be entitled
to participate in all benefit plans and programs generally made available to all
MedPartners/Mullikin employees.
7.18 MedPartners/Mullikin Common Stock Listing. MedPartners/Mullikin
shall maintain the listing of the MedPartners/Mullikin Common Stock on the NYSE
or another national securities exchange for a period of one year following the
Closing Date.
7.19 Payment of Certain Obligations of EPA: It is acknowledged and
agreed that EPA shall:
(a) pay to the sole shareholder of EPA the net amount of
$148,179 reflected as owed him on the EPA Balance Sheet;
(b) advance to the sole shareholder of EPA the Subchapter S
tax liability payable by him as a result of the 1996 income of EPA
through the Closing Date; and
(c) pay the President of EPA the total amount of $307,500 as
compensation for the period from January 1, 1996 through the Closing
Date.
SECTION 8. TERMINATION, AMENDMENT AND WAIVER.
8.1 Termination. This Plan of Merger may be terminated at any time
prior to the Effective Time, whether before or after approval of matters
presented in connection with the Merger by the holders of EPA Common Stock:
(a) by mutual written consent of MedPartners/Mullikin, the
Subsidiary and EPA;
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(b) by either MedPartners/Mullikin or EPA:
(i) if, upon a vote at a duly hold a meeting of
shareholders or any adjournment thereof, or otherwise, any
required approval of the holders of EPA Common Stock shall not
have been obtained;
(ii) if the Merger shall not have been consummated on
or before September 30, 1996, unless the failure to consummate
the Merger is the result of a willful and material breach of
this Plan of Merger by the party seeking to terminate this
Plan of Merger; provided, however, that the passage of such
period shall be tolled for any part thereof (but not exceeding
60 days in the aggregate) during which any party shall be
subject to a nonfinal order, decree, ruling or action
restraining, enjoining or otherwise prohibiting the
consummation of the Merger or the calling or holding of a
meeting of shareholders;
(iii) if any court of competent jurisdiction or other
governmental entity shall have issued an order, decree or
ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Merger and such
order, decree, ruling or other action shall have become final
and nonappealable;
(iv) in the event of a breach by the other party of
any representation, warranty, covenant or other agreement
contained in this Plan of Merger which (A) would give rise to
the failure of a condition set forth in Section 9.2(a) or (b)
or Section 9.3(a) or (b), as applicable, and (B) cannot be or
has not been cured within 30 days after the giving of written
notice to the breaching party of such breach (a "Material
Breach") (provided that the terminating party is not then in
Material Breach of any representation, warranty, covenant or
other agreement contained in this Plan of Merger); or
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(v) if either MedPartners/Mullikin or EPA gives
notice of termination pursuant to Section 7.8;
(c) by either MedPartners/Mullikin or EPA in the event that
(i) all of the conditions to the obligation of such party to effect the
Merger set forth in Section 9.1 shall have been satisfied and (ii) any
condition to the obligation of such party to effect the Merger set
forth in Section 9.2 (in the case of MedPartners/Mullikin) or Section
9.3 (in the case of EPA) is not capable of being satisfied prior to the
end of the period referred to in Section 8.1(b)(ii);
(d) By EPA, if EPA's Board of Directors shall have (i)
determined, in the exercise of its fiduciary duty under applicable law,
not to recommend the Merger to the holder of EPA Shares or shall have
withdrawn such recommendation or (ii) approved, recommended or
endorsed any Acquisition Transaction (as defined in Section 7.9) other
than this Plan of Merger or (iii) resolved to do any of the foregoing;
(e) By either MedPartners/Mullikin or EPA, if the condition
set forth in Section 9.1(e) is not satisfied by September 30, 1996; or
(f) By EPA if the Base Period Trading Price of the
MedPartners/Mullikin Common Stock on the NYSE is less than $16.00.
8.2 Effect of Termination. In the event of termination of this Plan of
Merger as provided in Section 8.1, this Plan of Merger shall forthwith become
void and have no effect, without any liability or obligation on the part of any
party, other than the provisions of Sections 6.2, 8.2 and 8.6 of this Plan and
Agreement of Merger and the Confidentiality Agreement, and except to the extent
that such termination results from the willful and material breach by a party of
any of its representations, warranties, covenants or other agreements set forth
in this Plan of Merger.
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8.3 Amendment. This Plan of Merger may be amended by the parties at any
time before or after any required approval of matters presented in connection
with the Merger by the holders of EPA Shares. This Plan of Merger may not be
amended except by an instrument in writing signed on behalf of each, of the
parties.
8.4 Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this Plan of Merger or in any
document delivered pursuant to "Plan of Merger or (c) subject to the provisions
of Section 8.3, waive compliance with any of the agreements or conditions
contained in this Plan of Merger. Any agreement on the part of a party to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this Plan of
Merger to assert any of its rights under this Plan of Merger or otherwise shall
not constitute a waiver of such rights, except as otherwise provided in Section
7.8.
8.5 Procedure for Termination, Amendment, Extension or Waiver. A
termination of this Plan of Merger pursuant to Section 8.1, an amendment of this
Plan of Merger pursuant to Section 8.3, or an extension or waiver pursuant to
Section 8.4 shall, in order to be effective, require in the case of
MedPartners/Mullikin, the Subsidiary or EPA, action by its Board of Directors or
the duly authorized designee of the Board of Directors.
8.6 Expenses. All costs and expenses incurred in connection with the
Plan of Merger and the transactions contemplated hereby shall be paid by the
party incurring such expense, it being understood that if the Merger is
consummated, by reason thereof, MedPartners/Mullikin will indirectly bear the
expenses incurred by EPA, including EPA's counsel and accounting fees and the
fees referred to in Section 3.16.
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SECTION 9. CONDITIONS TO CLOSING.
9.1 Mutual Conditions. The respective obligations of each party to
effect the Merger shall be subject to the satisfaction, at or prior to the
Closing Date, of the following conditions (any of which may be waived in writing
by MedPartners/Mullikin, the Subsidiary and EPA):
(a) None of MedPartners/Mullikin, the Subsidiary or EPA nor
any of their respective subsidiaries shall be subject to any order,
decree or injunction by a court of competent jurisdiction which (i)
prevents or materially delays the consummation of the Merger or (ii)
would impose any material limitation on the ability of MedPartners/
Mullikin effectively to exercise full rights of ownership of the Common
Stock of the Surviving Corporation or any material portion of the
assets or business of EPA, taken as a whole.
(b) No statute, rule or regulation shall have been enacted by
the government (or any governmental agency) of the United States or any
state, municipality or other political subdivision thereof that makes
the consummation of the Merger and any other transaction contemplated
hereby illegal.
(c) The holder of shares of EPA Common Stock shall have
approved the adoption of this Plan of Merger and any other matters
submitted to him in accordance with the provisions of Section 7.3
hereof.
(d) The shares of MedPartners/Mullikin Common Stock to be
issued in connection with the Merger shall have been listed on the
NYSE, upon official notice of issuance, and shall have been issued in
transactions qualified or exempt from registration under applicable
securities or Blue Sky laws of such states and territories of the
United States as may be required.
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(e) MedPartners/Mullikin and EPA shall each have received a
letter from Ernst & Young, LLP dated not later than (i) September 30,
1996, and (ii) the Closing Date to the effect that the Merger shall
qualify for "pooling of interests" accounting treatment if consummated
in accordance with the Plan of Merger.
(f) MedPartners/Mullikin, the Subsidiary and EPA shall have
received all consents, approvals and authorizations of third parties
with respect to all material leases and management agreements to which
such parties are parties, which consents, approvals and authorizations
are required of such parties by such documents, in form and substance
acceptable to MedPartners/Mullikin or EPA, as the case may be, except
where the failure to obtain such consent, approval or authorization
would not have a material effect on the business of the Surviving
Corporation.
9.2 Conditions to Obligations of MedPartners/Mullikin and the
Subsidiary. The obligations of MedPartners/Mullikin and the Subsidiary to
consummate the Merger and the other transactions contemplated hereby shall be
subject to the satisfaction, at or prior to the Closing Date, of the following
conditions (any of which may be waived by MedPartners/Mullikin and the
Subsidiary):
(a) Each of the agreements of EPA to be performed at or prior
to the Closing Date pursuant to the terms hereof shall have been duly
performed in all material respects, and EPA shall have performed, in
all material respects, all of the acts required to be performed by it
at or prior to the Closing Date by the term hereof.
(b) The representations and warranties of EPA set forth in
Section 3.10(a) shall be true and correct of the date of this Plan of
Merger and as of the Closing Date. The representations and warranties
of EPA set forth in this Plan of Merger that are qualified as to
materiality shall be true and correct, and those that are not so
qualified be true and correct in all material respects, as of the date
of this Plan of Merger and as of the Closing as though
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made at and as of such time, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties that are qualified as to materiality shall be
true and correct, and those that are not so qualified shall be true and correct
in all material respects, as of such earlier date); provided, however, that EPA
shall not be deemed to be in breach of any such representations or warranties by
taking any action permitted (or approved by MedPartners/Mullikin) under Section
7.2 or otherwise permitted herein. MedPartners/Mullikin and the Subsidiary shall
have been furnished with a certificate, executed by a duly authorized officer of
EPA, dated the Closing Date, certifying in such detail as MedPartners/Mullikin
and the Subsidiary my reasonably request as to the fulfillment of the foregoing
conditions.
(c) MedPartners/Mullikin and the Subsidiary shall have
obtained, or obtained the transfer of, any licenses and other
regulatory approval necessary to allow the Surviving Corporation to
operate EPA's business, unless the failure to obtain such transfer or
approval would not have a material adverse effect on EPA.
(d) MedPartners/Mullikin shall have received an opinion from
Haskell Slaughter & Young, L.L.C., to the effect that the Merger will
constitute a reorganization within the meaning of Section 368 of the
Code of which opinion may be based upon reasonable representations of
fact provided by officers of MedPartners/Mullikin, EPA and the
Subsidiary.
(e) MedPartners/Mullikin shall have received an opinion from
Sherman, Silverstein, Kohl, Rose & Podolsky or Ballard Spahr Andrews
and Ingersoll substantially to the effect set forth in Exhibit 9.2(e)
hereto.
(f) All consents, authorizations, orders and approvals of (or
filings or registrations with) any governmental commission, board or
other regulatory body required in connection with the execution,
delivery and performance of this Plan of Merger shall have
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been obtained or made, except for filings in connection with the Merger
and any other documents required to be filed after Effective Time.
(g) MedPartners/Mullikin shall have received "Affiliate
Letters" as provided in Section 7.13 herein in Section 7.13 herein from
each of the affiliates of EPA.
(h) The Required Lenders (as defined in the Revolving Credit
and Reimbursement Agreement, dated as of November 21, 1995, among
MedPartners/Mullikin and NationsBank of Georgia, N.A., as agent for the
parties thereto shall, in their sole discretion, have approved the
Merger and the transactions contemplated by the Merger.
(i) The shareholder of EPA shall have executed and delivered
to MedPartners/Mullikin an investment letter in the form of Exhibit
9.2(i) attached to this Plan of Merger.
(j) The shareholder of EPA shall have executed and delivered
to MedPartners/Mullikin a Financial Data Sheet in the form included in
the Information Package.
(k) The sole shareholder of EPA shall have executed and
delivered an Indemnification Agreement substantially in the form of
Exhibit 9.2(k) attached to this Plan of Merger.
(l) The sole shareholder of EPA shall have executed and
delivered to MedPartners/Mullikin a document, in form mutually
satisfactory to MedPartners/Mullikin's counsel, pursuant to which such
shareholders confirms and joins in the representations and warranties
and covenants of EPA set forth in this Plan of Merger as of the Closing
Date.
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(m) The lease related to the Corporate headquarters of EPA
shall have been amended in form satisfactory to MedPartners/Mullikin.
(n) The sole shareholder of EPA and MedPartners/Mullikin shall
have entered into an Escrow Agreement, in form satisfactory to
MedPartners/Mullikin and its counsel, pursuant to which such
shareholder shall deposit 10% of the shares of MedPartners/Mullikin
Common Stock to be received by him in the Merger to secure the
production of $1,450,000 EBIT (earnings before interest and taxes,
excluding the impact of the transaction costs associated with the
Merger) by EPA and its affiliated companies during the first six months
of operations after June 1, 1996.
9.3 Conditions to Obligations of EPA. The obligations of EPA to
consummate the Merger and the other transactions contemplated hereby shall be
subject to the satisfaction, at or prior to the Closing Date, of the following
conditions (any of which may be waived by EPA):
(a) Each of the agreements of MedPartners/Mullikin and the
Subsidiary to be performed at or prior to the Closing Date pursuant to
the terms hereof shall have been duty performed, in all material
respects, and MedPartners/Mullikin and the Subsidiary shall have
performed, in all material respects, all of the acts required to be
performed by them at or prior to the Closing Date by the terms hereof.
(b) The representations and warranties of MedPartners/Mullikin
set forth in Section 5.13(a) shall be true and correct as of the date
of the Plan of Merger and as of the Closing Date. The representations
and warranties of MedPartners/Mullikin set forth in this Plan of Merger
that are qualified as to materiality shall be true and correct, and
those that are not so qualified shall be true and correct in all
material respects, as of the date of this Plan of Merger and as of the
Closing as though made at and as of such time, except to the extent
such representations and warranties expressly relate to an earlier date
(in which case such representations and warranties that are qualified
as to materiality shall be true and correct,
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and those that are not so qualified shall be true and correct in all
material respects, as of such earlier date). EPA shall have been
furnished with a certificate, executed by duly authorized officers of
MedPartners/Mullikin and the Subsidiary, dated the Closing Date,
certifying in such detail as EPA may reasonably request as to the
fulfillment of the foregoing conditions.
(c) EPA shall have received an opinion from Sherman,
Silverstein, Kohl, Rose & Podolsky or Ballard Spahr Andrews & Ingersall
to the effect that the Merger will constitute a reorganization with the
meaning of Section 368 of the Code which opinion may be based upon
reasonable representations of fact provided by officers of
MedPartners/Mullikin, EPA and the Subsidiary.
(d) EPA shall have received an opinion from Haskell Slaughter
& Young, L.L.C., substantially to the effect set forth in Exhibit
9.3(d) hereto.
(e) All consents, authorizations, orders and approvals of (or
filings or registrations with) any governmental commission, based on
other regulatory body required in connection with the execution,
delivery and performance of this Plan of Merger shall have been
obtained or made, except for filings in connection with the Merger and
any other documents required to be filed after the Effective Time.
(f) MedPartners/Mullikin and the shareholder of EPA shall have
entered into a Registration Rights Agreement in a form mutually
satisfactory to all parties providing for up to three registrations and
piggyback registration rights thereafter during the two-year holding
period which will be applicable to the MedPartners/Mullikin Shares into
which the EPA Shares shall be converted pursuant to the Merger under
the Securities Act.
(g) Team Health Group, Inc. and Jima E. George, M.D., the sole
shareholder of EPA, shall have entered into Employment Agreements, in
mutually satisfactory forms.
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(h) The lease related to the corporate headquarters of EPA
shall have been amended in form satisfactory to EPA.
Section 10. Miscellaneous.
10.1 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Plan of Merger or in any instrument
delivered pursuant to this Plan of Merger shall survive the Effective Time.
10.2 Notices. Any communications required or desired to be given
hereunder shall be deemed to have been properly given if sent by hand delivery
or by facsimile and overnight courier to the parties hereto at the following
addresses, or at such other address as either party may advise the other in
writing from time to time:
If to MedPartners/Mullikin:
MedPartners/Mullikin
3000 Galleria Tower, Suite 1000
Birmingham, Alabama 35244
Facsimile: (205) 733-1568
Attn: J. Brooke Johnston, Jr., Esq.
Senior Vice President and
General Counsel
with a copy to:
F. Hampton McFadden, Jr., Esq.
Haskell Slaughter & Young, L.L.C.
1200 AmSouth/Harbert Plaza
1901 Sixth Avenue North
Birmingham, Alabama 35203
Facsimile: (205) 324-1133
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If to EPA:
Emergency Physician Associates, Inc.
307 South Evergreen Avenue
Woodbury, New Jersey 08096
Facsimile: (609) 845-9347
Attn: James R. George, M.D.
Personal and Confidential
with a copy to:
Sherman, Silverstein, Kohl, Rose & Podolsky
4300 Haddon Field Road, Suite 311
Pennsauken, New Jersey 08109
Attention: Daniel J. Barrison, Esq.
Facsimile: (609) 662-0165
All such communications shall be deemed to have been delivered on the date of
hand delivery or on the next business day following the deposit of such
communications with the overnight courier.
10.3 Further Assurances. Each party hereby agrees to perform any
further acts and to execute and deliver any documents which may be reasonably
necessary to carry out the provisions of this Plan of Merger.
10.4 Indemnification. MedPartners/Mullikin and Subsidiary agree that
all rights to indemnification for acts or omissions occurring prior to the
Effective Time now existing in favor of the current or former directors or
officers of EPA as provided in its articles of incorporation or bylaws shall
survive the Merger and shall continue in full force and effect in accordance
with their terms. The provisions of this Section 10.4 are intended to be for the
benefit of, and shall be
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enforceable by, each such indemnified party, and each such indemnified party's
heirs and representatives.
10.5 Governing Law. This Plan of Merger shall be interpreted, construed
and enforced in accordance with the laws of the State of Delaware, applied
without giving effect to any conflicts-of-law principles.
10.6 "Including". The word "including", when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific terms or matters as provided immediately following the
word "including" or to similar items or matters, whether or not non-limiting
language (such as "without limitation", "but not limited to", or words of
similar import) is used with reference to the word "including" or the similar
items or matters, but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest possible scope of the
general statement, term or matter.
10.7 "Knowledge", "To the knowledge", "to the best knowledge,
information and belief", or any similar phrase shall be deemed to refer to the
knowledge of the Chairman of the Board, Chief Executive Officer or Chief
Financial Officer of a party and to include the assurance that such knowledge is
based upon a reasonable investigation, unless otherwise expressly provided.
10.8 "Material adverse change" or "material adverse effect" means, when
used in connection with EPA or MedPartners/Mullikin, any change, effect, event
or occurrence that has, or
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is reasonably likely to have, individually or in the aggregate, a material
adverse impact on the business or financial position of such party and its
subsidiaries taken as a whole (which in the case of EPA, shall include Med/Law,
Hospital Healthcare and Medecon); provided, however, that "material adverse
change" and "material adverse effect" shall be deemed to exclude the impact of
(i) changes in generally accepted accounting principles, (ii) changes in
applicable law, and (iii) any changes resulting from any restructuring or other
similar charges or write-offs taken by EPA with the consent of
MedPartners/Mullikin; provided, however, that no such charges or write-offs
will be taken if such would adversely affect pooling-of-interests accounting
treatment for the Merger. Moreover, it shall not be deemed a "material adverse
change" or "material adverse effect" so long as future financial performance
shall be consistent with discussions between the parties in connection with the
Merger.
10.9 "Hazardous Materials". The term "Hazardous Materials" means any
material which has been determined by any applicable governmental authority to
be harmful to the health or safety of human or animal life or vegetation,
regardless of whether such material is found on or below the surface of the
ground, in any surface or underground water, airborne in ambient air or in the
inside any structure built or located upon or below the surface of the ground or
in building materials or in improvements of any structures, or in any personal
property located or used in any such structure, including, but not limited to,
all hazardous substances, imminently hazardous substances, hazardous wastes,
toxic substances, hazardous wastes, pollutants and contaminants from time to
time defined, listed, identified, designated or classified as such under any
Environmental laws (as defined in Section 10.10) regardless of the quantity of
any such material.
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10.10 Environmental Laws. The term "Environmental Laws" means any
federal, state or local statute, regulation, rule or ordinance, and any judicial
or administrative interpretation thereof, regulating the use, generation,
handling, storage, transportation, discharge, emission, spillage or other
release of Hazardous Materials or relating to the protection of the environment.
10.11 Captions. The captions or headings in this Plan of Merger are
made for convenience and general reference only and shall not be construed to
describe, define or limit the scope or intent of the provisions of this Plan of
Merger.
10.12 Integration of Exhibits. All exhibits attached to this Plan of
Merger as if fully set forth herein, and all statements appearing therein shall
be deemed disclosed for all purposes and not only in connection with the
specific representation in which they are explicitly referenced.
10.13 Entire Agreement. This instrument, including all exhibits
attached hereto and the Confidentiality Agreement contain the entire agreement
of the parties and supersede any and all prior or contemporaneous agreements
between the parties, written or oral, with respect to the transactions
contemplated hereby. Such agreement may not be changed or terminated orally, but
may only be changed by an agreement in writing signed by the party or parties
against whom enforcement of any waiver, change, modification, extension,
discharge or termination is sought.
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10.14 Counterparts. This Plan of Merger may be executed in several
counterparts, each of which, when so executed, shall be deemed to be an
original, and such counterparts shall, together constitute and be one and the
same instrument.
10.15 Binding Effect. This Plan of Merger shall be binding on, and
shall inure to the benefit of, the parties hereto, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Plan of Merger. No party may assign any right or
obligation hereunder without the prior written consent of other parties.
10.16 No Rule of Construction. The parties acknowledge that this Plan
of Merger was initially prepared by MedPartners/Mullikin, and that all parties
have read and negotiated the language used in this Plan of Merger. The parties
agree that, because all parties participated in negotiating and drafting this
Plan of Merger, no rule of construction shall apply to this Plan of Merger which
construes ambiguous language in favor of or against any party by reason of that
party's role in drafting this Plan of Merger.
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IN WITNESS WHEREOF, MedPartners/Mullikin, the Subsidiary, Hospital
Healthcare and EPA have caused this Plan and Agreement of Merger to be executed
by their respective duly authorized officers, all as of the day and year first
above written.
MEDPARTNERS/MULLIKIN, INC.
By /s/ Harold O. Knight
----------------------------------------
Harold O. Knight, Jr.
Executive Vice President and
Chief Financial Officer
EPA MERGER CORPORATION
By /s/ Harold O. Knight
----------------------------------------
Harold O. Knight, Jr.
Vice President and Treasurer
HOSPITAL HEALTHCARE SERVICES, P.A.
By /s/ James E. George
----------------------------------------
James E. George, M.D.
President
MED/LAW PUBLISHERS, INC.
By /s/ James E. George
----------------------------------------
James E. George, M.D.
President
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MEDECON, INC.
By /s/ James E. George
----------------------------------------
James E. George, M.D.
President
EMERGENCY PHYSICIAN ASSOCIATES, P.A.
By /s/ James E. George
----------------------------------------
James E. George, M.D.
President
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CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
EMERGENCY PHYSICIAN ASSOCIATES, INC.
To: The Secretary of State "FEDERAL EMPLOYEE IDENTIFICATION NO."
State of New Jersey
Pursuant to the provisions of Section 14A:9-2(4) and Section
14A:9-4(3), Corporations, General, of the New Jersey Statutes, the undersigned
corporation executes the following Certificates of Amendment to its Certificate
of Incorporation:
1. The name of the corporation is
Emergency Physician Associates, Inc.
2. The following amendment to the Certificate of Incorporation was
approved by the directors and thereafter duly adopted by the shareholders of the
corporation on this 1st day of July, 1996:
RESOLVED, That the Certificate of Incorporation be amended in part to
read as follows:
FIRST: The name of the corporation is:
EPA, Inc.
3. The number of shares outstanding at the time of adoption of the
amendment was 50. The total number of shares entitled to vote there on was 50.
4. The number of shares voting for and against such amendment is as
follows:
Number of Shares Voting Number of Shares Voting
For Amendment Against Amendment
50 -0-
Dated this 1st day of July, 1996.
EMERGENCY PHYSICIAN ASSOCIATES, INC.
By: /s/ James E. George
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James E. George, M.D., President
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CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
EPA, Inc.
To: The Secretary of State "FEDERAL EMPLOYEE IDENTIFICATION NO."
State of New Jersey
Pursuant to the provisions of Section 14A:9-2(4) and Section
14A:9-4(3), Corporations, General, of the New Jersey Statutes, the undersigned
corporation executes the following Certificates of Amendment to its Certificate
of Incorporation:
1. The name of the corporation is
EPA, Inc.
2. The following amendment to the Certificate of Incorporation was
approved by the directors and thereafter duly adopted by the shareholders of the
corporation on this 30th day of July, 1996:
RESOLVED, That the Certificate of Incorporation be amended in part to
read as follows:
FIRST: The name of the corporation is:
Emergency Physician Associates, Inc.
3. The number of shares outstanding at the time of adoption of the
amendment was 100. The total number of shares entitled to vote there on was 100.
4. The number of shares voting for and against such amendment is as
follows:
Number of Shares Voting Number of Shares Voting
For Amendment Against Amendment
100 -0-
Dated this 30th day of July, 1996.
By: /s/ James E. George
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James E. George, M.D., President
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