Exhibit 2.2
ASSET PURCHASE AGREEMENT
BY AND AMONG
TLC VISION (USA) CORPORATION,
FREDERIC B. KREMER, M.D., P.C.,
AND
FREDERIC B. KREMER, M.D.,
DATED AS OF JULY 11, 2005
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of July
11, 2005, by and among Frederic B. Kremer, M.D., P.C., a Pennsylvania
professional corporation ("Practice"), and Frederic B. Kremer, M.D. ("Kremer")
on the one hand and TLC Vision (USA) Corporation, a Delaware corporation ("TLC")
on the other hand. TLC, Practice and Kremer are referred to collectively herein
as the "Parties."
WITNESSETH:
WHEREAS, Practice is a Pennsylvania professional corporation which owns the
assets which are used by and/or result from the practice of medicine by its
employed physicians;
WHEREAS, TLC has agreed to acquire the Purchased Assets (as hereinafter
defined) pursuant to the terms of this Agreement;
WHEREAS, simultaneously with the Closing of the Contemplated Transactions,
TLC, Eyes of the Future, P.C., a Pennsylvania professional corporation ("EOF"),
and Frederic B. Kremer, M.D., shall consummate a transaction pursuant to which
certain of the assets of EOF will be sold to TLC (the "EOF Transaction
Documents");
WHEREAS, simultaneously with the Closing of the Contemplated Transactions,
TLC shall transfer certain assets purchased under the EOF Transaction Documents
and used in connection with EOF's ambulatory surgery center to DelVal ASC, LLC,
a Delaware limited liability company wholly owned by TLC (the "ASC LLC") and
certain of the other assets purchased under the EOF Transaction Documents and
used in connection with EOF's laser refractive facilities (the "Facilities
Assets") to TLC Management (Delaware Valley), LLC (the "Management LLC");
WHEREAS, simultaneously with the Closing of the Contemplated Transactions,
Michael Aronsky, M.D., Carol Hoffman, M.D., George Pronesti, M.D. and Anthony C.
Zacchei, M.D. (collectively referred to as the "Investor Physicians") are
consummating a transaction pursuant to which the Investor Physicians shall
purchase an eighteen percent (18%) interest in the aggregate in each of the ASC
LLC and the Management LLC from TLC or an Affiliate of TLC (the "LLC Purchase
Transaction Documents"); and
WHEREAS, the Parties anticipate that the transaction contemplated by this
Agreement will further certain of their business objectives;
WHEREAS, the Parties desire to set forth in writing the terms and
conditions under which the transactions contemplated by this Agreement will be
consummated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Parties, it is agreed as
follows:
DEFINITIONS.
"Accounts Receivable" means all accounts and any and all rights to payment
of money or other forms of consideration of any kind (whether classified under
the Uniform Commercial Code as accounts, chattel paper, general intangibles or
otherwise) for goods sold or leased or for services rendered by Practice, or any
physician, optometrist, or other Person acting in the name of and on behalf of
Practice, including, but not limited to, accounts receivable, proceeds of any
letters of credit naming Practice as beneficiary, chattel paper, insurance
proceeds related to claims made for events occurring on or prior to the Closing
date and which relate to the personal property included in the Purchased Assets,
contract rights, notes, drafts, instruments, documents, acceptances and all
other debts, obligations and liabilities of whatever form from any other Person.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Agreement" has the meaning set forth in the preface above.
"Applicable Laws" has the meaning set forth in Section 3(r) below.
"ASC LLC" has the meaning set forth in the preface above.
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"Assumed Contracts" includes all of Practice's rights and interests in and
to and obligations under the following contracts and agreements:
any and all leaseholds and subleaseholds in real property,
improvements, fixtures, and fittings thereon, and easements, rights-of-way, and
other appurtenances and hereditaments benefiting same (such as appurtenant
rights in and to public streets), as described on Schedule 1(a) attached hereto
(the "Real Property Leases");
any and all leases or subleases of equipment or other personal
property, and rights thereunder as described on Schedule 1(b) attached hereto;
and
any and all agreements, contracts, indentures, mortgages, instruments,
Security Interests, guaranties, other similar arrangements, and rights
thereunder and any other agreement or contract set forth on Schedule 1(c); and
"Assumed Liabilities" has the meaning set forth in Section 2(b) below.
"CHAMPUS" means the Civilian Health and Medical Program of the Uniformed
Services.
"Closing" has the meaning set forth in Section 2(d) below.
"Closing Date" has the meaning set forth in Section 2(d) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contemplated Transactions" means all of the transactions contemplated by
this Agreement.
"Delaware Limited Liability Company Act" means the Delaware Limited
Liability Company Act, as amended, Title 6, Chapter 18 of the General Laws of
the State of Delaware.
"Effective Time" means 12:01 a.m. the day after the Closing Date.
"Employee Benefit Plans" has the meaning set forth in Section 3(p)(i) below.
"Environmental Laws" means all federal, state, and local laws, rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder and other governmental requirements relating to pollution,
control of chemicals, storage and handling of petroleum products, management of
waste (including biohazardous or biomedical waste), discharges of materials into
the environment, health, safety, natural resources, and the environment,
including laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials or wastes into ambient air, surface water, ground water, or
lands or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes.
"EOF Transaction Documents" has the meaning set forth in the premises.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Excluded Assets" means (a) the articles of incorporation, taxpayer and
other identification numbers, seals, minute books, transfer books, and other
documents relating to the organization, maintenance, and existence of Practice
as a professional corporation, (b) employment or noncompete agreements between
Practice and those licensed medical doctors and optometrists under contract with
Practice to provide medical services to Practice patients, (c) all patient
records and patient lists, (d) all insurance policies of Practice and all claims
arising thereunder and all prepaid expenses on malpractice insurance premiums,
(e) the inventories, cash, and Accounts Receivable disposed of, canceled,
expended or collected, as the case may be, by Practice after the date hereof and
prior to the Closing in the Ordinary Course of Business, (f) personal property
of individual employees which is not included on the financial statements of
Practice, (g) Practice's cash on hand as of the Closing Date, (h) Practice's
third party payor agreements, (i) all drugs owned by Practice, and (j) any
rights of Practice under this Agreement or any related document or under any
other agreement between Practice on the one hand, and TLC on the other hand
entered into on or after the date of this Agreement, (k) all Employee Benefit
Plans or other pension or profit sharing plans of Practice, (l) all interests in
real property owned by Practice (excluding leasehold or subleasehold interests),
(m) the names "Dr. Frederic B. Kremer" and "Kremer" other than the use of such
names with respect to the provision of professional ophthalmology services or
optometric professional services, refractive surgical services, eyeglasses and
other eyewear, and any other healthcare services related to diseases and surgery
of the eye; and (n) the property and assets expressly designated on Schedule
1(d).
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"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"Governmental Body" means any:
(a) Nation, state, county, city, town, burrow, village, district or
other jurisdiction;
(b) Federal, state, local, municipal, foreign or other government;
(c) Governmental or quasi-governmental authority of any nature
(including any agency, branch, department, board, commission,
court, tribunal or other entity exercising governmental or
quasi-governmental powers);
(d) Multi-national organization or body;
(e) Body exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police,
regulatory or taxing authority or power; or
(f) Official of any of the foregoing.
"Hazardous Materials" has the meaning set forth in Section 3(s) below.
"Health Care Law" means all federal, state or local laws, statutes, codes,
ordinances, regulation manuals or principles of common law relating to
healthcare regulatory matters, including without limitation (i) 42 U.S.C.
Sections 1320a-7, 7a and 7b, which are commonly referred to as the "Federal
Anti-Kickback Statute"; (ii) 42 U.S.C. Section 1395nn, which is commonly
referred to as the "Stark Statute"; (iii) 31 U.S.C Sections 3729-3733, which is
commonly referred to as the "Federal False Claims Act"; (iv) Titles XVIII and
XIX of the Social Security Act, implementing regulations and program manuals;
and (v) 42 U.S.C. Sections 1320d-1320d-8 and 42 C.F.R. Sections 160, 162 and
164, which is commonly referred to as HIPAA.
"Indemnified Person" means any Person entitled to indemnity under this
Agreement.
"Investor Physician" has the meaning set forth in the preface above.
"IRS" means the Internal Revenue Service.
"Knowledge" of a particular fact or other matter by an individual means the
actual knowledge of such individual. EOF shall be deemed to have Knowledge of a
particular fact or matter if Kremer, Jim Staats or Tara Hopewell has, or at any
time had, Knowledge of that fact or other matter. TLC shall be deemed to have
the Knowledge of a particular fact or matter if James C. Wachtman, Steve Rasche,
Bob Ryan, Bill Leonard or Patty Larson has, or at any time had, Knowledge of
that fact or other matter.
"Liability" means with respect to any Person, any liability or obligation
of such Person of any kind, character or description, whether known or unknown,
absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated
or unliquidated, secured or unsecured, joint or several, due or to become due,
vested or unvested, executory, determined, determinable or otherwise, and
whether or not the same is required to be accrued on the financial statements of
such Person.
"Loss" has the meaning set forth in Section 9(b) below.
"Management LLC" means TLC Management (Delaware Valley), LLC, a Delaware
limited liability agreement and wholly owned subsidiary of TLC.
"Management Co. Operating Agreement" means the Limited Liability Company
Agreement of TLC Management (Delaware Valley), LLC, as defined in the Delaware
Limited Liability Company Act.
"Material Adverse Effect" or "Material Adverse Change" means any effect or
change that would be materially adverse to the business, assets, condition
(financial or otherwise), operating results, operations, or business prospects
of EOF taken as a whole except for (i) effects or changes that are generally
applicable to the industries or markets in which EOF operates; (ii) changes in
the United States or world financial markets or general economic conditions;
(iii) effects arising from war or terrorism; or (iv) the public announcement of
the Contemplated Transactions.
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"Medicaid" means any state program pursuant to which health care providers
are paid or reimbursed for care given or goods afforded to indigent persons and
administered pursuant to a plan approved by the Centers for Medicare and
Medicaid Services under Title XIX of the Social Security Act.
"Medical Waste" includes, but is not limited to, pathological waste, blood,
sharps, wastes from surgery or autopsy, dialysis waste, including contaminated
disposable equipment and supplies, cultures and stock of infectious agents and
associated biological agents, contaminated animals, isolation wastes,
contaminated equipment, laboratory waste, various other biological waste and
discarded materials contaminated with or exposed to blood, excretion or
secretion from human beings or animals, and any substance, pollutant, material
or contaminant listed or regulated under the Medical Waste Tracking Act of 1988,
42 U.S.C. Sections 6992, et seq.
"Medical Waste Law" means the Medical Waste Tracking Act of 1988, as
amended, the U.S. Public Vessel Medical Waste Anti-Dumping Act of 1988, 33
U.S.C.A. Sections 2501, et seq., the Marine Protection, Research and Sanctuaries
Act of 1972, 33 U.S.C.A. Sections 1401, et seq., the Occupational Safety and
Health Act, 29 U.S.C.A. Sections 651, et seq., the United States Department of
Health and Human Services, National Institute for Occupational Self-Safety and
Health Infectious Waste Disposal Guidelines, Publication No. 88-119, all
regulations and orders issued pursuant to any of the foregoing, and any other
federal, state, regional, county, municipal or other local laws, regulations and
ordinances insofar as they purport to regulate Medical Waste or impose
requirements relating to Medical Waste.
"Medicare" means any medical program established under Title XVIII of the
Social Security Act and administered by the Centers for Medicare and Medicaid
Services.
"Necessary Authorizations" means, with respect to Practice, all
certificates of need, authorizations, certifications, consents, approvals,
permits, licenses, notices, accreditations and exemptions, filings and
registrations, and reports required by Applicable Laws, which are required or
necessary to the lawful ownership and operation of Practice's business.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice.
"Parties" has the meaning set forth in the preface above.
"PBGC" has the meaning set forth in Section 3(p)(ii) below.
"Pennsylvania Professional Corporation Act" means the Pennsylvania
Professional Corporation Act of the State of Pennsylvania, as amended.
"Permitted Encumbrances" has the meaning set in Section 2(b).
"Person" means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a Governmental Body (or any department, agency,
or political subdivision thereof).
"Practice" has the meaning set forth in the preface above.
"Proceeding" means any action, arbitration, audit, hearing, investigation,
litigation or suit (whether civil, criminal, administrative, judicial or
investigative, whether formal or informal, whether public or private) commenced,
brought, conducted or heard by or before, or otherwise involving, any
governmental body or arbitrator.
"Provider" has the meaning ascribed to it in the Services Agreement.
"Provider Employment Agreement" has the meaning ascribed to it in the
Services Agreement.
"Purchase Price" has the meaning set forth in Section 2(a) below.
"Purchased Assets" means all of Practice's right, title, and interest in
and to the following assets of Practice owned as of the Closing Date:
any and all furniture, fixtures, office furnishings, tools and similar
property, equipment and other capital assets of Practice, including but not
limited to the items described on Schedule 1(b) attached hereto;
any and all inventory of supplies, janitorial and office supplies, and
other disposables and consumables on hand or under order on the Closing Date
(excluding drugs);
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any and all intangible assets, goodwill, going concern value, service
marks and service names (whether registered or unregistered), and applications
therefore, all rights in and to internet domain names presently used by
Practice, telephone numbers presently used by Practice, all intellectual
property used in connection with the operations of Practice (including the names
"Dr. Frederic B. Kremer" and "Kremer" with respect to the provision of
professional ophthalmology services or optometric professional services,
refractive surgical services, eyeglasses and other eyewear, and any other
healthcare services related to diseases and surgery of the eye) and goodwill
associated therewith, and licenses and sublicenses granted and obtained with
respect thereto (not necessary for the practice of medicine), and rights
thereunder, remedies against infringements thereof, and rights to protection of
interests therein under the laws of all jurisdictions in which EOF operates;
any and all claims, deposits, prepayments, refunds, causes of action,
choses in action, rights of recovery, rights of set off, and rights of
recoupment which have accrued as a result of the operation of business of
Practice (except any such item relating to the payment of Taxes);
any and all franchises, approvals, permits, licenses (not necessary
for the practice of medicine), orders, registrations, certificates, variances,
and similar rights obtained from governments and governmental agencies which are
assignable;
any and all books, records, ledgers, files, documents, correspondence,
lists, plats, architectural plans, drawings, and specifications, creative
materials, advertising and promotional materials, studies, reports, and other
printed or written materials (excluding patient medical records), and other
writings used in connection with the operations of Practice whatsoever;
data processing programs, software programs, computer printouts,
databases and hardware and related items used in the conduct of the business of
Practice, including, without limitation, accounting, invoices, auditing and data
processing bases and programs;
Practice's Accounts Receivable which shall be delivered to TLC upon
receipt by Practice; and
all other assets, personal property, tangible and intangible personal
property used by Practice in connection with the operation of its business
(except for the Excluded Assets).
The term "Purchased Assets" shall not include any specific item included
within the definition of Excluded Assets set forth herein.
"Real Property Leases" has the meaning set forth within the definition of
Assumed Contracts in this Section 1.
"Requisite Practice Approval" means the affirmative vote of the holders of
the requisite percentage of the shares of Practice which is required by the
Pennsylvania Professional Corporation Act to approve the transactions
contemplated by this Agreement.
"Requisite TLC Approval" means the affirmative vote of a majority of the
TLC directors in favor of this Agreement.
"Retained Liabilities" has the meaning ascribed to it in Section 2(b).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge
or other security interest other than (a) mechanic's, materialmen's or similar
lien, (b) liens for taxes not yet due and payable or for taxes that the taxpayer
is contesting in good faith through appropriate proceedings, (c) purchase money
liens and liens securing rental payments under capital lease arrangements, and
(d) other liens arising in the Ordinary Course of Business and not incurred in
connection with the borrowing of money.
"Services Agreement" means that certain Service Agreement dated as of the
Closing Date by and among Management LLC and the Successor Medical Practice
attached hereto as Exhibit 1(b).
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"Subsidiary" means any corporation with respect to which a specified Person
(or a Subsidiary thereof) owns a majority of the common stock or has the power
to vote or direct the voting of sufficient securities to elect a majority of the
directors.
"Successor Medical Practice" shall mean Delaware Valley Vision Associates
Group, LLC, which is a party to the Services Agreement.
"Third-Party Claim" means any claim against any Indemnified Person by a
Person that is not a party to this Agreement, whether or not involving a
Proceeding.
"TLC" has the meaning set forth in the preface above.
"TLC - DEL" means TLC Management (Delaware Valley), LLC, a Delaware limited
liability company and wholly owned subsidiary of TLC.
"TLC - DEL Operating Agreement" means the Limited Liability Company
Agreement of TLC - DEL, as defined in the Delaware Limited Liability Company
Act.
Basic Transaction.
Purchase and Sale of Assets. At the Closing, on and subject to the
terms and conditions of this Agreement, Practice agrees to transfer, sell,
convey and deliver to TLC and TLC agrees to purchase, all of the Purchased
Assets and Practice agrees to assign and TLC agrees to assume or cause an
Affiliate to assume all of the Assumed Contracts for a price equal to cash in
the amount of Four Hundred Sixteen Thousand and 00/100 Dollars ($416,000) (the
"Purchase Price") to be paid or satisfied as set forth in Section 2(c).
Assumption of Liabilities.
TLC or an Affiliate of TLC shall assume at the Effective Time,
and shall perform or discharge on or after the Effective Time, only
(A) the contracts, leases, commitments, obligations and liabilities of
Practice which are included in the definition of Assumed Contracts;
(B) Practice's trade accounts payable and other short-term obligations
incurred in the Ordinary Course of Business no more than thirty (30)
days prior to the Closing Date; and (C) the Security Interests
described on Schedule 2(b) (the "Permitted Encumbrances") (the
foregoing (A), (B) and (C) are hereinafter collectively referred to as
the "Assumed Liabilities"), and neither TLC nor any of its Affiliates
shall assume any other liabilities of Practice.
Other than the Assumed Liabilities, neither TLC nor any of its
Affiliates shall be deemed to have assumed, nor shall TLC or any of
its Affiliates assume any Liability of Practice including but not
limited to: (A) any Liability which may be incurred by reason of any
breach of or default under contracts, leases, commitments or
obligations of Practice which occurred prior to the Effective Time;
(B) any Liability for any employee benefits payable to employees of
Practice, including, but not limited to, liabilities arising under any
Employee Benefit Plan of Practice; (C) any Liability based upon or
arising out of a violation of any laws by Practice, including, without
limiting the generality of the foregoing, any such liability which may
arise in connection with agreements, contracts, commitments or
provision of services by Practice or any Physician Owner; (D) any
Liability based upon or arising out of any tortious or wrongful
actions of Practice or any Physician Owner, (E) any Liability for the
payment of any taxes imposed by law on Practice arising from any
activities of Practice prior to the Effective Time or by reason of the
transactions contemplated by this Agreement; (F) any Liability for the
payment of legal fees incurred by Practice prior to the Closing; (G)
any term debt of Practice not included in the Permitted Encumbrances;
or (H) any trade accounts payable not included in the Assumed
Liabilities (collectively the "Retained Liabilities").
Purchase Price. TLC shall pay the Purchase Price at the Closing in
cash, payable by wire transfer or delivery of immediately available funds.
The Closing. The closing of the transaction (the "Closing") shall take
place at the offices of Blank Rome LLP, One Logan Square, Philadelphia,
Pennsylvania, commencing at 9:00 a.m. local time on July 11, 2005 (the "Closing
Date").
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Deliveries at Closing. At the Closing, (i) TLC will deliver to
Practice the various certificates, instruments, and documents referred to in
Section 7(b) below; (ii) Practice will deliver to TLC the various certificates,
instruments, and documents referred to in Section 7(a) below.
Proration. The following prorations among the Parties shall be made as
of the Closing Date, with Practice remaining liable to the extent such items
relate to any time period up to the Closing Date and TLC being liable to the
extent such items relate to periods on and after the Closing Date:
Any ad valorem taxes, including, without limitation, personal
property taxes and assessments, and other taxes, if any, on or with
respect to the Purchased Assets,
Rents, additional rents, taxes and other items payable by
Practice under any lease, license, permit, contract or any other
agreement or arrangement to be assigned to or assumed by TLC, and
The amount of rents, taxes, and charges for sewer, water, fuel,
telephone, electricity, and other utilities; provided, that if
practicable, a meter reading shall be taken on the Closing Date and
the respective obligations of the Parties determined in accordance
with such readings.
To the extent possible, the net amount of all such prorations will be
settled in cash at the Closing. If the actual expense of any of the above items
for the billing period in which the Closing Date falls is not known at the
Closing, the proration shall be made based on the expense incurred in the
previous billing cycle, for expenses billed less often than quarterly, and on
the average expense incurred in the preceding three (3) billing periods, for
expenses billed quarterly or more often.
Taxes and Expenses. Practice shall be responsible for any business,
occupation, withholding or similar tax or taxes of any kind related to
Practice's business for any period prior to the Closing Date. All applicable
sales, use (excluding use taxes associated with the transfer of Purchased Assets
by TLC into or out of any State in which Practice presently operates) and
tangible taxes, documentary stamp taxes, filing and recording costs and other
transfer taxes, costs and fees relating to the transfer of title to the
Purchased Assets, and the consummation of the transactions described herein,
shall be paid by Practice.
Allocation. The Parties agree to allocate the Purchase Price among the
Purchased Assets (and all other capitalizable costs) for tax purposes based upon
the book value of the assets with the excess of the Purchase Price over such
amount allocated to goodwill.
Employees. As of the Closing Date, Practice shall terminate all the
employees of Practice. TLC or an Affiliate of TLC may offer to hire such
terminated employees (other than Providers) as it desires. Each Provider listed
on Schedule 2(i) to this Agreement shall become an employee of the Successor
Medical Practice and shall execute a Provider Employment Agreement. Practice
shall retain responsibility under any and all employment agreements with respect
to terminated employees. Practice hereby covenants and agrees that it will take
whatever steps are necessary to pay or fund completely or reserve completely for
any accrued benefits, where applicable, or vested accrued benefits for which
Practice or any entity might have any liability whatsoever arising from any
salary, wage, benefit, bonus, sick leave, insurance, employment tax or similar
liability of Practice to any employee or other person or entity (including,
without limitation, any Employee Benefit Plan of Practice and any liability
under employment contracts with Practice) allocable to services performed prior
to the Closing Date. Practice acknowledges that the purpose and intent of this
covenant is to assure that TLC shall have no liability whatsoever at any time in
the future with respect to any of Practice's employees during the term of their
employment by Practice, including, without limitation, any Employee Benefit Plan
of Practice.
Practice shall transfer all of its patient records and inventory of
drugs to the Successor Medical Practice on the Closing Date.
Representations and Warranties of Practice and Kremer. Practice and
Kremer represent and warrant to TLC that the statements contained in this
Section 3 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Section 3).
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Organization, Qualification, and Power. Practice is a professional
corporation duly organized, validly existing, and in good standing under the
laws of the Commonwealth of Pennsylvania. Practice is duly authorized to conduct
business and is in good standing under the laws of each jurisdiction in which
the character or location of the properties owned or the business conducted by
Practice makes such qualification necessary. Practice has the full power and
authority to carry on the business in which it is engaged and to own and use the
properties owned, leased and used by it.
Ownership Interest of EOF. Schedule 3(b) sets forth the number of
shares of Practice issued and outstanding and the Person in whose name such
shares are issued. Except as set forth on Schedule 3(b), there are no other
shares, options, warrants or convertible debt of any form authorized or
outstanding.
Authorization of Transaction. Subject to obtaining any required
approvals from any Governmental Body, Practice has the full power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of Practice
and the Kremer, enforceable in accordance with its terms and conditions.
Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any Governmental Body,
professional regulatory organization or court to which Practice is subject or
any provision of the articles of incorporation or bylaws of Practice or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which Practice is a party or by which it is
bound or to which any of its assets is subject (or result in the imposition of
any Security Interest upon any of its assets). Practice is not required to give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any Governmental Body in order for Practice to consummate the
transactions contemplated by this Agreement.
Title; Condition. Practice has, or will have on the Closing Date,
legal and beneficial title to, or leasehold interest in, all of its tangible and
intangible property free and clear of any Security Interest other than the
Permitted Encumbrances. Except for real and personal property leased to or
licensed by Practice, Practice's tangible and intangible property (other than
service marks and service names) are not subject to any lien, lease, conditional
sales agreement, option, right of first refusal or any other encumbrance or
charge other than the Permitted Encumbrances. To the Knowledge of Practice,
Practice has legal and beneficial title to its service marks and service names
free and clear of any claims of any other Person.
Tangible Assets. Practice owns or leases all land, buildings,
machinery, equipment, and other tangible assets necessary for the conduct of its
business as presently conducted. Each tangible asset is free from defects has
been maintained in accordance with normal industry practice and is in operating
condition (subject to normal wear and tear).
Subsidiaries and Investments. Practice does not own, directly or
indirectly, any capital stock or other equity ownership or proprietary interest
in any other corporation, partnership, association, limited liability company,
trust, joint venture or other entity.
Financial Statements. Practice has delivered to TLC: (a) a combined
audited balance sheet of Practice and Eyes of the Future, P.C. ("EOF") as of
December 31, 2004 (including the notes thereto, the "Balance Sheet"), and the
related audited statements of income and cash flows for the fiscal year then
ended, including in each case the notes thereto, together with the report
thereon of Gocial Gerstein, LLC independent certified public accountants; (b)
combined audited balance sheets of Practice and EOF as of December 31 in each of
the fiscal years 2000 through 2003 and the related audited statements of income
for each of the fiscal years then ended, including in each case the notes
thereto; and (c) an unaudited balance sheet of Practice and EOF as of March 31,
2005, (the "Interim Balance Sheet") and the related statements of income for the
three (3) months then ended. Such financial statements fairly present (and the
financial statements delivered pursuant to Section 0 will fairly present) the
financial condition and the results of operations and cash flows of Practice and
EOF as of the respective dates and for the periods referred to in such financial
statements, all in accordance with GAAP, except with respect to the interim
statements which do not comply with GAAP due to the absence of notes and the
need for normal year-end adjustments. The financial
64
statements referred to in this Section and delivered pursuant to Section 0
reflect and will reflect the consistent application of such accounting
principles throughout the periods involved, except as disclosed, in the case of
the audited financial statements, in the notes to such financial statements. The
financial statements have been and will be prepared from and are in accordance
with the accounting records of Practice and EOF. Practice has also delivered to
TLC copies of all letters from Practice's auditors to Practice's board of
directors thereof during the thirty-six (36) months preceding the execution of
this Agreement, together with copies of all responses thereto.
No Changes Prior to Closing Date. During the period from December 31,
2004 through the date hereof Practice has not (i) incurred any liability or
obligation of any nature (whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or unliquidated and
whether due or to become due), except in the Ordinary Course of Business, (ii)
written off as uncollectible any notes or Accounts Receivable, except write-offs
in the Ordinary Course of Business charged to applicable reserves, (iii)
conducted its business in such a manner so as to increase its accounts payable
or so as to decrease its Accounts Receivable, other than in the Ordinary Course
of Business, (iv) granted any increase in the rate of wages, salaries, bonuses,
or other remunerations of any employee, except in the Ordinary Course of
Business, (v) canceled or waived any claims or rights of substantial value, (vi)
made any change in any method of accounting, (vii) except as provided on
Schedule 3(i), otherwise conducted its business or entered into any transaction,
except in the usual and ordinary manner and in the Ordinary Course of Business,
(viii) except as provided on Schedule 3(i), agreed, whether or not in writing,
to do any of the foregoing, or (ix) disposed of its assets other than in the
Ordinary Course of Business.
Other Contracts. Schedule 3(j) lists all contracts and other
agreements, whether written or oral, to which Practice is a party, except that
agreements described in subsections (i) and (ii) may be omitted if, and only if,
such agreements involve a commitment on an annual basis in amount less than
Fifteen Thousand Dollars ($15,000), including but not limited to:
any agreement for the lease of real or personal property to or
from any Person;
any agreement for the purchase or sale of supplies, products, or
other personal property or for the furnishing or receipt of services;
any agreement concerning a partnership, limited liability company
or joint venture;
any agreement with an ophthalmologist, optometrist or any other
health care provider;
any agreement under which Practice has created, incurred,
assumed, or guaranteed any indebtedness for borrowed money, or any
capitalized lease obligation pursuant to which it has imposed a
Security Interest in respect of any of its assets, tangible or
intangible;
any agreement concerning confidentiality or noncompetition;
any profit sharing, option, deferred compensation, severance, or
other plan or arrangement for the benefit of Pratice's current or
former owners, directors, partners, managers, officers, and/or
employees;
any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing severance
benefits;
any agreement pursuant to which Practice has advanced or loaned
any amount to any of its directors, officers, and employees;
any agreement pursuant to which the consequences of a default or
termination could have an adverse effect on the business, financial
condition, operations, results of operations, or future prospects of
Practice; or
any agreements with third party payors or other health plans for
the provision of health care services.
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Practice has delivered to TLC a correct and complete copy of each written
agreement listed on Schedule 3(j) (as amended through the Closing Date) and a
written summary setting forth the terms and conditions of each oral agreement
referred to on Schedule 3(j). With respect to each such agreement: (A) the
agreement is legal, valid, binding, enforceable, and in full force and effect
with respect to Practice and to the Knowledge of Practice is legal, valid,
binding, enforceable; and in full force and effect with respect to the other
parties thereto; (B) except as set forth on Schedule 3(j), no notice of this
Agreement or consent of any third party is required in order for Practice to
execute and deliver this Agreement or to consummate the transactions
contemplated hereby; (C) Except for the failure to obtain any third party
consents necessary to assign the Assumed Contracts or as otherwise described on
Schedule 3(j) Practice is not in breach or default, and no event has occurred
which with notice or lapse of time would constitute a breach or default,
modification, or acceleration under the agreement and to the Knowledge of
Practice and Kremer no other party is in breach or default, and no event has
occurred which with notice or lapse of time would constitute a breach or
default, or permit termination, modification, or acceleration, under the
agreement; and (D) to the Knowledge of Practice and Kremer no party has
repudiated any provision of the agreement. Practice acknowledges and agrees that
neither TLC nor any of its Affiliates shall have an obligation to assume and
neither TLC nor any of its Affiliates shall not assume Practice's obligations
under any agreement listed on Schedule 3(j) unless such obligation is also
listed on Schedules 1(a), (b) or (c).
Undisclosed Liabilities. Except as set forth on Schedule 3(k) Practice has
no uninsured liability (whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated, or unliquidated, and
whether due or to become due), including any liability, for taxes, except for
(i) liabilities set forth on the face of the Interim Balance Sheet (ii)
liabilities which have arisen after the date of the Interim Balance Sheet in the
Ordinary Course of Business (none of which results from, arises out of, relates
to, is in the nature of, or was caused by any breach of contract, breach of
warranty, tort, infringement, or violation of law) and (iii) liabilities under
certain contracts and agreements (except for liabilities which related to a
breach of such contracts or agreements) which either are disclosed on Schedule
3(j) or are not otherwise required to be disclosed.
Insurance; Malpractice. Schedule 3(l) contains a list of all policies or
binders of fire, liability, product liability, workers compensation, health and
other forms of insurance policies or binders currently in force insuring against
risks which will remain in full force and effect at least through the Closing
Date. Schedule 3(l) contains a description of all current malpractice liability
insurance policies of the Practice and Practice's professional employees.
Neither Practice, nor Practice's professional employees have, in the last three
(3) years, filed a written application for any insurance coverage relating to
Practice's business or property which has been denied by an insurance agency or
carrier. Practice and the Practice's professional employees have been
continuously insured for professional malpractice claims during the last three
(3) years. Schedule 3(l) also sets forth a list of all claims for any loss in
excess of Twenty-Five Thousand and no/100 Dollars ($25,000.00) per occurrence
filed by or against Practice or Practice's professional employees during the
three (3) year period immediately preceding the date hereof, including workers
compensation, general liability, environmental liability and professional
malpractice liability claims. Neither Practice nor Practice's professional
employees is in default with respect to any provision contained in any such
policy and none of them has failed to give any notice or present any claim under
any such policy in a due and timely fashion.
Litigation. Except as set forth on Schedule 3(m), there is no suit, action,
proceeding at law or in equity, arbitration, administrative proceeding or other
proceeding or investigation by any Governmental Body pending, or to the
Knowledge of Kremer and Practice threatened against, or affecting Practice or
any of the Purchased Assets or Assumed Contracts, or to the Knowledge of Kremer
and Practice against any physician or other health care professional engaged or
employed by Practice in his or her capacity as a physician or health care
professional or resulting or arising from his or her employment with Practice,
and to the Knowledge of Kremer and Practice there is no basis for any of the
foregoing. None of the actions, suits, proceedings, hearings, and investigations
set forth on Schedule 3(m) will result in a Material Adverse Change.
Tax Matters. All federal, state and other tax returns of Practice required
by law to be filed have been timely filed, and Practice has paid or adequately
provided for all taxes (including taxes on properties, income, franchises,
licenses, sales and payrolls) which have become due pursuant to such returns or
pursuant to any assessment, except for any taxes and assessments, the amount,
applicability or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which Practice has set aside on its
books adequate reserves. There are no tax liens on any of Practice's assets
except those with respect to taxes not yet due
66
and payable. There are no pending tax examinations of Practice's tax returns nor
has Practice received a revenue agent's report asserting a tax deficiency in the
last twelve (12) months. There are not now and will not be on the Closing Date,
any claims pending or asserted against Practice for unpaid taxes by any federal,
state or other governmental body. Practice has withheld from each payment made
to employees of Practice the amount of all taxes (including, but not limited to,
federal, state and local income taxes and Federal Insurance Contribution Act
taxes) required to be withheld therefrom and all amounts customarily withheld
therefrom, and has set aside all other employee contributions or payments
customarily set aside with respect to such wages and has paid or will pay the
same to, or has deposited or will deposit such payment with, the proper tax
receiving officers or other appropriate authorities.
Third-Party Relations. Practice has not received any written notice that
any material, supplier, employee or associated physician, optometrist or other
provider intends to cease doing business with Practice.
Employee Benefit Plans.
List of Plans. Schedule 3(p) contains an accurate and complete list of
all employee benefit plans ("Employee Benefit Plans") within the meaning of
Section 3(3) of ERISA, whether or not any Employee Benefit Plans are
otherwise exempt from the provisions of ERISA, established, maintained or
contributed to by Practice (including all employers (whether or not
incorporated) which by reason of common control are treated together with
Practice as a single employer within the meaning of Section 414 of the
Code) since September 2, 1974.
Status of Plans. Practice has never maintained and does not now
maintain or contribute to any Employee Benefit Plan subject to ERISA, which
is not in substantial compliance with ERISA or which has incurred any
accumulated funding deficiency within the meaning of Section 412 or 418B of
the Code, or which has applied for or obtained a waiver from the Internal
Revenue Service of any minimum funding requirement under Section 412 of the
Code or which is subject to Title IV of ERISA. EOF has not incurred any
liability to the Pension Benefit Guaranty Corporation ("PBGC") in
connection with any Employee Benefit Plan covering any employees of EOF or
ceased operations at any facility or withdrawn from any such Plan in a
manner which could subject it to liability under Section 4062(f), 4063 or
4064 of ERISA, and knows of no facts or circumstances which might give rise
to any liability of Practice to the PBGC under Title IV of ERISA which
could reasonably be anticipated to result in any claims being made against
Practice by the PBGC. Practice has not incurred any withdrawal liability
(including any contingent or secondary withdrawal liability) within the
meaning of Sections 4201 and 4202 of ERISA, to any Employee Benefit Plan
which is a Multiemployer Plan (as defined in Section 4001 of ERISA), and no
event has occurred, and there exists no condition or set of circumstances,
which represent a risk of the occurrence of any withdrawal from or the
partition, termination, reorganization or insolvency of any Multiemployer
Plan which would result in any liability of Practice.
Contributions. Full payment has been made of all amounts which
Practice is required, under applicable law or under any Employee Benefit
Plan or any agreement relating to any Employee Benefit Plan to which
Practice is a party, to have paid as contributions thereto as of the last
day of the most recent plan year of such Employee Benefit Plan ended prior
to the date hereof. Practice has made adequate provision for reserves to
meet contributions that have not been made because they are not yet due
under the terms of any Employee Benefit Plan or related agreements.
Benefits under all Employee Benefit Plans are as represented and have not
been increased subsequent to the date as of which documents have been
provided.
Tax Qualification. Each Employee Benefit Plan intended to be qualified
under Section 401(a) of the Code has been determined to be so qualified by
the Internal Revenue Service and, nothing has occurred since the date of
the last such determination which resulted or is likely to result in the
revocation of such determination.
Transactions. Practice has not engaged in any transaction with respect
to the Employee Benefit Plans which would subject it to a tax, penalty or
liability for prohibited transactions under ERISA or the Code nor have any
of its directors, officers or employees to the extent they or any of them
are fiduciaries
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with respect to such plans, breached any of their responsibilities or
obligations imposed upon fiduciaries under Title I of ERISA which would
result in any claim being made under or by or on behalf of any such plans
by any party with standing to make such claim.
Other Plans. Practice presently does not maintain any Employee Benefit
Plans or any other foreign pension, welfare or retirement benefit plans
other than those listed on Schedule 3(p) .
Documents. Practice has delivered or caused to be delivered to TLC
true and complete copies of (i) all Employee Benefit Plans as in effect,
together with all amendments thereto which will become effective at a later
date, as well as the latest IRS determination letter obtained with respect
to any such Employee Benefit Plan qualified under Section 401 or 501 of the
Code, and (ii) the most recently filed Form 5500 for each Employee Benefit
Plan required to file such form.
Employee Compensation. Practice has paid or discharged or will pay or
discharge or assume all liabilities for compensation and benefits to which all
its employees, including physician employees, are entitled through the Closing
Date, including but not limited to all salaries, wages, bonuses, incentive
compensation, payroll taxes, hospitalization and medical expenses, deferred
compensation, and vacation and sick pay, as well as any severance pay becoming
due as a result of the termination of certain of Practice's employees.
Compliance with Applicable Laws. Practice and its physician employees
(while employed by Practice) have operated in compliance with all federal,
state, county and municipal laws, constitutions, ordinances, statutes, rules,
regulations, including Health Care Law, and orders applicable thereto
("Applicable Laws"). Neither Practice, Kremer nor any physician employed by
Practice has received or made any payment or any remuneration whatsoever to
induce or encourage the referral of patients or the purchase of goods and/or
services as prohibited under any state law or Health Care Law, nor has any
governmental authority or third-party payor formally alleged in writing any
violation of Health Care Law by Practice or any physician employees of Practice
within the last seven (7) years. Without limiting the generality of the
foregoing:
Permits and Licenses. Practice and all physicians and other health
care professionals engaged or employed by Practice have all permits and
licenses and other Necessary Authorizations required by all Applicable Laws
to provide services in the manner historically provided by Practice; have
made all regulatory filings necessary for the conduct of Practice's
business; and are not in violation of any of said permitting or licensing
requirements, except where failure to secure such licenses, permits and
other Necessary Authorizations does not have an adverse effect on the
business of Practice or the physicians associated with Practice taken as a
whole.
Health Care Compliance. Practice is participating in or otherwise
authorized to receive reimbursement from Medicare and Medicaid and is a
party to other third-party payor agreements, if any, set forth in Schedule
3(j). All necessary certifications and contracts required for participation
in such programs are in full force and effect and have not been amended or
otherwise modified, rescinded, revoked or assigned, and to the Knowledge of
Practice and Kremer, no condition exists or event has occurred which in
itself or with the giving of notice or the lapse of time or both would
result in the suspension, revocation, impairment, forfeiture or non-renewal
of any such third-party payor program, except where such event does not
have an adverse effect on the business of Practice or the physicians
associated with Practice taken as a whole. Practice is in compliance with
the requirements of all such third-party payors. Practice and Practice's
physician employees do not have any financial relationship (whether
investment interest, compensation interest, or otherwise) with any entity
to which any of the foregoing refer patients, except for such financial
relationships that qualify for exceptions to state and federal laws
restricting physician referrals to entities in which they have a financial
interest.
Fraud and Abuse. Neither Practice, Kremer, nor any other physicians or
other health care professionals while employed by Practice, have engaged in
any activities which are prohibited under any Health Care Law, or the
regulations promulgated thereunder pursuant to such statutes, or related
state or local statutes or regulations, or which are prohibited by rules of
professional conduct, including the following: (a) knowingly and willfully
making or causing to be made a false statement or representation in any
application for any benefit or payment; (b) knowingly and willfully making
or causing to be made any
68
false statement or representation of a fact for use in determining rights
to any benefit or payment; (c) knowingly and willingly concealing any event
affecting the initial or continued right to receive any benefit or payment
with intent to fraudulently secure such benefit or payment either in an
amount or quantity greater than that which is due or authorized; or (d)
knowingly and willfully soliciting or receiving any remuneration (including
any kickback, bribe, or rebate), directly or indirectly, overtly or
covertly, in cash or in kind or offering to pay or receive such
remuneration (1) in return for referring an individual to a person for the
furnishing or arranging for the furnishing or any item or service for which
payment may be made in whole or in part by Medicare or Medicaid or (2) in
return for purchasing, leasing, or ordering or arranging for or
recommending purchasing, leasing or ordering any good, facility, service or
item for which payment may be made in whole or in part by Medicare or
Medicaid.
Practice Compliance. Practice has all licenses and permits necessary
to operate at the locations where it practices medicine in accordance with
the requirements of all Applicable Laws and has all Necessary
Authorizations for the use and operation of a medical practice, all of
which are in full force and effect. Schedule 3(r)(iv) lists all licenses
and permits held by Practice. There are no outstanding notices relating to
Practice issued by any Governmental Body or authority or third-party payor
requiring conformity or compliance with any Applicable Law or condition for
participation with such governmental authority or third-party payor, and
after reasonable and independent inquiry and due diligence and
investigation, Practice has neither received notice nor has any Knowledge
or reason to believe that such Necessary Authorizations may be revoked or
not renewed in the Ordinary Course of Business.
Environmental Matters.
To the Knowledge of Practice and Kremer, Practice is in compliance
with all applicable Environmental Laws.
Practice has not, in violation of applicable Environmental Laws,
authorized or conducted the disposal or release, or other handling of any
Medical Waste, hazardous substance, hazardous waste, hazardous material,
hazardous constituent, toxic substance, pollutant, contaminant, asbestos,
radon, polychlorinated biphenyls ("PCBs"), petroleum product or waste
(including crude oil or any fraction thereof), natural gas, liquefied gas,
synthetic gas, biohazardous or biomedical material, or other material
defined, regulated controlled or potentially subject to any remediation
requirement under any Environmental Law (collectively "Hazardous
Materials"), on, in, under or affecting any property owned or leased by
Practice.
Practice has, and is in compliance with, all licenses, permits,
registrations, and Governmental Body authorizations necessary to operate
under all applicable Environmental Laws. Schedule 3(r)(iv) lists all such
licenses, permits, registrations and Governmental Body authorizations held
by Practice and required by any Environmental Law.
Practice has not received any written or oral notice from any
Governmental Body or entity or any other Person and there is no pending or
to the Knowledge of Practice threatened claim, litigation or any
administrative agency proceeding that: (a) alleges a violation of any
Environmental Law(s) by Practice or, with respect to the Purchased Assets
or any property owned or leased by Practice, (b) alleges that Practice is a
liable party or potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section
9601, et seq., or any analogous state law, (c) has resulted or could result
in the attachment of an environmental lien on any of the Purchased Assets
or property owned or leased by Practice or (d) alleges that Practice is
liable for any contamination of the environment, contamination of any
property owned or leased by Practice, damage to natural resources, property
damage, or personal injury based on its activities or the activities of any
predecessor or third parties involving Hazardous Materials, whether arising
under the Environmental Laws, common law principles, or other legal
standards.
With respect to the generation, transportation, treatment, storage and
disposal or other handling of Medical Waste, Practice has complied with all
Applicable Laws.
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Rates and Reimbursement Policies. The jurisdictions in which Practice is
operating do not currently impose any restrictions or limitations on rates which
may be charged to private pay patients receiving services of the type presently
provided by Practice. Practice does not have any rate appeal currently pending
before any governmental authority or any administrator of any third-party payor
program.
Accounts Receivable. All Accounts Receivable that are reflected on the
Balance Sheet or the Interim Balance Sheet or in the accounting records of
Practice as of the Closing Date represent or will represent valid obligations
arising from sales actually made or services actually performed by Practice or
its professional employees on behalf of Practice in the Ordinary Course of
Business. Except to the extent paid prior to the Closing Date, such Accounts
Receivable are or will be as of the Closing Date current and collectable net of
the respective reserves shown on the Balance Sheet or the Interim Balance Sheet
(which reserves are adequate and calculated consistent with past practice). To
the Knowledge of Practice and Kremer, there is no contest, claim, defense or
right of setoff against such Accounts Receivable, except for customary third
party payor allowances.
Guaranties. Practice is not a guarantor and otherwise is not liable for any
liability or obligation (including indebtedness) of any other Person.
Powers of Attorney. There are no outstanding powers of attorney executed by
Practice, except as may be contained in financing documents or security
agreements listed on Schedule 3(j) and provided to TLC.
Brokers' Fees. Except as set forth on Schedule 3(x), Practice does not have
any Liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this
Agreement.
Full Disclosure. To the Knowledge of Practice and Kremer, no representation
or warranty made by Practice in this Agreement contains or will contain any
untrue statement of a fact or omits or will omit to state a fact necessary to
make the statements contained herein or therein not misleading.
Representations and Warranties of TLC. TLC represents and warrants to
Practice and Kremer that the statements contained in this Section 4 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 4).
Organization. TLC is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction in which the character or location
of the properties owned or the business conducted by TLC makes such
qualifications necessary. TLC has the full power and authority to carry on the
business in which it is engaged and to own and use the properties owned, leased
and used by it. TLC is a Delaware corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware.
Authorization of Transaction. TLC has full power and authority to execute
and deliver this Agreement. The execution, delivery and performance by TLC has
been duly authorized by all necessary action on the part of TLC. This Agreement
constitutes the valid and legally binding obligation of TLC, enforceable in
accordance with its terms and conditions.
Noncontravention. Neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will (i) violate
any constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge or other restriction of any Governmental Body,
professional regulatory organization or court to which TLC is subject or may
become subject as a result of the transaction contemplated by this Agreement, or
any provision of the Articles of Incorporation or the bylaws of TLC or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which TLC is a party or by which it is bound
or to which any of its assets is subject. Other than state and federal filings
required by the Securities Act and similar state statutes, TLC does not need to
give any notice to, make any filing with, or obtain any authorization, consent,
or approval of any Governmental Body in order for the Parties to consummate the
transactions contemplated by this Agreement.
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Certain SEC Filings. The most recent 10-K report of TLC Vision Corporation
("TLC Vision"), the parent corporation of TLC, and all periodic TLC Vision
reports filed with the Securities Exchange Commission thereafter do not contain
any untrue statement of any material fact and do not omit to state any material
fact necessary to make the statements made, in the context in which made, not
false or misleading.
Litigation. TLC is not a party to any litigation which would prevent TLC
from consummating the Contemplated Transactions. To the Knowledge of TLC there
is no threatened litigation which would prevent TLC from consummating the
Contemplated Transactions.
Brokers' Fees. Except as set forth on Schedule 4(d), TLC does not have any
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement for which
EOF or Kremer could become liable or obligated.
Full Knowledge. To the Knowledge of TLC, no representation or warranty made
by TLC in this Agreement contains or will contain any untrue statement of a fact
or omits or will omit to state a fact necessary to make the statements contained
herein or therein not misleading.
Covenants. The Parties agree as follows with respect to the period from and
after the execution of this Agreement.
General. Each of the Parties will take all reasonable actions and to do all
reasonable things necessary in order to consummate and make effective the
transactions contemplated by this Agreement (including satisfaction of the
closing conditions set forth in Section 6 below) to be satisfied by him or it.
This Section shall not be construed to obligate any of the Parties to waive any
condition precedent to his or its obligations to perform hereunder.
Notices and Consents. Practice will give any notices to third parties, and
will take all reasonable actions requested by TLC to obtain any third party
consents (other than the payment of cash or other consideration requested by
third parties in connection with the delivery of consents for the assignment of
contracts or agreements under this Agreement), necessary or required to
consummate the transaction or the assignment of contracts or agreements set
forth on Schedules 1(a), (b) and (c) or any permits or licenses of Practice
included in the Purchased Assets.
Regulatory Matters and Approvals. Each of the Parties will give any notices
to, make any filings with, and take all reasonable actions to obtain any
authorizations, consents, and approvals of Governmental Bodies and governmental
agencies in connection with the transactions contemplated by this Agreement.
Operation of Business. From the date of this Agreement through the Closing
Date, Practice shall (and Kremer shall cause Practice to):
conduct its business in the Ordinary Course of Business, except that
it may make extraordinary distributions of cash, settle any lawsuits on
terms acceptable to it provided that such terms do not have an adverse
effect on the Purchased Assets or TLC's ability to operate the Purchased
Assets after Closing, repurchase warrants and pay one-time bonuses to a
limited number of employees in connection with the consummation of the
transaction and enter into a redemption agreement with any one or more of
its Physician Owners;
except as otherwise directed by TLC in writing, and without making any
commitment on TLC's behalf, take all reasonable action to preserve intact
Practice's current business organization, keep available the services of
its officers, employees and independent contractors and maintain its
relations and goodwill with suppliers, customers, landlords, creditors,
employees, agents and others having business relationships with it;
make no changes in management personnel without prior consultation
with TLC; and
71
maintain the Purchased Assets in a state of repair and condition
consistent with normal conduct of Practice's business.
From the date of this Agreement through the Closing Date, Practice will not
engage in any practice, take any action, or enter into any transaction outside
the Ordinary Course of Business. Without limiting the generality of the
foregoing:
(ii) Practice will not authorize or effect any change in its articles
of incorporation or bylaws;
Practice will not grant any options, warrants, or other rights to
purchase or obtain any of its shares or issue, sell, or otherwise dispose
of any of its shares;
Practice will not issue any note, bond, or other debt security or
create, incur, assume, or guarantee any indebtedness for borrowed money or
capitalized lease obligation outside the Ordinary Course of Business;
Practice will not impose any Security Interest upon any of its assets
outside the Ordinary Course of Business;
Practice will not make any capital investment in, make any loan to, or
acquire the securities or assets of any other Person outside the Ordinary
Course of Business;
Practice will not make any change in employment terms for any of its
managers, officers, and employees outside the Ordinary Course of Business
other than to terminate existing employment agreements with physician
employees immediately prior to Closing; and
Practice will not commit to do any of the foregoing.
Further Acts and Assurances. Following Closing, each Party shall deliver to
the other Parties, without cost or expense to such Party, such further
information and documents and shall execute and deliver to the other Parties
such further instruments and agreements, without cost or expense to that Party,
as any other Party shall reasonably request to consummate or confirm the
transactions provided for herein, to accomplish the purpose herein, including
but not limited to taking any and all reasonable steps necessary to place TLC in
possession and operating control of the Purchased Assets or for reducing to
possession, any or all of the Purchased Assets or put in place new third party
payor agreements substantially similar to the agreements with third party payors
listed on Schedule 3(j).
Full Access. Upon three (3) business days prior notice, Practice will
permit representatives of the TLC to have full access to all premises,
properties, personnel, books, records (including tax records), contracts, and
documents of or pertaining to Practice during normal business hours. TLC (i)
will treat and hold as such any confidential information it receives from
Practice in the course of the reviews contemplated by this Section 0 , and (ii)
will not use any of the confidential information except in connection with this
Agreement, except as required by Applicable Law.
Notice of Developments. Each Party will give prompt written notice to the
other Parties of any adverse development causing a breach of any of its own
representations in Section 3 or Section 4 above within five (5) business days of
becoming aware of such breach (but in any event prior to Closing). The
aforementioned notice shall include an updated Schedule. Unless the party
receiving the updated Schedule has the right to terminate this Agreement under
Section 8(a)(iv) below by reason of the development and exercises that right
within the period of ten (10) business days, the written notice pursuant to this
Section 5(g) will be deemed to have amended the applicable Schedule or
Schedules, and to have qualified the representations contained in Section 3 or
Section 4 above, as applicable.
Exclusivity. Until the earlier of (i) July 12, 2005 or (ii) the Closing
Date, Practice will not solicit, initiate, or encourage the submission of any
proposal or offer from any Person relating to the acquisition of all or
substantially all of the capital stock or assets of Practice (including any
acquisition structured as a merger,
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consolidation, or share exchange). Practice shall notify TLC immediately if any
Person makes any proposal, offer, inquiry, or contact with respect to any of the
foregoing.
Collection of Accounts Receivable. Practice (prior to its dissolution) and
Kremer agree to cooperate with TLC and the Successor Medical Practice in the
collection of Accounts Receivable owned by Practice as of the Closing Date
acquired pursuant to this Agreement but Practice and Kremer shall not be
required to bear any cost or expense in providing such cooperation. TLC, at its
option, shall have the right to require the collection of said Accounts
Receivable through a lockbox or bank account sweep arrangement. In connection
therewith, Practice and Kremer agree to execute the necessary documents and
follow the necessary procedures as described in the Service Agreement to
accommodate the collection of the Accounts Receivable in such manner.
Corporate Authorization. In the absence of a breach of this Agreement by
TLC and the satisfaction of all conditions to the Practice's obligations to
consummate the transactions under Section 0, by execution of this Agreement,
Kremer agrees to take any and all steps, (other than the payment of cash or
other consideration requested by third parties or TLC) necessary and will do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such acts, deeds and assurances required in
order to consummate the transactions contemplated by this Agreement, including
voting as a director of Practice in favor of the transactions contemplated by
this Agreement and voting as an owner of Practice in favor of the transactions
contemplated by this Agreement at any meeting (or in any action by written
consent) required by the Pennsylvania Professional Corporation Act.
Malpractice Insurance. On or before Closing, Practice shall procure for
itself, until the statute of limitations expires, an extended reporting
endorsement (tail coverage) for any policy of malpractice insurance which was
not an occurrence policy covering the Practice and Kremer for acts prior to the
Closing Date (the "Tail Policy"). To the extent required, the Tail Policy shall
contain coverage limits of no less than $1,000,000 per incident and $3,000,000
in the aggregate on a claims made basis. All nonphysician employees of Practice
which are offered employment with Management LLC shall be offered employment on
terms and conditions comparable to those that are currently in effect on the
Closing Date.
Employee Benefit Plans. At or as soon as reasonably practicable after
Closing Practice will take action to terminate all Employee Benefit Plans in
accordance with Applicable Law.
Change of Name. Within (30) days of the Closing Date, Practice shall change
its name from "Frederic B. Kremer, M.D., P.A" to some other name that will not
be confused with such prior name and cease using any tradename which
incorporates the name "Kremer". Practice shall provide TLC with documentation
that it has changed its name as soon as reasonably practicable after such change
has been made.
Interim Financial Statements. Until the Closing Date, Practice shall
deliver to TLC within thirty (30) days after the end of each month a copy of
Practice's balance sheet and statement of income as of that date prepared in a
manner and containing information consistent with Practice's current practices.
Access to Books and Records after Closing. TLC shall give Practice and its
accountants or other representatives, reasonable access during normal business
hours to the books and records included in the Purchased Assets which related to
periods prior to Closing and which are necessary for the completion of
Practice's tax returns. Practice shall be allowed to make copies of such
information and retain such copies.
Intentionally Deleted.
Assistance With Future Claims. TLC covenants that for a period of two (2)
years following the Closing, employees of TLC or its Affiliates who were once
employees of Practice may provide Practice with reasonable assistance in
connection with the defense of any claims or litigation against Practice without
additional cost to Practice; provided, however, that such assistance shall not
materially interfere with the performance of such employee's employment duties
to TLC or its Affiliates.
Retained Liabilities. Practice shall satisfy or cause to be satisfied all
of the Retained Liabilities.
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Conditions to Obligation to Close.
Conditions to Obligation of TLC . The obligation of TLC to consummate the
transactions contemplated by this Agreement is subject to satisfaction of the
following conditions:
Practice shall have procured all of the third party consents, and
where indicated lease assignments in a form reasonably satisfactory to TLC,
for all the agreements specified on Schedule 0;
As of the Closing Date the representations and warranties set forth in
Section 3 above shall not contain any misrepresentations which in the
aggregate would likely result in a Material Adverse Effect or Material
Adverse Change;
Practice and Kremer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
No action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, or (C) affect adversely the right
of TLC or its Affiliates to own the Purchased Assets or assume the Assumed
Contracts;
All actions to be taken by Practice or Kremer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby, have been taken or delivered to TLC and
are reasonably satisfactory in form and substance to TLC;
Simultaneously with the Closing of the Contemplated Transactions, TLC
and EOF shall consummate the transactions contemplated under the EOF
Transaction Documents;
All licenses, permits and approvals necessary and authorizations for
the operation of the Purchased Assets as contemplated by this Agreement
shall have been obtained and be in full force and effect;
TLC and its Affiliates shall have obtained or have reasonable
assurances that they will obtain (at their own cost and expense) (a)
certification for participation in the Medicaid programs of the
Commonwealth of Pennsylvania, Delaware and New Jersey; and (b)
certification from the appropriate agency of the federal government for
participation in the federal Medicare program;
All material consents, approvals and authorizations necessary for
consummation by TLC of the transactions contemplated by this Agreement
shall have been obtained and be in full force and effect; and
The execution and delivery of all the items required to be delivered
by Practice and Kremer under Section 7.
TLC may waive any condition specified in this Section 6(a) if it executes a
writing so stating at or prior to the Closing.
Conditions to Obligation of Practice. The obligations of Practice and
Kremer to consummate the transactions contemplated by this Agreement are subject
to satisfaction of the following conditions:
As of the Closing Date the representations and warranties set forth in
Section 4 above shall not contain any misrepresentations which in the
aggregate would likely result in a Material Adverse Effect or Material
Adverse Change;
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TLC shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
No action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling or charge would (A)
prevent consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, or (C) affect adversely the right
of TLC to own the Purchased Assets or assume the Assumed Contracts;
All actions to be taken by TLC in connection with the consummation of
the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby, have been taken or delivered to Practice and are
reasonably satisfactory in form and substance to Practice;
All material consents, approvals and authorizations necessary for
consummation by TLC of the transactions contemplated by this Agreement
shall have been obtained and be in full force and effect;
The execution and delivery by TLC or an Affiliate of TLC of one or
more Assignment and Assumption Agreements (as defined in Section 7); and
The execution and delivery of all the items required to be delivered
by TLC under Section 7.
EOF may waive any condition specified in this Section 6(b) if it executes a
writing so stating at or prior to the Closing.
Items to be Delivered at or Prior to Closing.
By the Kremer or Practice. Practice or Kremer, as applicable, shall execute
and deliver to TLC, prior to or at the Closing:
Certified resolutions of Practice authorizing the execution of all
documents and the consummation of all transactions contemplated hereby;
A Bill of Sale in substantially the form attached hereto as Exhibit 0;
One or more Assignment and Assumption Agreements in substantially the
form attached hereto as Exhibit 0. under the terms of which TLC or its
Affiliates shall agree to assume all of the Assumed Liabilities;
Intentionally Deleted.
A certificate duly executed by the President of Practice that as of
the Closing Date, all representations and warranties of Practice do not
contain any misrepresentations which in the aggregate would likely result
in a Material Adverse Effect or Material Adverse Change;
Intentionally Deleted;
Intentionally Deleted;
Such other instruments as may be reasonably requested by TLC in order
to effect to or carry out the intent of this Agreement.
By TLC. TLC shall deliver to Practice at or prior to the Closing:
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The Purchase Price;
Intentionally Deleted;
A certificate, duly executed by an officer of TLC, stating as of the
Closing Date, all representations and warranties of TLC do not contain any
misrepresentations which in the aggregate would likely result in a Material
Adverse Effect or Material Adverse Change; and
Such other instruments as may be reasonably requested by Practice or
Kremer in order to effect to or carry out the intent of this Agreement.
Termination.
Termination of Agreement. Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors or board of
managers (whether before or after stockholder or member approval) as provided
below:
the Parties may terminate this Agreement by mutual written consent at
any time prior to the Closing Date;
TLC may terminate this Agreement by giving written notice to Practice
at any time prior to the Closing Date (A) in the event the representations
and warranties of Practice or Kremer contain any misrepresentations which
in the aggregate would likely result in a Material Adverse Effect or
Material Adverse Change; or (B) if the Closing shall not have occurred on
or before July 12, 2005, by reason of the failure of any condition
precedent under Section 6(a) hereof (unless the failure results primarily
from TLC breaching any representation, warranty, or covenant contained in
this Agreement); or
Practice may terminate this Agreement by giving written notice to TLC
at any time prior to the Closing Date (A) in the event the representations
and warranties of TLC contain any misrepresentations which in the aggregate
would likely result in a Material Adverse Effect or Material Adverse
Change; or (B) if the Closing shall not have occurred on or before July 12,
2005, by reason of the failure of any condition precedent under Section
6(b) hereof (unless the failure results primarily from Practice or Kremer
breaching any representation, warranty, or covenant contained in this
Agreement).
Any Party may terminate this Agreement by giving written notice to the
other Parties at any time prior to Closing in the event (A) any Party has
within the previous ten (10) business days given such Party any notice
pursuant to Section 5(g) above and (B) the development that is the subject
of the notice (when considered in the aggregate with all prior such
notices) would likely have a Material Adverse Effect.
Effect of Termination. If any Party terminates this Agreement pursuant to
Section 8(a) above, all rights and obligations of the Parties hereunder shall
terminate without any Liability of any Party to any other Party (except for any
Liability of any Party then in breach).
Deleted.
Miscellaneous.
Notices. Except as otherwise provided in this Agreement, any notice,
payment, demand, request or communication required or permitted to be given by
any provision of this Agreement shall be in writing and shall be duly given by
the applicable party if given to the applicable party at the following address
or facsimile number:
If to EOF or Copy to:
Frederic B. Kremer, M.D.:
Eyes of the Future, P.C. Blank Rome, LLP
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109 S. 13th Street One Logan Square
Longport, NJ 08403 Philadelphia, PA 19103
Attention: Frederic B. Kremer, M.D.: Attention: Steven Dubow
Facsimile: (215) 832-5755
If to TLC: Copy to:
540 Maryville Center Drive, Suite 200 Baker Donelson Bearman
St. Louis, MO 63141 Caldwell & Berkowitz P.C.
Attention: General Counsel 4268 I-55 North
Facsimile: 314-434-7251 Jackson MS 39211
Attention: Charles W. Ferguson
Facsimile: (601) 592-2479
Any such notice shall, for all purposes, be deemed to be given and
received:
if given by facsimile, when the facsimile is transmitted to the
party's facsimile number specified in Section 10(a) and confirmation
of complete receipt is received by the transmitting party during
normal business hours on any business day or on the next business day
if not confirmed during normal business hours; provided, however, that
a hard copy must also be sent via nationally recognized and reputable
overnight delivery service;
if by hand, when delivered;
if given by nationally recognized and reputable overnight
delivery service, the business day on which the notice is actually
received by the party; or
if given by certified mail, return receipt requested, postage
prepaid, two (2) business days after posted with the United States
Postal Service.
Section Captions. Section and other captions contained in this Agreement
are for reference purposes only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
Parties in Interest. Except as otherwise provided in this Agreement, this
Agreement shall be binding upon the Parties hereto and their successors, heirs,
devisees, assigns, legal representatives, executors and administrators.
Section References. Section and subsection references shall, unless the
context requires otherwise, include all subsections, paragraphs, etc. that
comprise such Section and/or subsection. For example, a reference to Section
5.1, unless the context requires otherwise, shall include 5.1, 5.1.1, 5.1.2,
etc.
Integration. This Agreement, the EOF Transaction Documents, the Bill of
Sale, the Assignment and Assumption Agreement(s) and the assignment of leases
contemplated under this Agreement embody the entire agreement and understanding
among the Parties and supersedes all prior agreements and understandings, if
any, among and between the Parties relating to the subject matter hereof.
Applicable Law. This Agreement and the rights of the Parties shall be
governed by, construed, and enforced in accordance with the laws of the
Commonwealth of Pennsylvania excluding conflicts of law provisions.
Specific Performance. Each Party acknowledges that the breach of the
provisions of this Agreement may cause irreparable injury to the other Party for
which monetary damages are inadequate, difficult to compute, or both and which
will be inadequate to fully remedy the injury. Accordingly, in the event of a
breach or threatened breach of one or more of the provisions of this Agreement,
the Party who may be injured (in addition to any other remedies which may be
available to such Party) shall be entitled to one or more preliminary or
permanent orders (i)
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restraining and enjoining any act which would constitute a breach, or (ii)
compelling the performance of any obligation which, if not performed, would
constitute a breach.
Interpretation. Each Party has had the opportunity to have this Agreement
reviewed by counsel and be advised by counsel as to the rights and obligations
of each Party. This Agreement shall not be construed or interpreted more
strictly against one Party than another on grounds that the Agreement or any
draft thereof was prepared by a Party or his counsel.
Enforcement Costs. If any legal action or other proceeding is brought for
the challenge or enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any provisions
of this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorney's fees, court costs, and all expenses
even if not taxable as court costs (including without limitation, all such fees,
costs and expenses incident to appeals), incurred in that action or proceeding,
in addition to any other relief to which such party or parties may be entitled.
No Referrals Required. The Parties agree that no part of this Agreement
shall be construed to induce or encourage the referral of patients or the
purchase of health care services or supplies. The Parties acknowledge that there
is no requirement under this Agreement or any other agreement between Practice
and TLC that any party refer any patients to any health care provider or
purchase any health care goods or services from any source. Additionally, no
payment under this Agreement is in return for the referral of patients, if any,
or in return for purchasing, leasing or ordering services from TLC or any of
TLC's Affiliates. The Parties may refer patients to any company or person
providing services and will make such referrals, if any, consistent with
professional medical judgment and the needs and wishes of the relevant patients.
Dispute Resolution. The parties agree that in the event of any controversy,
dispute or disagreement arising out of or relating to this Agreement or any
other document integrated into this Agreement under Section 10(e), or the breach
hereof, they shall work together in good faith first to resolve the matter and
then, if necessary, shall submit the matter to binding arbitration, which shall
be conducted in accordance with the procedures specified in this Section. All
reasonable requests for information made by one party to the other will be
honored. All negotiations pursuant to this Section are confidential and shall be
treated as compromise and settlement negotiations for purposes of applicable
rules of evidence. If the matter has not been resolved by the Parties within
sixty (60) days of the disputing party's notice, the dispute shall be submitted
to a single arbitrator for arbitration pursuant to the Rules and Procedures for
Arbitration (the "Rules") of the American Arbitration Association (the
"Service"). The location of the arbitration shall be in Washington D.C. at such
facility as the Parties may mutually agree or if the Parties are unable to agree
at such location determined by the arbitrator. The arbitrator shall be selected
by mutual agreement of the Parties or, in the absence of such agreement, by the
Service. In the event a dispute is submitted to arbitration, the applicable
Parties desire to engage in limited discovery for an abbreviated time period,
the reasonable parameters of which shall be set by the arbitrator, with input
from the applicable Parties, taking into consideration the nature and complexity
of the matters in dispute. The award of the arbitrator shall be binding and
conclusive upon the Parties, and judgment upon the award rendered by the
arbitrator may be entered by any court having jurisdiction thereof. The
successful or prevailing Party or Parties shall be entitled to recover
reasonable attorney and arbitrator fees and expenses incurred in connection with
the arbitration from the other Party to the arbitration.
Third-Party Beneficiaries. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the Parties to this
Agreement and any Affiliate of TLC which may execute an assignment and
assumption agreement or assignment of lease agreement any legal right or
equitable right, remedy or claim under or with respect to this Agreement or any
provision of this Agreement.
Public Announcement. Practice, Kremer and TLC have mutually agreed upon the
text of a public announcement regarding the Contemplated Transactions. Practice
and Kremer acknowledge and agree that TLC may release such public announcement
at any time after the execution and delivery of this Agreement by Practice and
Kremer.
Continuing Obligations of Practice. The Parties acknowledge and agree that
all of the obligations of Practice to TLC or its Affiliates under this Agreement
shall expire upon the dissolution of Practice; provided,
78
however, any obligation of Practice to TLC or its Affiliates that exists at the
time of its dissolution shall be assumed by Kremer individually.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
TLC VISION (USA) CORPORATION
By: /s/ James C. Wachtman
------------------------------------
Printed Name: James C. Wachtman
Title: President and Chief Executive
Officer
FREDERIC B. KREMER, M.D., P.C.
By: /s/ Frederic B. Kremer, M.D.
------------------------------------
Frederic B. Kremer, M.D., President
/s/ Frederic B. Kremer, M.D.
----------------------------------------
Frederic B. Kremer, M.D., Individually
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SCHEDULES AND EXHIBITS
Schedules
1(a) Real Property Leases
1(b) Equipment Leases
1(c) Agreements, Contracts, Etc.
1(d) Excluded Personal Property
2(b) Assumed Liabilities
2(i) Providers
3(b) EOF Ownership
3(i) Changes Prior to Closing
3(j) Contracts
3(l) Insurance
3(m) Litigation
3(p) Employee Benefit Plans
3(r)(iv) Practice Licenses and Permits
3(x) EOF Brokers
4(d) TLC Brokers
6(a)(i) Third Party Consents
Exhibits
1(b) Form of Services Agreement
7(a)(ii) Form of Bill of Sale
7(a)(iii) Form of Assignment and Assumption Agreement
* The schedules and exhibits to the agreement have been omitted pursuant to
Rule 601(a)(2) of Regulation S-K. Copies of the omitted material will be
furnished to the Securities and Exchange Commission or its staff upon
request.
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