1
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
BETWEEN
SURGICAL HEALTH CORPORATION
HEALTHSOUTH CORPORATION
AND
HEALTHTRONICS, INC.
DATED AS OF MAY 17, 2001
2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
May 17, 2001 (the "Closing Date") by and among HealthTronics, Inc., a Georgia
corporation ("Purchaser"), and HEALTHSOUTH Corporation, a Delaware corporation
("HEALTHSOUTH") and Surgical Health Corporation, a Delaware corporation ("SHC")
(HEALTHSOUTH and SHC are collectively referred to herein as "Owner").
PREAMBLE:
WHEREAS, each of Heritage Medical Services of Texas, Inc., a Texas
corporation ("Heritage"), and HSC of Gulf Coast, Inc., a Tennessee corporation
("HSC"), is a wholly-owned subsidiary of Owner (collectively, the "Subsidiaries"
and each individually a "Subsidiary");
WHEREAS, the Subsidiaries own a 52.07% ownership interest,
(collectively the "GCLA Interest"), in the aggregate, of Gulf Coast Lithotripsy
Associates, L.P., a Texas limited partnership ("GCLA"), and Heritage is the
general partner of GCLA;
WHEREAS, GCLA is the general partner of Lithotripsy Associates of
Texas, Limited Partnership, a Georgia limited partnership ("LAT") and GCLA owns
a 70% ownership interest in LAT (the "LAT Interest") (GCLA and LAT collectively,
the "Partnerships"); and
WHEREAS, Purchaser desires to acquire all of the issued and outstanding
capital stock of each of the Subsidiaries (the "Shares") from the Owner.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, the
parties agree as follows:
I. PURCHASE TERMS
1.1 Purchase and Sale of Shares. On the Closing Date, on the terms and
subject to the conditions of this Agreement, Owner shall sell, assign, transfer
and deliver to Purchaser, and Purchaser shall purchase and accept from the
Owner, all of the Shares free and clear of all Liens. The purchase and sale of
the Shares shall be effective (the "Closing") as of the date written above.
1.2 Purchase Price. The aggregate consideration being paid by Purchaser
to the Owner for the sale, assignment, transfer and delivery of the Shares is
$565,000 in cash (the "Purchase Price")
1.3 Effective Date. This Agreement will become effective for accounting
purposes on April 1, 2001 (the "Effective Date").
3
II. REPRESENTATIONS AND WARRANTIES OF THE OWNER
Owner represents and warrants the following to Purchaser:
2.1 Ownership.
(a) Owner is the owner of all right, title and interest (legal,
record and beneficial) in and to the Shares as set forth on Schedule 2.1, free
and clear of any and all liens, encumbrances or restrictions of any nature
whatsoever (except for any restrictions on transfer imposed by securities laws),
and Owner holds no other equity interest in either of the Subsidiaries. No
person or entity has any right or privilege (whether preemptive or contractual)
for the purchase of any of the Shares from Owner; and
(b) Subsidiaries are the owners of all right, title and interest
(legal, record and beneficial) in and to the GCLA Interest and GCLA is the owner
of all right, title and interest (legal, record and beneficial) in and to the
LAT Interest as set forth on Schedule 2.1(b), free and clear of any and all
liens, encumbrances or restrictions of any nature whatsoever (except for any
restrictions on transfer imposed by securities laws), and Subsidiaries and GCLA
hold no other equity interest in either of the Partnerships. No person or entity
has any right or privilege (whether preemptive or contractual) for the purchase
of any of either the GCLA Interest or LAT Interest from the Subsidiaries or
GCLA. Upon Closing, the Purchaser will acquire all right, title and interest
(legal, record and beneficial), free and clear of any and all liens,
encumbrances or restrictions of any nature whatsoever, except for any
restrictions on transfer imposed by securities laws, in the GCLA Interest and
LAT Interest.
2.2 Organization and Standing. Each of Owner and the Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, and has the corporate power and
authority to carry on its business as now conducted. Each of the Partnerships is
a limited partnership duly organized, validly existing and is in good standing
under the laws of the jurisdiction of its formation, and has the power and
authority to carry on its business as now conducted. Attached hereto as Schedule
2.2 are certificates of good standing for the Owner and each of the Partnerships
and Subsidiaries. Each of Owner, the Partnerships and the Subsidiaries is duly
authorized to conduct business and is in good standing under the laws of each
jurisdiction where such qualification is required. Each of Owner, the
Partnerships and the Subsidiaries has full corporate power and authority and, to
their knowledge, all licenses, permits, and authorizations necessary to carry on
the businesses in which it is engaged and to own and use the properties owned
and used by it. The Owner, the Subsidiaries and the Partnerships are not in
default under or in violation of any provision of their respective charter
bylaws or Limited Partnership Agreement.
2.3 Authorization and Validity. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby has been duly
authorized by all necessary action on the part of the Owner, the Subsidiaries
and the Partnerships. The Agreement constitutes or will constitute the legal,
valid and binding obligations of Owner, enforceable in accordance with its
terms, except as may be limited by Bankruptcy, insolvency or other laws
affecting creditors' rights generally, or as may be modified by a court of
equity.
2.4 Absence of Conflicting Agreements or Required Consents. Except as
set forth on Schedule 2.4, the execution, delivery and performance by Owner of
this Agreement and the
2
4
transactions contemplated hereby (i) do not require the consent of or notice to
any governmental or regulatory authority or any other third party; (ii) will not
conflict with or result in a violation of any law, ordinance, regulation,
ruling, judgment, order or injunction of any court or governmental
instrumentality to which Owner or either Subsidiary is subject or by which Owner
or either Subsidiary is bound; and (iii) will not conflict with, constitute
grounds for termination of, result in a breach of, constitute a default under,
require any notice under, or accelerate or permit the acceleration of any
performance required by the terms of any agreement, instrument, license or
permit material to the transactions contemplated by this Agreement; (iv) will
not conflict with any provision of either of the Owner's or a Subsidiary's
organizational documents, and (v) will not conflict with any provision of the
Partnerships' limited partnership agreements.
2.5 Outstanding and Authorized Capitalization.
(a) All authorized and outstanding capital stock of the
Subsidiaries is accurately described on Schedule 2.5(a). No shares of capital
stock of either of the Subsidiaries are held in the treasury of such Subsidiary.
All outstanding shares of capital stock of the Subsidiaries are listed and held
of record as indicated on Schedule 2.5(a) and have been duly and validly issued,
are fully paid and nonassessable and were not issued in violation of preemptive
rights of any past or present holder of any capital stock either of the
Subsidiaries. There are no outstanding warrants, options, rights, calls or other
commitments of any nature relating to the capital stock of either of the
Subsidiaries and there are no outstanding securities of either of the
Subsidiaries convertible into or exchangeable for any capital stock of the
Subsidiaries, in either case which have been granted or created by the
Subsidiaries. Neither Subsidiary is obligated to issue or repurchase any capital
stock for any reason and no person or entity has any right or privilege (whether
preemptive or contractual) for the purchase, subscription or issuance of any
unissued capital of the Subsidiaries. There are no outstanding rights to demand
registration of securities of the Subsidiaries or to sell securities of the
Subsidiaries in connection with a registration by the Subsidiaries under the
Securities Act of 1933, as amended.
(b) The ownership interests of all partners of the Partnerships are
accurately described on Schedule 2.5(b).
2.6 Litigation, Etc. Except as listed on Schedule 2.6, (i) there are no
claims, lawsuits, actions, arbitrations, governmental investigations,
administrative or other proceedings pending against either of the Subsidiaries
or the Partnerships (a "Claim"), and, to the knowledge of the Owner, the
Subsidiaries and the Partnerships, no such matter is threatened and there is no
basis for any such action; (ii) to the knowledge of the Owner, Subsidiaries and
Partnerships, there are no governmental or administrative investigations or
inquiries pending that involve either of the Subsidiaries or Partnerships; (iii)
there are no judgments against or consent decrees binding on either of the
Subsidiaries or Partnerships or their assets or, to the knowledge of the Owner,
Subsidiaries or Partnerships, without independent investigation, any licensed
professional relating to, or which may have an affect on, the business or
goodwill of either of the Subsidiaries or Partnerships; and (iv) all Claims have
been reported to the insurance carrier for such Subsidiary and such Partnership
and, except as indicated on Schedule 2.6, neither the Owner, nor the
Partnerships, nor the Subsidiaries has received a notice of denial of coverage
or a reservation of rights.
2.7 Financial Statements. Attached hereto as Schedule 2.7 are financial
statements for each of the Subsidiaries and the Partnerships as of and for the
periods indicated thereon and interim financial statements for each of the
Subsidiaries and the Partnerships most recently ended interim period, which
reflect the results of operations and financial condition of the Partnerships
and
3
5
Subsidiaries for such periods and at such dates, unless otherwise noted on
Schedule 2.7 (collectively, the "Financial Statements"). The Financial
Statements present fairly in all material respects the financial position of
each of the Subsidiaries and the Partnerships as of the dates indicated and
present fairly in all material respects the results of the operations for each
of the Subsidiaries and the Partnerships for the periods then ended, and are in
accordance with the books and records of the Subsidiaries and the Partnerships,
which have been properly maintained and are complete and correct in all material
respects, unless otherwise noted on Schedule 2.7.
2.8 Absence of Changes. Except as set forth on Schedule 2.8(a), and
except as contemplated by this Agreement, since December 31, 2000, each of the
Subsidiaries and the Partnerships has conducted its business only in the
ordinary course and, to the knowledge of the Owner, Subsidiaries and the
Partnerships, no event has occurred that would have a material adverse effect on
(i) the financial position, business, or results of operations of either of the
Subsidiaries or the Partnerships, or (ii) the ability of Owner to consummate its
obligations under this Agreement or to consummate the transactions contemplated
by this Agreement (a "Material Adverse Effect"), provided that Material Adverse
Effect shall not be deemed to include the impact of actions and omissions of
Owner (or any Subsidiaries) taken with the prior written consent of Purchaser in
contemplation of the transactions contemplated hereby.
2.9 Taxes.
(a) Except as listed in Schedule 2.9 or as reflected in the
Financial Statements, there does not exist and will not after the Closing Date
exist any material liability for taxes which may be asserted by any taxing
authority against, and no lien or other encumbrance for taxes will attach to,
the Subsidiaries, the Partnerships or any of their respective assets other than
(i) taxes due in respect of periods for which tax returns are not yet due and
for which adequate accruals have been made in the Financial Statements and (ii)
taxes accrued in the ordinary course of business between the date of the
Financial Statements and the Closing Date. Except as set forth on Schedule 2.9,
all federal, state and local tax returns and tax reports required to be filed
prior to the date hereof with respect to the Subsidiaries and the Partnerships
have been filed (other than returns for which extensions to file have been
granted) with the appropriate governmental agencies in all jurisdictions in
which such returns and reports are required to be filed, all of which are true,
correct and complete in all material respects, and all amounts shown as owing
thereon have been paid. No claim has ever been made by a taxing authority in any
jurisdiction where any of the Subsidiaries or Partnerships does not file tax
returns that any of the Subsidiaries or Partnerships is or may be subject to
taxes assessed by such jurisdiction.
(b) Except as listed on Schedule 2.9, neither the Subsidiaries nor
the Partnerships has received notice of any tax claims being asserted or any
proposed assessment by any taxing authority and no tax returns of either of the
Subsidiaries or the Partnerships have been examined by the Internal Revenue
Service (the "IRS") or the appropriate state agencies for any fiscal year or
period ended prior to the date hereof, and neither the Subsidiaries nor the
Partnerships are presently under, nor has they received notice of any,
contemplated investigation or audit by the IRS or any state agency concerning
any fiscal year or period ended prior to the date hereof. Except as listed on
Schedule 2.9, neither the Subsidiaries nor the Partnerships have executed any
extension or waivers of any statute of limitations on the assessment or
collection of any tax due that is currently in effect. Neither the Subsidiaries
nor the Partnerships are parties to any tax sharing agreement and neither has
any current or potential contractual obligation to indemnify any other person
with respect to taxes.
4
6
(c) Each of the Subsidiaries or the Partnerships and any
predecessors in interest have withheld or collected from each payment made to
each of their employees the amount of all taxes required to be withheld or
collected therefrom and each of the Subsidiaries and any predecessors in
interest have paid the same to the proper tax depositories or collecting
authorities.
(d) For purposes hereof, "taxes" shall mean any federal, state,
county, local, foreign or other tax, charge, imposition or other levy (including
interest or penalties thereon) including without limitation, income taxes
estimated taxes, excise taxes, sales taxes, use taxes, gross receipts taxes,
franchise taxes, taxes on earnings and profits, employment and payroll related
taxes, property taxes, real property transfer taxes, Federal Insurance
Contributions Act taxes, taxes on value added and import duties, whether or not
measured in whole or in part by net income, imposed by the United States or any
political subdivision thereof or by any jurisdiction other than the United
States or any political subdivision thereof.
2.10 No Violation of Law.
(a) To the knowledge of Owner, neither Owner, nor the Partnerships,
nor the Subsidiaries has been or is currently in violation of any applicable
local, state or federal law, order, injunction or decree, or any other
requirement of any governmental body, agency or regulatory authority or court
binding on it, or relating to its property or business or its advertising, sales
or pricing practices, except for any such violations as would not individually
or in the aggregate have a material adverse effect on Owner, the Subsidiaries or
the Partnerships, business, financial or otherwise.
(b) To the knowledge of Owner, neither Owner, nor the Partnerships,
nor the Subsidiaries is currently subject to any fine, penalty, liability or
disability as the result of a failure to comply with any requirement of federal,
state or local law nor has Owner, either of the Partnerships or either of the
Subsidiaries received any notice of such noncompliance.
2.11 Licenses and Authorizations. To the knowledge of Owner, each
Partnership is the holder of all valid licenses and other rights, permits and
authorizations required by law, ordinance, regulation or ruling of any
governmental regulatory authority (the "Licenses") necessary to operate such
Partnership, except for any such Licenses as would not individually or in the
aggregate have a material adverse effect on Owner, the Subsidiaries or the
Partnerships, business, financial or otherwise.
2.12 Contracts. Schedule 2.12 lists all of the contracts and agreements
entered into, either directly or indirectly by the Owner, by the Partnerships or
Subsidiaries, that primarily relate to the operation of the Subsidiaries or the
Partnerships, including the Partnerships' ownership and operation of
extracorporeal shockwave lithotripters, and the Partnerships' lease of such
lithotripters to hospitals and ambulatory surgery centers. Owner has delivered
to the Purchaser a correct and complete copy of each of the Agreements listed on
Schedule 2.12. Each of the agreements listed on Schedule 2.12 is legal, valid,
binding, enforceable and in full effect and will continue to be legal, valid,
binding and enforceable and in full force and effect on identical terms
following the Closing. Neither the Partnerships, Subsidiaries, nor, to the
knowledge of the Owner, the Partnerships and the Subsidiaries, any party to the
agreements on Schedule 2.12 are in breach or default and, to the knowledge of
the Owner, the Partnership and the Subsidiaries, 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 written agreements. Neither
the Partnerships or Subsidiaries either directly or indirectly by the Owner,
5
7
is a party to any verbal contract, agreement or other arrangement which, if
reduced to written form, would be required to be listed on Schedule 2.12.
2.13 Statements True and Correct. No representation or warranty made
herein by Owner, nor in any statement, certificate or instrument furnished or to
be furnished to Purchaser by Owner pursuant to this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein and therein not
misleading.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser represents and warrants the following to Owner:
3.1 Authorization and Validity. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby has been duly
authorized by all necessary corporate action on the part of the Purchaser. The
Agreement constitutes or will constitute the legal, valid and binding
obligations of Purchaser, enforceable in accordance with its terms, except as
may be limited by Bankruptcy, insolvency or other laws affecting creditors'
rights generally, or as may be modified by a court of equity.
3.2 Absence of Conflicting Agreements or Required Consents. Except as
set forth on Schedule 3.2, the execution, delivery and performance by Purchaser
of this Agreement and the transactions contemplated hereby (i) do not require
the consent of or notice to any governmental or regulatory authority or any
other third party; (ii) will not conflict with or result in a violation of any
law, ordinance, regulation, ruling, judgment, order or injunction of any court
or governmental instrumentality to which Purchaser is subject or by which
Purchaser is bound; and (iii) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, require any
notice under, or accelerate or permit the acceleration of any performance
required by the terms of any agreement, instrument, license or permit material
to the transactions contemplated by this Agreement; and (iv) will not conflict
with any provision of Purchaser's organizational documents.
IV. INDEMNIFICATION
4.1 Indemnification of Purchaser.
(a) Subject to Sections 4.3 through 4.6, the Owner shall indemnify
and hold harmless Purchaser and its officers, directors, agents or affiliates,
from and against any and all demands, claims, actions or causes of action,
assessments, losses, diminution in value, damages (including special and
consequential damages), liabilities, costs and expenses, including but not
limited to reasonable attorneys' fees ("Losses"), suffered or incurred by any
such party by reason of or arising out of:
(i) the breach of any representation or warranty contained in
Article II hereof or any breach or inaccuracy of any covenant or agreement of
Owner contained in this Agreement, or in any document or instrument delivered by
the Owner in connection with the Agreement; and
6
8
(ii) any item listed on Schedule 2.9, including the expense of
amending a prior tax return arising from the information on Schedule 2.9.
(b) No claim for indemnification may be made after third
anniversary of Closing Date; provided, however, that the right to
indemnification shall extend beyond such period with respect to any claim for
which written notice was given to the Owner during such period but shall expire
on the expiration of the applicable statutes of limitations unless an action has
been brought with respect thereto; provided further, that the right to
indemnification for any claim under Section 4.1(a)(ii) shall survive until the
expiration of the statute of limitations applicable to any claims or causes of
actions with respect to matters covered thereby.
4.2 Indemnification of the Owner.
(a) Subject to Sections 4.3 through 4.6, Purchaser shall indemnify
and hold harmless the Owner and any of its officers, directors, agents and
affiliates, at all times after the date hereof from and against any and all
Losses suffered or incurred by any such party by reason of, or arising out of
any misrepresentation, breach of warranty or breach or non-fulfillment of any
agreement of Purchaser contained in this Agreement or any document or instrument
delivered by Purchaser in connection herewith; and
(b) No claim for indemnification with respect to any alleged
misrepresentation or breach of warranty may be made after the third anniversary
of the Closing Date; provided, however, that the right to indemnification shall
extend beyond such period with respect to any claim for which written notice was
given to Purchaser during such period but shall expire on the expiration of the
applicable statutes of limitations unless an action has been brought with
respect thereto.
4.3 Notice and Opportunity to Defend. The party indemnified under this
Article IV (the "Indemnified Party") shall promptly notify in writing the
indemnifying party (the "Indemnifying Party") of any matter giving rise to an
obligation to indemnify and the Indemnifying Party shall defend such claim at
its expense with counsel reasonably acceptable to the Indemnified Party,
provided that the Indemnifying Party may not settle any such claim without the
consent of the Indemnified Party, which consent will not be unreasonably
withheld or delayed. The Indemnified Party agrees to cooperate with the
Indemnifying Party and to make reasonably available to the Indemnifying Party
any necessary records or documents in the possession of the Indemnified Party
which are necessary to defend such claim. If the Indemnifying Party does not
defend or settle such claim, the Indemnified Party may do so without the
Indemnifying Party's participation, in which case the Indemnifying Party shall
pay the expenses of such defense, and the Indemnified Party may settle or
compromise such claim without the Indemnifying Party's consent. The failure of
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice.
4.4 Indemnification Deductible. With respect to any indemnification
claim under Section 4.1(a)(i) and 4.2(a), neither the Owner or Purchaser,
respectively, shall be required to provide the indemnification hereunder unless
the amount of the loss or claim for which indemnification is sought, when
aggregated with all other losses and claims for which indemnification is sought,
exceeds $100,000, at which time rights to indemnification for losses and claims
may be asserted for all amounts in excess of $100,000.
7
9
4.5 Survival and Exclusivity. The representations and warranties of the
parties contained in this Agreement or in any document or instrument delivered
in connection herewith shall survive the Closing and shall not be extinguished
thereby, and the remedies set forth in this Article IV shall constitute the sole
and exclusive remedy for any inaccuracy or breach of any such representation or
warranty not arising out of fraud or an intentional misrepresentation.
4.6 Indemnification Limits. In no event shall Owner or Purchaser be
obligated to make indemnification payments in excess of the Purchase Price,
provided that such limitation shall not apply to any indemnification under
Section 4.1(a)(ii).
V. MISCELLANEOUS PROVISIONS
5.1 Notices.
(a) Any notice sent in accordance with the provisions of this
Section 6.1 shall be deemed to have been received (even if delivery is refused
or unclaimed) on the date which is: (i) the date of proper posting, if sent by
certified U.S. mail or by Express U.S. mail or private overnight courier; or
(ii) the date on which sent, if sent by facsimile transmission, with
confirmation and with the original to be sent by certified U.S. mail, addressed
as follows:
If to the Owner: HEALTHSOUTH Corporation
One HEALTHSOUTH PARKWAY
Birmingham, Alabama 35243
Attn: Beall D. Gary, Jr.
Telephone: (205) 967-7116
Facsimile: (205) 969-4732
with a copy to: Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attn: J. Mark Ray
Telephone: (404) 881-7000
Facsimile: (404) 881-7777
If to Purchaser HealthTronics, Inc.
1841 West Oak Parkway
Suite A
Marietta, GA 30062
Attn: Argil J. Wheelock, M.D.
Telephone: (770) 419-0691
Facsimile: (770) 419-9490
with a copy to: Miller & Martin LLP
Suite 1000 Volunteer Building
832 Georgia Avenue
Chattanooga, Tennessee 37402
Attn: Frank Williams
Katrina Jewett
Telephone: (423) 756-6600
Fax: (423) 785-8480
8
10
(b) Any party hereto may change its address specified for notices
herein by designating a new address by notice in accordance with this Section
5.1.
5.2 Expenses. Except as provided herein, each of the parties hereto
shall bear and pay all costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder, provided, however, all
legal, accounting and other fees and expenses incurred by the Subsidiaries and
the Owner concerning the transactions contemplated hereby shall be paid by the
Subsidiaries or the Owner prior to the Closing, or to the extent not so paid,
then paid by the Owner after the Closing when due.
5.3 Further Assurances. Each party covenants that at any time, and from
time to time, after the Closing, it will execute such additional instruments and
take such actions as may be reasonably requested by the other parties to confirm
or perfect or otherwise to carry out the intent and purposes of this Agreement.
5.4 Waiver. Any failure on the part of any party to comply with any of
its obligations, agreements or conditions hereunder may be waived by any other
party to whom such compliance is owed. No waiver of any provision of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
5.5 Assignment. This Agreement shall not be assignable by either of the
parties hereto without the written consent of the other party. However, in the
event of the sale, merger, or consolidation of Owner or Purchaser, Owner or
Purchaser or their permitted successors or assigns may assign Owner's or
Purchaser's rights hereunder to the successor or purchaser of Owner or
Purchaser.
5.6 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, executors, administrators, successors and assigns. This
Agreement shall survive the Closing and not be merged therein.
5.7 Entire Agreement. This Agreement and the Exhibits, Schedules,
certificates and other documents delivered pursuant hereto or incorporated
herein by reference, contain and constitute the entire agreement among the
parties and supersede and cancel any prior agreements, representations,
warranties, or communications, whether oral or written, among the parties
relating to the transactions contemplated by this Agreement. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by an agreement in writing signed by the party
against whom or which the enforcement of such change, waiver, discharge or
termination is sought.
5.8 Governing Law; Severability. This Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia. The
provisions of this Agreement are severable and the invalidity of one or more of
the provisions herein shall not have any effect upon the validity or
enforceability of any other provision.
9
11
5.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.10 No Brokers. The Owner, the Subsidiaries and Purchaser each
represent to the others that no broker or finder has been employed in connection
with the transactions hereunder.
5.11 Schedules and Exhibits. All Schedules and Exhibits attached to
this Agreement are by reference made a part hereof.
5.12 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.13 Separability. If any one or more of the provisions of this
Agreement shall be determined to be invalid, illegal, or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions of this
Agreement shall not be impaired in any way.
5.14 No Benefit to Third Parties. This Agreement is not intended to
benefit, and shall not be construed to benefit, any person other than the
parties hereto or create any third-party beneficiary right for any person.
5.15 Provision of Information. After the Closing, HEALTHSOUTH shall use
commercially reasonable efforts to provide requested information to Purchaser or
its agents in a timely fashion so that Purchaser may include audited financial
statements of the Subsidiaries in the Current Report on Form 8-K that it intends
to file with the Securities and Exchange Commission.
5.16 Distributions. No later than May 31, 2001, Purchaser shall pay
HEALTHSOUTH $100,000 in lieu of any distributions that the Subsidiaries would
have been entitled to receive from the Partnerships during 2001.
[SIGNATURES ON NEXT PAGE]
10
12
IN WITNESS WHEREOF, the undersigned have executed this Purchase
Agreement as of the day and year first written above.
PURCHASER:
HEALTHTRONICS, INC.
By: /s/ Argil Wheelock
----------------------------------------
Name: Argil Wheelock
----------------------------------
Title: CEO
---------------------------------
OWNER:
HEALTHSOUTH CORPORATION
By: /s/ Beall D. Gary, Jr.
----------------------------------------
Name: Beall D. Gary, Jr.
----------------------------------
Title: Group Vice President
---------------------------------
SURGICAL HEALTH CORPORATION
By: /s/ Beall D. Gary, Jr.
----------------------------------------
Name: Beall D. Gary, Jr.
----------------------------------
Title: Vice President and Secretary
---------------------------------
11
13
SCHEDULES
Number Description
2.1(a) Ownership of the Shares
2.1(b) Ownership of the Subsidiaries
2.2 Organization and Standing
2.4 Absence of Conflicting Agreements Or Required Consents
2.5(a) Outstanding and Authorized Capitalization
2.5(b) Ownership Interests of the Partnerships
2.6 Litigation
2.7 Financial Statements
2.8(a) Absence of Changes
2.9 Taxes
2.12 Contracts
The Company agrees to furnish supplementally a copy of any omitted schedule to
the Commission upon request.
12