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Exhibit 2.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Agreement for Purchase and Sale of Assets ("Agreement") is
entered into and executed as of June 5, 1996, by and among (i) PEDIATRIX
MEDICAL GROUP OF CALIFORNIA, P.C. a professional corporation ("Buyer"), (ii)
INFANT CARE SPECIALISTS MEDICAL GROUP, INC., a California professional
corporation ("Corporation"), and (iii) the individual physicians whose names
and license numbers are set forth in Exhibit "A" hereto (individually,
"Shareholder" and collectively, "Shareholders"), with respect to the following
facts:
A. Corporation is engaged in the business of operating a
medical practice specializing in neonatology.
B. The Shareholders own one hundred percent (100%) of the
issued and outstanding stock of Corporation.
C. Corporation desires to sell to Buyer specified assets of the
Corporation consisting of certain hospital contracts.
D. Buyer desires to purchase said assets from Corporation as
set forth in this Agreement.
E. Buyer desires to obtain from Corporation and from the
Shareholders covenants not to compete.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants contained herein (the adequacy of which is hereby mutually
acknowledged by the Parties), the Parties hereto hereby agree as follows:
1. DEFINITIONS
1.1 Definitions. For purposes of the Agreement, the words and
terms listed below shall have the following respective meanings:
1.1.1 "Agreement" means this agreement for purchase and
sale of assets together with all exhibits and schedules referenced herein or
attached hereto.
1.1.2 "Authority" means any federal, state or local
regulatory governmental agency, commission, bureau or authority.
1.1.3 "Business" means the medical practice presently
carried on by the Corporation.
1.1.4 "Closing" means the consummation of the sale to,
and the purchase by, Buyer of the Purchased Assets by the transfer and delivery
of documents of title thereto and the payment of the Purchase Price therefor.
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1.1.5 "Closing Date" means June 5, 1996, or such other
date as the Parties may mutually agree. Unless the parties otherwise agree in
writing, the Closing shall be deemed effective as of 12:01 a.m. (local time) on
June 1, 1996.
1.1.6 "Code" means the Internal Revenue Code of 1986,
as amended.
1.1.7 "Due Inquiry" means such inquiry as a reasonably
prudent person would conduct under the circumstances of the transaction
contemplated by this Agreement, it being understood that "Due Inquiry" does not
include the retention of accountants to audit the Corporation's Financial
Statements, or the retention of attorneys to determine whether Corporation's
conduct of business is in violation of any applicable laws, regulations,
orders, rules, decrees or ordinances.
1.1.8 "Financial Statements" means the unaudited
financial statements of Corporation for the period ended December 31, 1995,
consisting of a balance sheet and income statement, and unaudited financial
statements of Corporation for the period ended March 31, 1996, copies of which
are attached hereto as Exhibit "B".
1.1.9 "Lease" shall mean the lease for the real
property located at 2143 W. Orangewood Avenue, Orange, California 92668,
wherein Corporation is the lessee and Hanover Real Estate Associates is the
lessor.
1.1.10 "Liabilities" means all liabilities of
Corporation that are in existence as of the Closing, including, without
limitation, (i) liabilities which are reflected on the Financial Statements,
and which remain outstanding as of the Closing, (ii) outstanding liabilities
which are not reflected on the Financial Statements, and which remain
outstanding as of the Closing, and (iii) contingent liabilities, including,
without limitation, contingent liabilities that are not reflected in this
Agreement or in the Financial Statements, and that arise from acts or omissions
occurring prior to the Closing.
1.1.11 "Parties" means Shareholders, Corporation and
Buyer, collectively, and "Party" means any one of them.
1.1.12 "Person" means any individual, corporation,
partnership, trustee or trust or unincorporated association.
1.1.13 "Preclosing Period" means any tax period
(including partial periods) that end on or prior to the Closing Date.
1.1.14 "Purchase Price" means that amount to be paid by
the Buyer to the Corporation for the Purchased Shares as set forth in Section
2.2 below.
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1.1.15 "Purchased Assets" means the contracts between
the Corporation and various hospitals for management of the neonatal units at
such hospitals which contracts are listed on Exhibit "C" attached hereto.
2. PURCHASE AND SALE
2.1 Purchase and Sale of Assets. At and upon the Closing, the
Corporation shall sell, transfer and deliver the Purchased Assets to Buyer, and
Buyer shall purchase, acquire and accept the Purchased Assets from the
Corporation. The Corporation shall also assign its interest in the Lease to
the Buyer and the Buyer shall assume the obligations of the Corporation
thereunder.
2.2 Purchase Price. The Purchase Price for the Purchased Assets
shall be the amount set forth on Schedule 2.2, attached hereto. At and upon
the Closing, Buyer shall deliver the Purchase Price to Corporation by means of
a cashier's or certified check made payable to Corporation in the amount of the
Purchase Price.
2.3 Closing. The Closing shall take place on the Closing Date
and shall be held at 2143 W. Orangewood Avenue, Orange, California.
2.4 Delivery by Corporation and Shareholders. At and upon the
Closing, Corporation and Shareholders shall deliver or shall cause to be
delivered to Buyer the following:
2.4.1 Assignments of the Purchased Assets duly
executed by the Corporation transferring the Purchased Assets to the Buyer.
Such assignments shall be in the form of Exhibit "U", attached hereto, and
shall include a duly signed consent to transfer in the form of Exhibit "U",
duly executed by the other parties to each of the Purchased Assets.
2.4.2 Assignment and Consent of the Lease duly executed
by the Corporation and the Landlord, transferring the Lease to the Buyer. The
Assignment and Consent shall be in the form of Exhibit "X" attached hereto.
2.4.3 The agreements, documents and instruments
described in Section 4.1, inclusive, below.
2.5 Delivery by Buyer. At and upon the Closing, Buyer
shall deliver or cause to be delivered to the Corporation a check in the amount
of the Purchase Price.
2.6 Delivery of Other Documents. Such documents as
evidence the satisfaction of any condition precedent shall have been delivered
prior to or at the Closing. Each Party shall, at the Closing, deliver to the
other Parties an acknowledgment of receipt of such documents upon request by
any Party.
2.7 Assumption of Purchased Assets. At and upon the Closing,
Buyer shall agree to assume performance of the obligations to be performed
after the Closing with
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regard to the Purchased Assets. The Buyer shall not assume or be liable for
any Liabilities or any other obligations of the Corporation or any
Shareholders.
2.8 Allocation of Purchase Price. Exhibit 2.9 hereto sets forth
an allocation of the Purchase Price to the Purchased Assets. The Allocation
Schedule shall be used for all purposes in allocating the Purchase Price
including preparation of Form 8594. On the Closing Date, or as soon as
practical thereafter, the Seller and the Buyer shall exchange completed and
executed copies of IRS Form 8594 (or other applicable form), required schedules
thereto, and any similar forms required by any state or local Tax Authority.
If any changes are required to these forms as a result of information which is
first available after the Closing Date, the Seller and the Buyer will in good
faith use reasonable efforts to promptly agree on such changes. The Seller and
the Buyer each agree to file all Tax Returns in accordance with the Allocation
Schedule.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Corporation and
Shareholders. Corporation and Shareholders hereby, jointly and severally,
represent and warrant to Buyer that each of the following representations and
warranties are true as of the date of the Agreement, and unless otherwise set
forth herein, as of the Closing; provided the Buyer is in compliance with all
laws necessary to conduct the medical practice to be conducted by it as of the
Closing.
3.1.1 Enforceability of Obligations. This Agreement
will, upon Closing, constitute a valid and binding obligation of Corporation
and Shareholders enforceable against them in accordance with its terms.
3.1.2 No Liens. The Purchased Assets are free and
clear of any liens, charges, encumbrances or rights of others (other than the
rights of Buyer hereunder) and no Person (other than Buyer hereunder) has any
agreement, option or any rights capable of becoming an agreement or option for
the acquisition of the Purchased Assets.
3.1.3 Licenses, Registrations and Compliance.
Corporation is duly registered, licensed or otherwise qualified as a
professional corporation to do business in California, and in no other
jurisdiction, and after due inquiry, neither Corporation nor Shareholders are
in violation of any applicable laws, regulations, orders, rules, decrees or
ordinances.
3.1.4 Organization and Valid Existence. Corporation is
a corporation duly organized, validly existing and in good standing under the
laws of the State of California, and has all necessary corporate power,
authority and capacity to enter into this Agreement and carry out its
obligations hereunder, to own and lease its property and assets (including,
without limitation, the property and assets shown in the Financial Statements),
and to carry on the Business as presently conducted by it. The execution and
delivery of this Agreement, the sale of the Purchased Assets, and the
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consummation of the transaction described herein shall be duly authorized by
all necessary corporate action of Corporation on or prior to the Closing.
3.1.5 Capitalization. The authorized capital of the
Corporation is 200,000 common shares, and 200,000 preferred shares. All the
currently issued and outstanding common shares and preferred shares of
Corporation have been duly and validly issued and are outstanding as fully paid
and non-assessable shares in the capital of Corporation. The Shareholders own
one hundred percent (100%) of the issued and outstanding shares of the
Corporation.
3.1.6 Financial Statements. To the best knowledge of
Corporation and the Shareholders, after due inquiry, the Financial Statements
present a true, accurate and complete statement of the financial condition and
assets and liabilities of the Corporation as of the dates shown thereon. Such
statement have been maintained on a cash basis.
3.1.7 Solvency. Corporation is presently solvent, and
is not "insolvent" (as hereinafter defined in this Paragraph). The
consummation of the transactions contemplated by this Agreement will not cause
the Corporation to become insolvent. For purposes of this Agreement, the term
"insolvent" is defined to specify the condition in which (i) the sum of
Corporation's liabilities is greater than the fair market value of
Corporation's assets, or (ii) Corporation is unable to meet and pay
Corporation's debts and obligations as such debts and obligations become due.
3.1.8 Purchased Assets. There are no obligations,
claims, offsets or liabilities of any kind or nature, whether accrued,
absolute, contingent or otherwise, with respect to the Purchased Assets. All
of the Purchased Assets are in full force and effect. Neither the Corporation
nor any of the Shareholders has received any notice of default in regard to any
of the Purchased Assets and there exists no default or event that with notice
of a lapse of time, or both, would constitute a default under any of the
Purchased Assets.
3.1.9 Tax Matters. Corporation and Shareholders are
responsible for filing all federal, state and local income, franchise, sales or
use, property, payroll, SUTA and FUTA, and other tax returns or reports
required by any law or regulation to be filed, and except as specifically set
forth in Exhibit "E" hereto, Shareholders and Corporation have duly and timely
filed all such federal, state and local income, franchise, sales or use,
property, payroll, SUTA and FUTA, and other tax returns or reports required by
any law or regulation to be filed, and have duly paid all taxes, including
payroll taxes and deposits, assessments and reassessments, and all other taxes,
duties, charges, penalties, interest and fines due and payable by Corporation
on or before the date hereof. Further:
3.1.9.1 True and Accurate Copies of Tax
Returns. The last three calendar years' federal and state income tax returns
of Corporation, provided to Purchaser under Section 4.1 hereof, are true and
accurate copies of those filed with the Authorities. Corporation and
Shareholders hereby agree to provide Buyer with
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copies of corporate tax returns and supporting documentation for the tax years
1995, 1994 and 1993.
3.1.9.2 Corporation Has Not Received Any
Adverse Tax Notices. Except as specifically set forth in Exhibit "E" hereto,
Corporation has not received from any federal, state or local taxing authority
any assessment, reassessment or notice of underpayment of any taxes or other
penalty or charges and no such notice is reasonably expected, and no consents
extending or waiving the limitation of time for reassessment of any taxes,
duties, charges, penalties, interest or fines, or any statutes of limitations
related thereto have been filed with respect to Corporation for any fiscal
year. Except as set forth in Exhibit "E", no tax return of Corporation has
been audited.
3.1.9.3 No Misrepresentation in Tax
Returns of Corporation. There is no misrepresentation attributable to neglect,
carelessness, willful default or fraud contained in any tax return of
Corporation previously filed.
3.1.9.4 Provisions for Current and
Deferred Taxes Sufficient. The provision made for current and deferred taxes
included in the Financial Statements is sufficient for the payment of all
accrued and unpaid federal, state and local income, franchise, capital, sales
or use, property, payroll, SUTA and FUTA, and other taxes, assessments and
reassessments, duties, charges, penalties, interest and fines payable by
Corporation (whether or not disputed), for the period ended the date thereof
and for all periods prior thereto.
3.1.10 Absence of Changes. Other than as disclosed on
any Exhibit hereto, since the date of the Financial Statements, to the best
knowledge of Corporation and Shareholders, after due inquiry, neither
Corporation nor Shareholders are aware of any of the following:
3.1.10.1 any material change in the
condition or operations of the Business, assets or financial condition of
Corporation other than changes in the ordinary and normal course of business
(none of which has been materially adverse); or
3.1.10.2 any damage, destruction or loss,
or other event, development or condition of any character (whether or not
covered by insurance) materially and adversely affecting the Business,
Purchased Assets, assets, properties or future prospects of Corporation.
3.1.11 Absence of Unusual Transactions. Since the date
of the Financial Statements, to the best knowledge of Corporation and
Shareholders, after due inquiry, Corporation has not:
3.1.11.1 transferred, assigned, sold or
otherwise disposed of any of the assets shown in the Financial Statements ,
including, without limitation,
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the Purchased Assets or canceled any debts or claims, except in each case in
the ordinary and usual course of business;
3.1.11.2 incurred or assumed any
obligation or liability (fixed or contingent), except those listed in Exhibit
"D" hereto and except unsecured current obligations and liabilities incurred in
the ordinary and normal course of business;
3.1.11.3 Except as shown on Exhibit D,
issued or sold any shares of its capital Stock or any warrants, bonds,
debentures or other securities of the Corporation, or issued, granted or
delivered any right, option or other commitment for the issuance of any such or
other securities;
3.1.11.4 discharged or satisfied any lien
or encumbrance, or paid any obligation or liability (fixed or contingent) other
than liabilities included in the Financial Statements and liabilities incurred
since the date thereof in the ordinary and normal course of business;
3.1.11.5 undertaken any action or
transaction, or suffered any circumstance or situation, having an adverse
effect on stockholders' equity other than in the ordinary course of business;
3.1.11.6 declared or made any payment of
any dividend or other distribution in respect of any shares of its capital
stock or purchased or redeemed any such shares thereof or effected any
subdivision, consolidation or reclassification of any such shares;
3.1.11.7 suffered any operating loss or
any extraordinary loss, or waived any rights of substantial value, or entered
into any commitment or transaction not in the ordinary and usual course of
business where such loss, rights, commitment or transaction is or would have a
material effect on Corporation;
3.1.11.8 except as required hereunder, or
as shown on Exhibit "D", amended or changed or taken any action to amend or
change its articles of incorporation or bylaws;
3.1.11.9 made any general wage or salary
increases in respect of personnel which it employs, other than increases in the
ordinary and normal course of business; and, except as disclosed in Exhibit "F"
hereto, paid any bonuses to personnel;
3.1.11.10 except as disclosed in Exhibit
"D" hereto, mortgaged, pledged, subjected to lien, granted a security interest
in, or otherwise encumbered the Purchased Assets, or any of its other assets or
property, whether tangible or intangible;
3.1.11.11 except with Buyer's prior written
consent, made any single capital expenditure in excess of $1,000; or
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3.1.11.12 authorized or agreed or otherwise
become committed to do any of the foregoing.
3.1.12 Title to Properties. Except as disclosed in the
Financial Statements or in Exhibit "G" hereto, Corporation has good and
marketable title to all its assets, real and personal including, without
limitation, the Purchased Assets, and all other assets reflected in the
Financial Statements or acquired since the date of the Financial Statements
free and clear of all mortgages, pledges, liens, encumbrances or charges of any
kind of character.
3.1.13 Leased Equipment. Exhibit "H" hereto contains a
true and complete list of all equipment owned by Corporation, and a complete
list of all personal property and fixtures in the possession or custody of
Corporation which are leased with the details of such leases.
3.1.14 Leases of Real Property. Corporation is not a
party to or bound by any leases of real property other than those set forth in
Exhibit "I" hereto, and all interests held by Corporation as lessee under such
leases are free and clear of any and all liens, charges and encumbrances of any
nature and kind whatsoever, and all rental and other payments payable by
Corporation pursuant to such leases have been duly paid. Such leases are in
full force and effect without amendment thereto and Corporation is not
otherwise in default in meeting its obligations contained in any such lease.
3.1.15 Real Property. Except as set forth in Exhibit
"I" hereto, Corporation does not own any real property.
3.1.16 Contracts to Purchase. Except as set forth in
Exhibit "J" hereto, Corporation is not a party to any contract to purchase any
goods an/or services with a value in excess of $2,000 per year.
3.1.17 Employment Contracts. Except as described in
Exhibit "K", Corporation does not have any written employment contracts,
pension, deferred profit sharing, retirement, employee benefit, stock option or
other similar agreements or plans nor did it have any such plan or agreement in
the past, nor does it have any written contracts of employment with any
employees or any oral contracts of employment which are not terminable on the
giving of reasonable notice in accordance with applicable law.
3.1.18 Material Contracts. Except as set forth in
Exhibits hereto, Corporation is not a party to or bound by any material
contract or commitment whether oral or written.
3.1.19 Pension Plans.
3.1.19.1 Except as set forth in Exhibit
"K" hereto, Corporation does not maintain or contribute to any plan ("Employee
Pension Benefit
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Plan") to provide employee benefits or retirement benefits within the meaning
of the federal Employee Retirement Income Security Act of 1974, as amended
("ERISA") or the regulations thereunder. With respect to those Employee
Pension Benefit Plans listed on Exhibit "K":
a. Each such Employee Pension Benefit
Plan (and each related trust, insurance contract or fund) complies in form and,
to the knowledge of Corporation and Shareholders, in operation in all respects
with the applicable requirements of ERISA and the Code, except where the
failure to comply would not have a material adverse effect on Corporation.
b. Each such Employee Pension Benefit
Plan, which is intended to meet the requirements of Section 125 of the Code,
meets such requirements, and each program of benefits for which employee
contributions are provided pursuant to elections under any such Employee
Pension Benefit Plan meets the requirements of the Code applicable thereto.
c. Corporation has delivered to Buyer
correct and complete copies of the plan documents and summary plan
descriptions, the most recent determination letter received from the Internal
Revenue Service, the most recent Form 5500 Annual Report, and all related trust
agreements, insurance contracts and other funding arrangements which implement
each such Employee Pension Benefit Plan.
3.1.19.2 With respect to each Employee Pension
Benefit Plan that Corporation maintains or ever has maintained or to which it
contributes, ever has contributed or ever has been required to contribute:
a. Except as set forth in Exhibit "K"
hereto, no such Employee Pension Benefit Plan, has been completely or partially
terminated or has been the subject of a "reportable event" (as defined in
Section 4043 of ERISA) as to which notices would be required to be filed with
the Pension Benefit Guaranty Corporation ("PBGC"), and no proceeding by the
PBGC to terminate any such Employee Pension Benefit Plan has been instituted.
b. Corporation has not incurred any
liability to the PBGC (except for required premium payments, if any), or
otherwise under Title IV of ERISA (including any withdrawal liability) or under
the Code with respect to any such Employee Pension Benefit Plan.
c. No action, suit, proceeding,
hearing or investigation with respect to the administration or the investment
of assets of any Employee Pension Benefit Plan (other than routine claims for
benefits) is pending or, to the knowledge of the Corporation or Shareholders,
threatened, except where the action, suit, proceeding, hearing or investigation
would not have a material adverse effect on Corporation.
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3.1.19.3 Corporation does not contribute
to and, since December 31, 1984, has not contributed to and has not been
required to contribute to, any Multiemployer Plan, and has no liability
(including withdrawal liability) under any Multiemployer Plan.
3.1.19.4 Corporation does not have any
obligation to provide health or other welfare benefits to former, retired or
terminated employees, except as specifically required under Section 4980B of
the Code. With respect to all of its past and present employees, Corporation
has complied in all material respects with the notice and continuation
requirements of Part 6 of Subtitle B of Title I of ERISA and of Section 4980B
of the Code.
3.1.20 Health and Welfare Plans. Except as set forth on
Exhibit "K" hereto, Corporation is not a party to any employment contracts,
collective bargaining agreements, pension, bonus, profit sharing, stock option,
deferred compensation, health, disability, life insurance, or cafeteria plan,
or other agreements or arrangements providing for employee remuneration or
benefit within the meaning of ERISA, or the regulations thereunder, or
otherwise.
3.1.21 Absence of Conflicting Agreements. Corporation
is not a party to, bound or affected by or subject to any indenture, mortgage,
lease, agreement, instrument, charter or bylaw provision, or, to the best of
its knowledge, after due inquiry, any statute, regulation, order, judgment,
decree or law which would be violated, contravened, breached by or under which
default would occur, as a result of the execution and delivery of this
Agreement or the consummation of any of the transactions provided for herein;
provided the Buyer is in compliance with all laws necessary to conduct the
medical practice to be conducted by it as of the Closing.
3.1.22 Litigation. Except as disclosed in Exhibit "M"
hereto, there is no suit, action, litigation, arbitration proceeding,
governmental proceeding, administrative hearing, including appeals and
applications for review, pending or, to the best knowledge, information or
belief of Corporation or Shareholders (after due inquiry), threatened against
or relating to Corporation or affecting its properties or Business or the
Purchased Assets. None of the matters listed in Exhibit "M", if determined
adversely to Corporation, would materially and adversely affect the properties,
Business, future prospects, or financial condition of Corporation. Except as
disclosed in Exhibit "M" hereto, there is not presently outstanding against
Corporation any adverse judgment, decree, injunction, rule or order of any
court, governmental department, commission, agency, instrumentality or
arbitrator.
3.1.23 Insurance. Corporation currently has in force
the policies of insurance set out in Exhibit "O" hereto. All such policies of
insurance are in full force and effect and Corporation is not in default,
whether as to the payment of premium or otherwise, under the terms of any such
policy.
3.1.24 Absence of Uninsured Liabilities. Except as
described in Exhibit "P" hereto, to the best knowledge of Corporation and
Shareholders, after due
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inquiry, Corporation has no outstanding liabilities nor is it subject of any
outstanding claims which liabilities or claims are normally covered by
insurance policies but which liabilities or claims are not covered by their
insurance.
3.1.25 Copies of Agreements, etc. True, correct and
complete copies of all mortgages, leases, agreements, instruments and other
documents listed in the Exhibits hereto to this Agreement, including copies of
the Purchased Assets, and of the policies of insurance referred to in
Subsection 3.1.27, either have been delivered to Buyer or will be delivered
prior to Closing.
3.1.26 Books of Account. The Corporation maintains its
books and records on a cash basis of accounting. The books and records of
account of Corporation fairly and correctly disclose, in all material respects
and in accordance with generally accepted accounting principles (with the
exception of accounts payable, accounts receivable and accrued liabilities, and
other exceptions consistent with cash basis accounting), consistently applied,
the financial position of Corporation as of the date hereof, and all material
financial transactions of Corporation have been accurately recorded in such
books and records.
3.1.27 Approvals. Except as shall be obtained prior to
Closing, there are no approvals, consents or waivers required to be obtained or
applications required to be filed with governmental authorities or any other
Person whatsoever, including pursuant to any leases or contracts containing
prohibitions or consent provisions to the transactions described herein, in
order to permit the transactions contemplated herein or to preserve the
Business and/or assets of Corporation. Any and all such approvals, consents,
and waivers shall be or shall have been obtained by Shareholders and
Corporation prior to Closing.
3.1.28 Compliance. Corporation is not in violation of
any laws, regulations, decrees or ordinances applicable to the Business
including any laws, regulations, decrees or ordinances pertaining to Medicare
and Medi-Cal.
3.1.29 Full Disclosure. None of the foregoing
representations, warranties and statements of fact contains any untrue
statement of material fact or omits to state any material fact necessary to
make any such statement or representation not misleading to Buyer.
3.2 Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Corporation and Shareholders that each of the
following representations and warranties are true as of the date of this
Agreement, and unless otherwise set forth herein, as of Closing.
3.2.1 Enforceability of Obligations. This Agreement
will, upon Closing, constitute a valid and binding obligation of Buyer
enforceable against it in accordance with its terms.
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3.2.2 Organization and Valid Existence. Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the State of California, and has all necessary corporate power,
authority and capacity to enter into this Agreement and carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder shall be duly
authorized or ratified by all necessary corporate action on the part of Buyer
on or prior to the Closing.
3.2.3 Absence of Conflicting Agreements. Buyer is not
a party to, bound or affected by or subject to any indenture, mortgage, lease,
agreement, instrument, charter or bylaw provision, statute, regulation, order,
judgment, decree or law which would be violated, contravened or breached by, or
under which any default would occur, as a result of the execution and delivery
of this Agreement or the consummation of any of the transactions described
herein.
3.2.4 Litigation. There is no suit, action,
litigation, arbitration proceeding or governmental proceeding, including
appeals and applications for review, pending or, to the best of the knowledge,
information and belief (after due inquiry) of Buyer, threatened against or
involving Buyer, or any judgment, decree, injunction, rule or order of any
court, governmental department, commission, agency, instrumentality or
arbitrator which, in any such case, might adversely affect the ability of Buyer
to enter into this Agreement or to consummate the transactions described
herein.
3.3 No Broker. Each of the Parties represents and warrants to
the other Parties that all negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on between them directly and
without the intervention of any other party in such manner as to give rise to
any valid claims against any of the Parties for a brokerage commission,
finder's fee or other like payment.
3.4 Non-Waiver. No investigations made by or on behalf of Buyer
at any time shall have the effect of waiving, diminishing the scope of or
otherwise affecting any representation or warranty made by Corporation or
Shareholder herein or pursuant hereto.
3.5 Nature and Survival of Representations, Warranties and
Covenants. All statements contained in any certificate or other instrument
delivered by or on behalf of a Party pursuant to or in connection with the
transactions described in this Agreement shall be deemed to be made by such
Party hereunder. All representations, warranties, covenants and agreements
contained herein on the part of each of the Parties shall survive the Closing,
the execution and delivery hereunder of transfer instruments and other
documents of title to the Purchased Assets and payment of all consideration
therefor for a period of two (2) years; except that the provisions of Section
3.1.10 shall continue for a period of five (5) years. Notwithstanding any
provision of this Agreement, the limitations on survivability of the
representations and warranties in this Section 3.5 shall not apply in the case
of fraud or willful misrepresentation.
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4. CONDITIONS PRECEDENT TO THE PERFORMANCE OF THE OBLIGATIONS OF BUYER
AND OF CORPORATION AND SHAREHOLDERS
4.1 Buyer's Conditions. The obligation of Buyer to complete the
purchase of the Purchased Assets hereunder shall be subject to the satisfaction
of, or compliance with in all material respects, at or before the Closing, each
of the following conditions precedent (each of which is hereby acknowledged to
be inserted for the exclusive benefit of Buyer and may be waived by it in whole
or in part).
4.1.1 Truth and Accuracy of Representation of
Corporation and Shareholders at the Closing. All of the representations and
warranties of Corporation and Shareholders made in or pursuant to this
Agreement including, without limitation, the representations and warranties
made by Corporation and Shareholders set forth in Sections 3.1, 3.3, 3.4, and
3.5 hereof, shall be true and correct as of the Closing and with the same
effect as if made at and as of the Closing (except as such representations and
warranties may be affected by the occurrence of events or transactions
expressly contemplated and permitted hereby or by transactions in the ordinary
and normal course of business), and Buyer shall have received a certificate
from the Corporation and each of the Shareholders confirming the correctness of
the representations and warranties of Corporation and Shareholders contained
herein.
4.1.2 Performance of Obligations. Corporation and
Shareholders shall have performed or complied with, in all respects, all of
their obligations, covenants and agreements hereunder.
4.1.3 Receipt of Closing Documentation. All
documentation relating to the due authorization and completion of the purchase
and sale hereunder of the Purchased Assets, and all actions and proceedings
taken on or prior to the Closing in connection with the performance by
Corporation and Shareholders of their obligations under this Agreement, shall
be satisfactory to Buyer and Buyer's legal counsel. Buyer shall have received
copies of all such documentation or other evidence as it may reasonably request
in order to establish the consummation of the transactions described herein,
and the taking of all corporate proceedings in connection therewith in
compliance with these conditions, in form (as to certification and otherwise)
and substance satisfactory to Buyer and Buyer's legal counsel.
4.1.4 Consents, Authorizations and Registrations. With
respect to consents, approvals, orders, and authorizations, the following shall
apply:
4.1.4.1 All consents, approvals, orders
and authorizations of any Persons or governmental authorities (or
registrations, declarations, filings or recordings with any such authorities)
required in connection with (i) the completion of any of the transactions
described in this Agreement, (ii) the execution of the Agreement, (iii) the
Closing or (iv) the performance of any of the terms and conditions hereof
(collectively, the "Approvals"), shall have been obtained on or before the
Closing; and
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4.1.4.2 Corporation and Shareholders
shall have obtained and delivered by Closing to Buyer written consents, in form
and substance satisfactory to Buyer, to the transfer and assignment of the
Purchased Assets which assignments shall be in the form of Exhibit U, and shall
include the acknowledgment by each hospital or entity which is a party to such
agreement constituting a Purchased Asset that such agreement is in full force
and effect, and is unmodified.
4.1.5 Other Agreements and Documents. The following
agreements and documents shall have been executed, certified and/or approved,
as applicable, and copies thereof delivered to Buyer on or before the Closing:
4.1.5.1 The employment agreements between
Buyer and physicians described in Exhibit "R" hereto, the forms of which are
attached hereto as Exhibit "S";
4.1.5.2 The covenants not to compete
executed by the Corporation and each Shareholder in the form set forth in
Exhibit "T" hereto; and
4.1.6 Litigation. At and upon the Closing, there shall
be no litigation, governmental investigation or proceeding pending or
threatened for the purpose of enjoining or preventing the consummation of any
of the transactions described in this Agreement or otherwise claiming that such
consummation is improper.
4.1.7 Tax Returns. Buyer shall have received the 1995,
1994, and 1993 calendar years' tax returns of Corporation.
4.1.8 Financial. Buyer, in Buyer's sole and absolute
discretion, shall be satisfied with the accuracy and sufficiency of the
Financial Statements and all other financial records of Corporation.
4.1.9 Board Approval. Buyer shall have received the
approval and authorization of its Board of Directors to the entering into of
this Agreement.
4.2 Corporation's and Shareholders' Conditions. The obligations
of Corporation and Shareholders to complete the sale of the Purchased Assets
hereunder shall be subject to the satisfaction of or compliance with, at or
before the Closing, each of the following conditions precedent (each of which
is hereby acknowledged to be inserted for the exclusive benefit of Corporation
and Shareholders and may be waived by them in whole or in part):
4.2.1 Truth and Accuracy of Representations of Buyer at
Closing Time. All of the representations and warranties of Buyer made in or
pursuant to this Agreement including, without limitation the representations
and warranties made by Buyer and set forth in Sections 3.2, 3.3, and 3.5
hereof, shall be true and correct as at the Closing and with the same effect as
if made at and as of the Closing, and Corporation and Shareholders shall have
received a certificate from Buyer confirming
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the truth and correctness of the representations and warranties of Buyer
contained herein.
4.2.2 Performance of Obligations. Buyer shall have
performed or complied with, in all material respects, all of its obligations,
covenants and agreements hereunder.
4.2.3 Receipt of Closing Documentation. All
documentation relating to the due authorization and completion of the purchase
and sale hereunder of the Purchased Assets, and all actions and proceedings
taken on or prior to the Closing in connection with the performance by Buyer of
its obligations under this Agreement, shall be satisfactory to Corporation and
Corporation's counsel, and Corporation shall have received copies of all such
documentation or other evidence as it may reasonably request in order to
establish the consummation of the transactions described herein, and the taking
of all corporate proceedings in connection therewith in compliance with these
conditions, in form (as to certification and otherwise) and substance
reasonably satisfactory to Corporation and Corporation's counsel.
4.2.4 Litigation. At and upon the Closing, there shall
be no litigation, governmental investigation or proceeding pending or
threatened for the purpose of enjoining or preventing the consummation of any
of the transactions described in this Agreement or otherwise claiming that such
consummation is improper.
5. OTHER COVENANTS OF THE PARTIES
5.1 Access for Investigation. Shareholders shall cause
Corporation to (i) permit Buyer and Buyer's employees, agents, counsel and
accountants or other representatives, without interference in the ordinary
conduct of the Business of Corporation and at Buyer's sole cost and expense, to
have free and unrestricted access prior to the Closing during normal business
hours to the premises, and to all the books, accounts, records and other data
of Corporation (including, without limitation, all corporate, accounting and
tax records of Corporation), and to the properties and assets of Corporation,
and (ii) furnish with respect to the business, properties and assets of
Corporation as Buyer shall from time to time reasonably request to enable
confirmation of the matters warranted in Section 3.1 hereof. Without limiting
the generality of the foregoing, it is agreed that the accounting
representatives of Buyer shall be afforded ample opportunity to make a full
investigation of all aspects of the financial affairs of Corporation. Until
the Closing, and in the event of the termination of this Agreement without
consummation of the transactions described herein, Buyer will keep confidential
any information (unless readily available from public or published information
or sources) obtained from Corporation or any Shareholder. If this Agreement is
so terminated, promptly after such termination, all documents, work papers and
other written material obtained from any Person in connection with this
Agreement and not theretofore made public (including all copies thereof), shall
be returned to the Person which provided such material.
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5.2 Actions to Satisfy Closing Conditions. Each of the Parties
hereby agrees to take all such reasonable actions as are within its control,
and to use its best efforts to cause other actions to be taken which are not
within its control, so as to ensure compliance with any conditions set forth in
Section 4 hereof which are for the benefit of any other Party.
5.3 Post Closing Access for Records Review. With respect to
post-Closing access, the Parties agree as follows:
5.3.1 Post Closing Access to Corporation. Until the
date which is seven (7) years following the Closing Date, Buyer will give
Corporation free and unrestricted access to (and the right to make copies
thereof at the Corporation's own expense) the books, files, records of Buyer to
the extent they relate to the events arising on or prior to the Closing Date,
with respect to the Purchased Assets. Any review or access permitted to the
Corporation under this Section shall be conducted by it in good faith, with a
reasonable purpose and in a manner so as not to interfere unreasonably with the
operations of Buyer following the Closing. Buyer will not destroy or dispose
of any such books, files, or records prior to the expiration of such 7-year
period. Following the expiration of such 7-year period, Buyer will give
Corporation at least sixty (60) days' advance notice of its intention to
destroy or dispose of any such books, files, or records. During such 60-day
period, Corporation will have the right to take possession of any such books,
files, or records or to make copies thereof, all at its own expense.
5.3.2 Post Closing Access to Buyer. Until the date
which is seven (7) years following the Closing Date, Corporation and
Shareholders will give to Buyer free and unrestricted access to (and the right
to make copies thereof at the Buyers' own expense) the books, files, records
and tax returns of Corporation as to events arising prior to the Closing Date
with respect to the Purchased Assets or the Business. Any review or access
permitted to the Buyer under this Section shall be conducted by Buyer in good
faith, with a reasonable purpose and in a manner so as not to interfere
unreasonably with the operations of Corporation or the Shareholders following
the Closing. Neither Corporation nor Shareholders will destroy or dispose of
any such books, files, records or tax returns prior to the expiration of such
7-year period. Following the expiration of such 7-year period, Corporation and
Shareholders will give to Buyer at least sixty (60) days' advance notice of
their intention to destroy or dispose of any such books, files, records or tax
returns. During such 60-day period, Buyer will have the right to take
possession of any such books, files, records or tax returns or to make copies
thereof, all at its own expense.
6. INDEMNIFICATION
6.1 Tax Indemnity. Except as set forth in Exhibit "E" hereto,
Corporation and Shareholders will be responsible for the payment of, and will
indemnify Buyer for, all unpaid or reassessed taxes of the Corporation,
including, without limitation, federal, state and local income, franchise,
sales or use, property, payroll, SUTA and
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FUTA taxes, and any duties, charges, penalties, interest and fines, if any,
which are assessed against the Buyer or which become a lien on the Purchased
Assets.
6.2 Indemnity by Corporation and Shareholders for Pre-Closing
Acts or Omissions. Corporation and Shareholders hereby agree to indemnify and
save harmless Buyer from and against any claims, demands, actions, causes of
action, damage, loss, costs, liability or expense ("Claims") which may be
brought against Buyer and/or which it may suffer or incur as a result of, in
respect of, or arising out of the acts, omissions or other conduct of
Corporation and/or Shareholders occurring or arising prior to Closing, with
respect to the operation of the Business, or ownership of the Purchased Assets.
6.3 Limited Indemnity by Buyer for Post-Closing Acts or
Omissions. Buyer hereby agrees to indemnify and save harmless Corporation from
and against any claims, demands, actions, causes of action, damage, loss,
costs, liability or expense ("Claims") which may be brought against it and/or
which it may suffer or incur as a result of, in respect of, or arising out of
the acts, omissions or other conduct of Buyer occurring or arising subsequent
to Closing, with respect to the Purchased Assets; provided, however that this
indemnification and save harmless by Buyer shall not apply to post-Closing acts
or omissions or other conduct of the Shareholders or Corporation.
6.4 Indemnity Limited to Extent Loss Not Covered by Insurance.
The obligation of a Party to indemnify and save harmless any other Party
pursuant to this Agreement shall only apply to the extent that such loss or
claim is not covered by insurance.
6.5 Procedure for Indemnity. Corporation and Shareholders
hereby covenant and agree with Buyer, and Buyer hereby covenants and agrees
with Corporation (the Party or Parties so covenanting and agreeing to indemnify
another Party hereinafter referred to as the "Indemnifying Party" and the Party
to be indemnified being hereinafter referred to as the "Indemnified Party") to
indemnify and save harmless the Indemnified Party, effective as and from the
Closing, from and against any Claims which may be brought against the
Indemnified Party and/or which it may suffer or incur as a result of, in
respect of, or arising out of any material non-fulfillment of any covenant or
agreement on the part of the Indemnifying Party under this Agreement or any
incorrectness in or breach of any representation or warranty of the
Indemnifying Party contained herein or in any certificate or other document
furnished by the Indemnifying Party pursuant hereto. Notwithstanding the
procedure for indemnity contained in this Section 6.5, in the event a claim is
made by Buyer for breach of a covenant not to compete as to a Shareholder, the
Buyer shall not have any right to indemnification for a loss due to such breach
from any Shareholder, other than the Shareholder against whom such breach is
alleged. The foregoing obligation of indemnification in respect of such Claims
shall be subject to the following requirements:
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6.5.1 Notification of Claims. In the event of the
occurrence of an event that any party asserts constitutes, a claim for
indemnity under this Agreement, as applicable, the Indemnified Party shall
provide the Indemnifying Party with prompt notice of such event and shall
otherwise make available to the Indemnifying Party all relevant information
that is material to the claim and that is in the possession of the Indemnified
Party. If such event involves the claim of any third party (a "Third-Party
Claim"), the Indemnifying Party shall have the right to elect to join in the
defense, settlement, adjustment or compromise of any such Third-Party Claim,
and to employ counsel to assist such Indemnifying Party in connection with the
handling of such claim, at the sole expense of the Indemnifying Party, and no
such claim shall be settled, adjusted or compromised, or the defense thereof
terminated, without the prior consent of the Indemnifying Party unless and
until the Indemnifying Party shall have failed, after the lapse of a reasonable
period of time, but in no event more than thirty (30) days after written notice
to it of the Third-Party Claim, to join in the defense, settlement, adjustment
or compromise of the same. An Indemnified Party's failure to give timely
notice or to furnish the Indemnifying Party with any relevant data and
documents in connection with any Third-Party Claim shall not constitute a
defense (in part or in whole) to any claim for indemnification by such party,
except and only to the extent that such failure shall result in any material
prejudice to the Indemnifying Party. If so desired by any Indemnifying Party,
such party may elect, at such party's sole expense, to assume control of the
defense, settlement, adjustment or compromise of any Third-Party Claim, insofar
as such claim relates to the liability of the Indemnifying Party, provided that
such Indemnifying Party shall obtain the consent of all indemnified parties
before entering into any settlement, adjustment or compromise of such claim, or
ceasing to defend against such claim, if as a result thereof, or pursuant
thereto, there would be imposed on an Indemnified Party a liability or
obligation not covered by the indemnity obligations of the Indemnifying Parties
under this Agreement (including, without limitations, any injunctive relief or
other remedy).
6.5.2 A request for indemnification as to any Claims
shall have been made within two (2) years from the Closing Date, except for
Claims pursuant to Section 3.1.10 which shall have been made within five (5)
years from the Closing Date and except for any Claims based upon a fraudulent
or willful misrepresentation.
6.5.3 If the Indemnifying Party is a Shareholder, the
liability of the Shareholder shall be limited to an amount not to exceed the
amount set forth adjacent to such Shareholder's name on Exhibit "W".
6.6 Minimum Aggregate Amount. Any other provision contained in
this Paragraph 6 notwithstanding, Shareholders and Corporation shall only be
liable for indemnifying the Buyer for any Claims or tax indemnity claims under
Paragraph 6.1
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hereof, which in the aggregate, exceed the following amounts, on a cumulative
basis, as of the period listed below, which amount for shall be referred to as
a "Minimum Aggregate Amount":
June 6, 1996 to June 5, 1997 $200,000
June 6, 1997 to June 5, 2001 $300,000
In the event Claims, on a cumulative basis, exceed the Minimum
Aggregate Amount as of such period, the Indemnifying Party shall be liable for
the entire amount of the Claim including the amount below the Minimum Aggregate
Claim, subject, however, to the provisions of Subparagraph 6.5.3 hereof.
6.7 The parties hereto acknowledge and agree that all claims for
breaches of representations or warranties brought by Buyer against Shareholders
or Corporation constitute "Claims", and both such claims, as well as any claims
under Section 6.1, shall be governed exclusively by and shall be subject to the
limitations contained within the indemnification provisions of Paragraph 6
hereof and its subparts.
7. JEOPARDY
Notwithstanding anything to the contrary contained herein, if the
performance by any party hereto of any term, covenant, condition or provision
of this Agreement should violate any statute, ordinance, or be otherwise deemed
illegal by any governmental body or agency (collectively, "Jeopardy Event"),
then the parties shall use their best efforts to meet forthwith and attempt to
renegotiate this Agreement to remove or negate the effect of the Jeopardy
Event.
8. ARBITRATION
In the event of any dispute between or among the parties to this
Agreement, the parties agree to submit the dispute to binding arbitration
before a three-member panel (unless the parties jointly agree to a single
arbitrator), with Corporation and Shareholders, collectively, and Buyer each
selecting one member of the panel within ten (10) days of the demand for
arbitration, and the third member selected by the consent of the other two
members within ten (10) days of the selection of the first two arbitrators;
provided, however, that if either the Corporation and Shareholders,
collectively, or Buyer fails to timely select their respective arbitration
panel member within said ten (10) day period, then the panel shall consist of
the single arbitrator who was timely selected. The Parties further agree as
follows:
8.1 No Previous Affiliation with Party; Qualifications. Each
member shall be a person not currently or previously affiliated with the party
making the selection (or a relative of any such past or current affiliate) and
shall either be an attorney at law or an individual with reasonable knowledge
of the medical business and/or integrated healthcare delivery systems;
provided, however, that at least one of the arbitrators shall be an attorney at
law.
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8.2 Conduct of Arbitration. Such arbitration shall be conducted
in accordance with the rules and procedure then in effect of the American
Arbitration Association in Orange County, California. The arbitration shall be
commenced as soon as reasonably possible and a written decision shall be
rendered within thirty (30) days thereof. The arbitrators' decision shall be
final, binding and enforceable in a court of competent jurisdiction. Any such
arbitration shall be treated as confidential by all parties thereto, except as
otherwise provided by law or as otherwise necessary to enforce any judgment or
order issued by the arbitrators.
8.3 Restraining Order Rights Reserved. Notwithstanding the
foregoing, because time is of the essence of this Agreement, the parties
specifically reserve the right to seek a judicial temporary restraining order,
preliminary injunction or other short term equitable relief if necessary to
prevent irreparable harm, and grant the arbitrator the right to make a final
determination of the parties' rights.
8.4 Cost of Arbitration. The cost of the arbitrator shall be
shared by the parties, except that the prevailing party shall be entitled to
reimbursement thereof in accordance with the provisions of Section 10.12.
9. CONFIDENTIALITY
9.1 Confidential Information. In connection with entering into
this Agreement, Corporation and Shareholders are fully aware of all terms,
conditions and covenants of this Agreement and in connection with their
performance of their respective obligations hereunder, Corporation and/or
Shareholders may become aware of or come into possession of proprietary, or
otherwise confidential information concerning Buyer or affiliates of Buyer
including, without limitation, reports, policies and procedures, marketing or
financial information or other information related to the business or services
of Buyer or affiliated entities of Buyer (collectively, "Confidential
Information").
9.2 Maintenance of Confidentiality by Corporation and
Shareholders. As additional consideration for and as a condition of Buyer
entering into this Agreement, and except as otherwise agreed by all the
parties, Corporation and Shareholders, jointly and severally, agree to treat
all Confidential Information as confidential and secret as required, and to the
fullest extent permissible under applicable law, and shall not disclose any
Confidential Information to any person, except to the extent absolutely
required for proper performance of Corporation's and Shareholders' obligations
hereunder or under applicable law.
9.3 Confidentiality by Buyer. Buyer may have received
confidential information as to the Shareholder's compensation, financial
condition or financial arrangements involving Shareholders. Buyer agrees to
treat all such information as confidential and secret as required, and to the
fullest extent permissible under applicable law, and shall not disclose any
such information to any person, except to the extent absolutely required for
proper performance of Buyer's obligations hereunder or under applicable law.
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9.4 Equitable Relief. The parties agree that the remedy at law
will be inadequate for any breach by any Party of the covenant not to disclose,
use, or benefit from said trade secrets, proprietary information, and/or
confidential information as set forth in Paragraph 9.2 or 9.3. The Parties
further agree that Buyer shall be entitled to an injunction both preliminary
and final, and any other appropriate equitable relief to enforce its rights
under the terms of said covenant. Such remedies shall be cumulative and
non-exclusive, being in addition to any and all other remedies which Buyer may
have. Each Party hereby waives any requirement for securing or posting a bond
in connection with Buyer's obtaining any injunctive or other equitable relief.
9.5 Provisions Survive Closing and Termination. The provisions
of this Section 9 shall survive the Closing and/or termination of this
Agreement.
10. MISCELLANEOUS
10.1 Public Notices. All public notices to third parties and all
other publicity concerning the transactions contemplated by this Agreement
shall be jointly planned and coordinated by the Parties and no Party shall act
unilaterally in this regard without the prior approval of the Parties.
10.2 Expenses. The expenses incurred by each Party hereto in
connection with this Agreement and the transactions described herein shall be
borne by such Party and, in particular, all professional fees incurred by the
Shareholders in connection with the transactions described by this Agreement
shall be borne by Shareholders and not charged to Corporation.
10.3 Time. Time shall be of the essence hereof.
10.4 Notices. All notices, requests, offers, demands or other
communications (collectively, "Notice") given to or by the Parties under this
Agreement shall be in writing and shall be deemed to have been duly given on
the date of service if personally served on the Party to whom Notice is to be
given, or seventy-two (72) hours after mailing by United States mail first
class, registered or certified mail, postage prepaid, addressed to the Party to
whom Notice is to be given, at such Party's address set forth on the signature
page of this Agreement or such other address provided by Notice.
10.5 Assignment. Neither this Agreement nor any rights or
obligations hereunder may be assigned by any Party hereto without the prior
written consent of all other Parties.
10.6 Further Assurances. The Parties hereto shall with
reasonable diligence do all such things and provide all such reasonable
assurances as may be required to consummate the transactions described herein,
and each Party shall provide such further documents or instruments required by
any other Party as may be reasonably necessary or desirable to effect the
purpose of this Agreement and carry out its provisions, whether before or after
the Closing.
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10.7 Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only, are not part of
this Agreement and do not in any way limit or amplify the terms or provisions
of this Agreement.
10.8 Integration. This Agreement and any Exhibits referenced
herein constitute the entire agreement between the parties with respect to the
subject matter contained herein and supersedes all agreements, representations
and understandings of the parties with respect to such subject matter made or
entered into prior to the date of this Agreement.
10.9 No Third Party Beneficiaries. This Agreement is entered
into solely for the benefit of the parties hereto and no term, provision or
covenant hereunder shall confer or be deemed to confer a benefit on any third
party.
10.10 Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by all
parties hereto. No waiver of any provision of this Agreement shall constitute,
or be deemed to constitute, a waiver of any other provision, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
10.11 Governing Law. This Agreement shall be governed by and
interpreted under California law.
10.12 Attorney's Fees. In the event any action at law or in
equity or other proceeding or arbitration is brought to interpret or enforce
this Agreement, or in connection with any provision of this Agreement, the
prevailing party shall be entitled to its reasonable attorney's fees and other
costs reasonably incurred in such action or proceeding.
10.13 Gender. Unless the context otherwise requires, the singular
includes the plural and vice versa, and the masculine, feminine and neuter
include each other.
10.14 Severability. If any provision of this Agreement is invalid
or contravenes California law, such provision shall be deemed not to be a part
of this Agreement and shall not affect the validity or enforceability of its
remaining provisions.
10.15 Exhibits. The attached Exhibits "A" through "X", inclusive,
constitute a material part of this Agreement and are to be construed as
incorporated in this Agreement and made a part hereof.
10.16 Advice of Counsel. Shareholders specifically acknowledge
that (a) the Law Firm of Verano & Verano has not represented any Shareholder in
the negotiation, drafting or implementation of this Agreement, including all
documents executed or delivered in connection with the Agreement, (b) Verano &
Verano has not provided legal, tax or other advice or counsel to any
Shareholder, (c) Verano & Verano has not recommended to any party that said
party should execute this Agreement, and (d)
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Shareholder has been encouraged to retain legal and tax advice prior to signing
this Agreement to ensure that Shareholder is aware of the full consequences,
rights and obligations of the Shareholder under this Agreement and all other
documents delivered in connection with this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement for
Purchase and Sale of Stock as of the date first set forth above.
BUYER: PEDIATRIX MEDICAL GROUP OF CALIFORNIA, P.C.
By: /s/Carlos A. Perez
------------------------------------------
Its: President
--------------------------------------
Address:
-----------------------------
-----------------------------
-----------------------------
CORPORATION: INFANT CARE SPECIALISTS MEDICAL GROUP, INC.
By: /s/M. Douglas Cunningham, M.D.
------------------------------------------
Its: Vice President
--------------------------------------
Address:
-----------------------------
-----------------------------
-----------------------------
SHAREHOLDERS: /s/James Banks, M.D.
-----------------------------------------------
James Banks, M.D.
Address:
-----------------------------
-----------------------------
/s/M. Douglas Cunningham, M.D.
-----------------------------------------------
M. Douglas Cunningham, M.D.
Address:
-----------------------------
-----------------------------
/s/Louis Gluck, M.D.
-----------------------------------------------
Louis Gluck, M.D.
Address:
-----------------------------
-----------------------------
/s/Marc Leitner, M.D.
-----------------------------------------------
Marc Leitner, M.D.
Address:
-----------------------------
-----------------------------
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/s/Marc Lerner, M.D.
-----------------------------------------------
Marc Lerner, M.D.
Address:
----------------------------
----------------------------
/s/Jeffrey Martin, M.D.
-----------------------------------------------
Jeffrey Martin, M.D.
Address:
----------------------------
----------------------------
/s/Ronald Naglie, M.D.
-----------------------------------------------
Ronald Naglie, M.D.
Address:
----------------------------
---------------------------
/s/Jack Sills, M.D.
-----------------------------------------------
Jack Sills, M.D.
Address:
----------------------------
----------------------------
/s/Feizal Waffarn, M.D.
-----------------------------------------------
Feizal Waffarn, M.D.
Address:
----------------------------
----------------------------
/s/Michael Barsotti, M.D.
-----------------------------------------------
Michael Barsotti, M.D.
Address:
----------------------------
----------------------------
/s/Cindy Chen, M.D.
-----------------------------------------------
Cindy Chen, M.D.
Address:
----------------------------
----------------------------
/s/Veeraiah Chundu, M.D.
-----------------------------------------------
Veeraiah Chundu, M.D.
Address:
----------------------------
----------------------------
/s/Elizabeth DeMagno, M.D.
-----------------------------------------------
Elizabeth DeMagno, M.D.
Address:
----------------------------
----------------------------
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/s/Armida Esparza, M.D.
-----------------------------------------------
Armida Esparza, M.D.
Address:
----------------------------
----------------------------
/s/Mikko Hallman, M.D.
-----------------------------------------------
Mikko Hallman, M.D.
Address:
----------------------------
----------------------------
/s/Gilbert Martin, M.D.
-----------------------------------------------
Gilbert Martin, M.D.
Address:
----------------------------
----------------------------
/s/Jay Schick, M.D.
-----------------------------------------------
Jay Schick, M.D.
Address:
----------------------------
----------------------------
/s/Bruce Sindel, M.D.
-----------------------------------------------
Bruce Sindel, M.D.
Address:
----------------------------
----------------------------
/s/Richard E. Swensson, M.D.
-----------------------------------------------
Richard E. Swensson, M.D.
Address:
----------------------------
----------------------------
/s/Linda Yang, M.D.
-----------------------------------------------
Linda Yang, M.D.
Address:
----------------------------
----------------------------
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