1
EXHIBIT 99.1
FIRST AMENDED
SERIES A PREFERRED STOCK
PURCHASE AGREEMENT
AMONG
COMMUNITY HEALTH COMPUTING CORP.,
COMMUNITY HEALTH COMPUTING, INC.
AND
ADAC LABORATORIES
FEBRUARY 24, 1995
EXHIBIT "B"
2
TABLE OF CONTENTS
PAGE
1. AGREEMENT TO SELL AND PURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Authorization of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Sale and Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND CHCI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Organization, Good Standing, Qualification and Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
3.3 Authorization; Binding Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.4 Bankruptcy Court Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 Notices in Bankruptcy Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.6 No Change of Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.7 No "Worthless Stock" Deduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
4.1 Requisite Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 Bankruptcy Court and Other Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 Hart-Scott-Rodino Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.3 Operation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.4 Preservation of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.5 Executory Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.6 No "Worthless Stock" Deduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.7 Purchaser Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.8 Bankruptcy Court Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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TABLE OF CONTENTS
Page
6. CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Conditions to Purchaser's Obligations to Establish Closing Date and Close . . . . . . . . . . . . . . . 6
6.2 Additional Conditions to Purchaser's Obligation to Close. . . . . . . . . . . . . . . . . . . . . . . . 8
6.3 Conditions to the Company's Obligation to Close. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1 Termination by Mutual Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.2 Termination by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 Termination by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.4 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.4 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.5 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.6 Delays or Omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.8 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.9 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.10 Titles and Subtitles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii.
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INDEX TO EXHIBITS
Exhibit A Restated Certificate of Incorporation of the Company
Exhibit B Form of Modification of Loan Agreements
Exhibit C Form of Termination of Call Agreement
Exhibit D Form of Opinion of Counsel to the Company and CHCI
Exhibit E Form of Opinion of Counsel to Purchaser
iii.
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FIRST AMENDED
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS FIRST AMENDED SERIES A PREFERRED STOCK PURCHASE AGREEMENT (the
"AGREEMENT") is entered into as of February __, 1995 among COMMUNITY HEALTH
COMPUTING CORP., a Delaware corporation (the "Company"), COMMUNITY HEALTH
COMPUTING, INC., a Texas corporation ("CHCI"), and ADAC LABORATORIES, a
California corporation ("Purchaser").
RECITALS
A. On December 7, 1994 (the "Filing Date"), the Company and CHCI
commenced separate cases under Chapter 11 of Title 11 of the United States Code
(the "Bankruptcy Code") by filing voluntary petitions with the United States
Bankruptcy Court for the Southern District of Texas, Houston Division (the
"Bankruptcy Court"), which Chapter 11 cases are now pending as Case Nos.
94-48483-H2-11 and 94-48484-H3-11 and are collectively hereinafter referred to
as the "Chapter 11 Case". No trustee has been appointed, and the Company and
CHCI continue to operate their respective businesses and are in possession of
their property as debtors-in-possession.
B. On December 7, 1994, the Company, CHCI and Purchaser entered
into a Post-Petition Financing Agreement (the "Post-Petition Financing
Agreement") pursuant to which Purchaser has provided the Company and CHCI with
debt financing, secured by a lien on substantially all of their assets, in the
aggregate amount of approximately $______________.
C. On January 12, 1995, CHCC and CHCI filed with the Bankruptcy
Court their proposed Plan of Reorganization, together with a proposed form of
Disclosure Statement with respect thereto (the "Disclosure Statement").
D. On January 12, 1995, the parties hereto entered into a Series
A Preferred Stock Purchase Agreement pursuant to which Purchaser shall acquire
four million (4,000,000) shares of the Company's Series A Preferred Stock.
E. Pursuant to a letter dated January 12, 1995, the parties
agreed, among other things, to amend Section 6.1(e) of the Series A Preferred
Stock Purchase Agreement.
F. The Company and CHCI have prepared and reviewed with
Purchaser, and intend to file with the Bankruptcy Court forthwith, their
proposed First Amended Plan of Reorganization (the "Amended Plan"), together
with a proposed form of Disclosure Statement with respect thereto (the
"Disclosure Statement").
G. The Amended Plan contemplates, among other things, (i) the
forgiveness by Purchaser of the obligations of the Company and CHCI to pay an
aggregate of four million dollars ($4,000,000) of principal and interest owed
to Purchaser under the Post-Petition
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Financing Agreement and/or that certain Loan Agreement dated as of November 30,
1994 among the Company, CHCI and Purchaser, and (ii) in consideration of such
forgiveness of indebtedness, the issuance by the Company to Purchaser of an
aggregate of four million (4,000,000) shares of a new series of the Company's
preferred stock, designated Series A Preferred Stock (the "Shares"), which,
together with any shares of common stock that may be issued to Purchaser upon
voluntary conversion thereof and certain options to purchase shares of common
stock to be issued pursuant to Purchaser's direction, will constitute all of
the outstanding equity securities of the Company immediately after the Closing
(as defined in Section 2 below).
H. The Company desires to sell and issue, and Purchaser desires
to purchase, the Shares on the terms and conditions set forth herein and in the
Amended Plan and the Disclosure Statement.
NOW, THEREFORE, the parties hereby agree that the Series A Preferred
Stock Purchase Agreement dated January 12, 1995 shall be restated and amended
to read in its entirety as follows:
AGREEMENT
1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing
Date (as defined in Section 2 below), the Company shall have authorized the
sale and issuance to Purchaser of the Shares having the rights, preferences,
privileges and restrictions set forth in the Amended and Restated Certificate
of Incorporation of the Company, in the form attached hereto as Exhibit A (the
"Restated Certificate").
1.2 SALE AND PURCHASE. Subject to the terms and
conditions hereof, at the Closing (as defined in Section 2 below), the Company
hereby agrees to issue and sell the Shares to Purchaser, and Purchaser agrees
to purchase the Shares from the Company, for the consideration and otherwise on
the terms and conditions set forth herein.
1.3 CONSIDERATION. In full payment for the Shares, at
the Closing, Purchaser will:
(a) deliver to the Company and CHCI a duly
executed Modification of Loan Agreements in the form attached hereto as Exhibit
B against delivery by the Company and CHCI of duly executed counterparts of
such agreement; and
(b) deliver to the other parties to the Call
Agreement dated as of November 29, 1994 between Purchaser and certain
shareholders of the Company a duly executed Termination of Call Agreement in
the form attached hereto as Exhibit C against delivery by all of such
shareholders of duly executed counterparts of such agreement.
2.
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2. CLOSING.
2.1 CLOSING. Within ten (10) business days after the
first date on which all of the conditions to Purchaser's obligation to close
set forth in Section 6.1 are satisfied (the "Condition Satisfaction Date"),
Purchaser shall notify the Company as to the date, time and location for the
closing of the sale and purchase of the Shares under this Agreement (the
"Closing"). The date so specified (the "Closing Date") shall be as soon as
reasonably practicable (but in any event within thirty 30 days) after the
Condition Satisfaction Date.
2.2 DELIVERY. At the Closing, subject to the terms and
conditions hereof, the Company will deliver to Purchaser a certificate
representing the Shares against delivery by Purchaser of the consideration
therefor.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND CHCI.
Each of the Company and CHCI hereby represents and warrants to
Purchaser as follows:
3.1 ORGANIZATION, GOOD STANDING, QUALIFICATION AND
SUBSIDIARIES.
(a) THE COMPANY. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has all requisite corporate power and authority
to own and operate its properties and assets, execute, deliver and perform its
obligations under this Agreement, and carry on its business as presently
conducted. The Company is duly qualified and is authorized to do business and
is in good standing as a foreign corporation in all jurisdictions in which the
nature of its activities and of its properties (both owned and leased) makes
such qualification necessary, except for those jurisdictions in which failure
to do so would not have a material adverse effect on the Company or its
business. The Company owns all of the outstanding equity securities of CHCI.
The Company is not a participant in any joint venture, partnership or similar
arrangement.
(b) CHCI. CHCI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas.
CHCI has all requisite corporate power and authority to own and operate its
properties and assets, execute, deliver and perform its obligations under this
Agreement, and carry on its business as presently conducted. CHCI is duly
qualified and is authorized to do business and is in good standing as a foreign
corporation in all jurisdictions in which the nature of its activities and of
its properties (both owned and leased) makes such qualification necessary,
except for those jurisdictions in which failure to do so would not have a
material adverse effect on CHCI or its business. The Company owns all of the
outstanding equity securities of CHCI, and CHCI owns no equity securities of
any other corporation, limited partnership or similar entity other than shares
of CHC (UK) Ltd. CHCI is not a participant in any joint venture, partnership
or similar arrangement.
3.2 CAPITALIZATION. Immediately prior to the Closing:
(a) the authorized capital stock of the Company will consist of Twenty Million
(20,000,000) shares of Common
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Stock, par value $.0001 per share, none of which will be outstanding, and Ten
Million (10,000,000) shares of Preferred Stock, par value $.0001 per share,
Four Million (4,000,000) shares of which will be designated Series A Preferred
Stock, none of which will be outstanding; (b) the rights, preferences,
privileges and restrictions of the Shares will be as stated in the Restated
Certificate; (c) there will be no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first refusal), proxy
or shareholder agreements, or agreements of any kind for the purchase or
acquisition from the Company of any of its securities; and (d) the Company will
have no obligation to repurchase any of its capital stock.
3.3 AUTHORIZATION; BINDING OBLIGATIONS. All corporate
action on the part of the Company, CHCI, their respective officers, directors
and shareholders necessary for the authorization of this Agreement, the
performance of all obligations of the Company and CHCI hereunder and the
authorization, sale, issuance and delivery of the Shares pursuant hereto has
been taken or will be taken prior to the Closing. This Agreement is a valid
and binding obligation of the Company and CHCI, enforceable against the Company
and CHCI in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights or general principles of
equity that restrict the availability of equitable remedies. When issued in
compliance with the provisions of this Agreement and the Restated Certificate,
the Shares will be validly issued, fully paid and nonassessable. The sale of
the Shares is not subject to any preemptive rights or rights of first refusal
that have not been properly waived or complied with.
3.4 BANKRUPTCY COURT FILINGS. Each of the Company and
CHCI has delivered to Purchaser complete and accurate copies of all filings
made with the Bankruptcy Court by it in connection with the Chapter 11 Case.
3.5 NOTICES IN BANKRUPTCY PROCEEDING. Each of the
Company and CHCI has given proper notice of the commencement of, and of all
motions, complaints and other events in, its Chapter 11 Case to all creditors,
equity interest holders and other parties in interest as and to the extent
required by applicable provisions of the Bankruptcy Code and the rules
thereunder.
3.6 NO CHANGE OF OWNERSHIP. Neither the Company nor CHCI
has, at any time since December 7, 1991, experienced an "ownership change"
within the meaning of Section 382 of the Internal Revenue Code of 1986, as
amended.
3.7 NO "WORTHLESS STOCK" DEDUCTION. The Company has not
claimed, on any federal or state income tax return, any "worthless stock"
deduction with respect to its investment in or equity securities of CHCI.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to the Company and CHCI as follows:
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all
necessary power and authority under all applicable provisions of law to execute
and deliver this Agreement and to perform its obligations hereunder. All
action on Purchaser's part required for the lawful
4.
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execution and delivery of this Agreement have been taken or will be taken prior
to the Closing. This Agreement is a valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights and general principles
of equity that restrict the availability of equitable remedies.
4.2 CONSENTS. All consents, approvals, orders,
authorizations, registrations, qualifications, designations, declarations or
filings with any governmental or banking authority on the part of Purchaser
required in connection with the consummation of the transactions contemplated
by this Agreement have been or shall have been obtained prior to and be
effective as of the Closing.
5. COVENANTS.
5.1 BANKRUPTCY COURT AND OTHER APPROVALS. Each of the
Company and CHCI agrees to use its best efforts to obtain promptly the approval
of the Disclosure Statement and confirmation of the Amended Plan by the
Bankruptcy Court through the entry of an order to that effect (the
"Confirmation Order") and promptly to prepare all filings, applications and
notices preliminary to obtaining such Bankruptcy Court approvals and all other
approvals and permits that Purchaser may deem necessary or desirable in
connection with the transactions contemplated by this Agreement. Each of the
Company and CHCI further agrees that it will not, without Purchaser's consent,
seek or approve any modification or amendment of the Amended Plan affecting
Purchaser's rights or obligations thereunder or hereunder or revocation of
confirmation of the Amended Plan.
5.2 HART-SCOTT-RODINO COMPLIANCE. Each of the Company
and CHCI agrees to cooperate with Purchaser for the purpose of taking such
actions, if any, as may be deemed by Purchaser to be necessary or desirable in
order to effect compliance with the Hart-Scott- Rodino Antitrust Improvements
Act of 1976, as amended (the "HSR Act"). The parties understand that Purchaser
intends to prepare and file any notification required by the HSR Act after
satisfaction of all of the conditions set forth in Section 6.1, other than the
condition set forth in Sections 6.1(b), (e) and (f). Purchaser reserves the
right to file such notification at any time prior to the satisfaction of such
conditions.
5.3 OPERATION OF BUSINESS. Prior to the Closing, except
as required by law or Bankruptcy Court order, each of the Company and CHCI will
operate its business (other than such assets that are necessary to the
businesses owned by the Company or CHCI and operated principally in Atlanta,
Georgia and Dallas, Texas) only in the ordinary course of business and
consistent with prior practices, keeping available its present employees and
preserving the goodwill of all customers, suppliers and others having business
relationships with the Company and/or CHCI.
5.4 PRESERVATION OF ASSETS. Prior to the Closing, the
Company will not dispose or agree to dispose of any portion of the equity
securities of CHCI owned by it. Prior to the Closing, except in the ordinary
course of business or with Purchaser's prior written
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approval, neither the Company nor CHCI will dispose or suffer the loss of any
material asset heretofore utilized in its business, other than (a) the stock of
CHC (UK) Ltd. or (b) assets that are (i) necessary to the businesses owned by
the Company or CHCI and operated principally in Atlanta, Georgia and Dallas,
Texas, and (ii) not necessary to, or used in, the remaining core businesses of
the Company or CHCI.
5.5 EXECUTORY CONTRACTS. Prior to the Closing, except
with Purchaser's prior written approval, neither the Company nor CHCI will (a)
reject or forego any opportunity to renew any contract to which it is a party
which may be material to the operation of the remaining core businesses of the
Company or CHCI after the Closing, or (b) affirm or renew any contract to which
it is a party which may entail any material obligation or liability on the part
of the Company or CHCI after the Closing.
5.6 NO "WORTHLESS STOCK" DEDUCTION. Prior to the
Closing, the Company will not claim, on any federal or state income tax return,
any "worthless stock" deduction with respect to its investment in or equity
securities of CHCI.
5.7 PURCHASER ACCESS. Prior to the Closing, each of the
Company and CHCI will allow Purchaser and its authorized representatives to
have full access during normal business hours to all of the Company's
properties, assets, records, contracts and other documents and will provide
Purchaser and its authorized representatives with such financial and other
information as Purchaser may from time to time request.
5.8 BANKRUPTCY COURT FILINGS. Prior to the Closing, each
of the Company and CHCI will deliver to Purchaser, mailed within one (1) day
after their filing, complete and accurate copies of all filings made by it with
the Bankruptcy Court in connection with the Chapter 11 Case.
6. CONDITIONS TO CLOSING.
6.1 CONDITIONS TO PURCHASER'S OBLIGATIONS TO ESTABLISH
CLOSING DATE AND CLOSE. Purchaser's obligation to establish a Closing Date
pursuant to Section 2.1 is subject to the satisfaction of all of the following
conditions, except for the condition set forth in Sections 6.1(b), (e) and (f),
no later than 5:00 p.m. on April 14, 1995 (or such later date as Purchaser, in
its sole discretion, may accept), and Purchaser's obligation to purchase the
Shares at the Closing is subject to the satisfaction of all of the following
conditions as of the Closing Date:
(a) AMENDED PLAN OF REORGANIZATION. (i) The
Confirmation Order confirming the Amended Plan shall have been entered, (ii)
Purchaser shall be satisfied, in its sole discretion, with the form of the
Confirmation Order, (iii) the Confirmation Order shall remain in effect, and
(iv) the implementation of the Confirmation Order shall not have been stayed or
enjoined.
6.
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(b) HART-SCOTT-RODINO COMPLIANCE. Any applicable
waiting period under the HSR Act shall have expired or been terminated.
(c) OTHER CONSENTS, PERMITS AND WAIVERS. The
Company and CHCI shall have obtained any and all material consents, permits and
waivers necessary or appropriate for consummation of the transactions
contemplated by the Agreement (except for compliance with the HSR Act and such
consents, permits and waivers as may be properly obtained subsequent to the
Closing).
(d) NO MATERIAL ADVERSE CHANGE. Purchaser shall
be satisfied, in its reasonable discretion, that there has been no material
adverse change since the date of this Agreement in the business, assets,
results of operations or financial condition of the Company or CHCI (without
regard for any change in the business, assets, results of operations or
financial condition of any subsidiary, business unit or other portion of the
Company or CHCI that, pursuant to the Amended Plan, will not be owned by the
Company or CHCI immediately after the Closing except to the extent such change
also affects the business, assets, results of operations or financial condition
of those portions of the Company and CHCI that, pursuant to the Amended Plan,
will be owned by the Company or CHCI immediately after the Closing).
(e) EXECUTORY CONTRACTS. With respect to each
executory contract of the Company or CHCI set forth on Schedule 6.1(e) to the
Agreement (which schedule shall be completed by Purchaser on or prior to
February 28, 1995), Purchaser shall be reasonably satisfied with any renewal or
other arrangements that it may reasonably deem necessary or advisable for the
Company or CHCI to enter into. To the extent that any executory contract of
the Company or CHCI is not identified in the schedules of assets and
liabilities filed by the Company and CHCI with the Bankruptcy Court in January
1995, then Purchaser, in its reasonable discretion, shall have the right to
deem any such contract or contracts to be material to the business of the
Company or CHCI after the Closing and Purchaser shall be reasonably satisfied
with any renewal or other arrangements that it may deem necessary or advisable
for the Company or CHCI to enter into with respect to such contract or
contracts. Notwithstanding the foregoing, this Section 6.1(e) shall not apply
to any executory contract of the Company or CHCI pursuant to which the
Company's or CHCI's sole material obligation is to provide maintenance services
or parts to an existing customer of the Company or CHCI.
(f) REPRESENTATIONS AND WARRANTIES TRUE;
PERFORMANCE OF OBLIGATIONS. The representations and warranties made by the
Company and CHCI in Section 3 hereof shall be true and correct in all material
respects as of the Closing Date with the same force and effect as if they had
been made as of the Closing Date, and the Company and CHCI shall have performed
all obligations and conditions herein required to be performed or observed by
them at or prior to the Closing.
(g) PROCEEDINGS AND DOCUMENTS. All corporate and
other proceedings in connection with the transactions contemplated at the
Closing hereby and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to Purchaser and its
counsel, and Purchaser and its counsel shall have received all such
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counterpart originals or certified or other copies of such documents as they
may reasonably request.
6.2 ADDITIONAL CONDITIONS TO PURCHASER'S OBLIGATION TO
CLOSE. Purchaser's obligation to purchase the Shares at the Closing is subject
to the continued satisfaction on the Closing Date of all of the conditions set
forth in Section 6.1 and also to the satisfaction on the Closing Date of the
following conditions:
(a) FILING OF RESTATED CERTIFICATE. The Restated
Certificate shall have been filed with the Secretary of State of the State of
Delaware.
(b) BOARD OF DIRECTORS AND OFFICERS. Either by
operation of the Confirmation Order or otherwise, all of the pre- confirmation
directors and officers of the Company shall have resigned all positions and
offices held with the Company, effective on or prior to the Closing Date, and
the directors and officers of the Company shall consist solely of such persons
as Purchaser shall have designated.
(c) LEGAL OPINION. Purchaser shall have received
a legal opinion, addressed to it, from Verner, Liipfert, Bernhard, McPherson
and Hand, Chartered, counsel to the Company and CHCI, in the form attached
hereto as Exhibit D.
6.3 CONDITIONS TO THE COMPANY'S OBLIGATION TO CLOSE. The
Company's obligation to issue and sell the Shares at the Closing is subject to
the satisfaction, on or prior to the Closing, of the following conditions:
(a) POST-CONFIRMATION LOAN AGREEMENT. Purchaser
shall have delivered to CHCI the consideration provided for in that certain
First Amended Post-Confirmation Loan Agreement of even date between CHCI and
Purchaser.
(b) REPRESENTATIONS AND WARRANTIES TRUE. The
representations and warranties made by Purchaser in Section 4 hereof shall be
true and correct in all material respects at the Closing Date, with the same
force and effect as if they had been made on and as of the Closing Date.
(c) PERFORMANCE OF OBLIGATIONS. Purchaser shall
have performed and complied with all agreements and conditions herein required
to be performed or complied with by Purchaser on or before the Closing.
(d) CONSENTS, PERMITS, AND WAIVERS. Purchaser
shall have obtained any and all material consents, permits and waivers
necessary or appropriate for consummation of the transactions contemplated by
the Agreement (except for such as may be properly obtained subsequent to the
Closing).
(e) LEGAL OPINION. The Company shall have
received a legal opinion, addressed to it, from Purchaser's counsel, in the
form attached hereto as Exhibit E.
8.
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7. TERMINATION.
7.1 TERMINATION BY MUTUAL CONSENT. At any time prior to
Closing, this Agreement may be terminated by mutual written consent of the
Company, CHCI and Purchaser.
7.2 TERMINATION BY PURCHASER. At any time prior to
Closing, this Agreement may be terminated by Purchaser, upon ten (10) days
written notice to the Company, if (a) any of the representations and warranties
set forth in Section 3 is inaccurate in any material respect and such
inaccuracy is not cured within such 10-day period, (b) the Company or CHCI
fails in any material respect to perform any material obligation of the Company
or CHCI hereunder and such failure is not cured within such 10-day period, (c)
the Amended Plan is filed, modified or amended in a manner affecting Purchaser
which Purchaser, in its sole discretion, deems unsatisfactory, or (d) for any
other reason (other than Purchaser's failure to perform any obligation of
Purchaser hereunder), the Closing has not occurred by June 14, 1995.
7.3 TERMINATION BY THE COMPANY. At any time prior to
Closing, this Agreement may be terminated by the Company, upon ten (10) days
written notice to Purchaser, if (a) any of the representations and warranties
set forth in Section 4 is inaccurate in any material respect and such
inaccuracy is not cured within such 10-day period, (b) Purchaser fails in any
material respect to perform any material obligation of Purchaser hereunder and
such failure is not cured within such 10-day period, or (c) for any other
reason (other than the Company's failure to perform any obligation of the
Company or CCHI hereunder), the Closing has not occurred by June 14, 1995.
7.4 EFFECT OF TERMINATION. Upon any termination of this
Agreement pursuant to and in accordance with this Section 7, this Agreement
shall forthwith become void, no party shall have any liability to any other
party or any third party hereunder or with respect hereto, any amounts
remaining owing by the Company or CHCI to Purchaser under the Post-Petition
Financing Agreement shall immediately become due and payable, and Purchaser
shall have no further obligation to provide financing or perform any other acts
under the Post-Petition Financing Agreement.
8. MISCELLANEOUS.
8.1 GOVERNING LAW. This Agreement shall be governed in
all respects by the laws of the State of Texas.
8.2 SUCCESSORS AND ASSIGNS. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
8.3 ENTIRE AGREEMENT. This Agreement, the Exhibits
hereto and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof, and no party shall be liable or bound to
9.
14
any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
8.4 SEPARABILITY. In case any provision of the Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
8.5 AMENDMENT AND WAIVER. This Agreement may be amended
or modified only upon the written consent of the parties, and the rights of a
party hereto may be waived only with the written consent of that party.
8.6 DELAYS OR OMISSIONS. No delay or omission to
exercise any right, power or remedy accruing to a party, upon any breach,
default or noncompliance by the other party under this Agreement shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of
any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter occurring. All
remedies under this Agreement shall be cumulative and not alternative.
8.7 NOTICES. All notices to be given hereunder shall be
in writing and shall be delivered by the quickest practical available method of
delivery (which shall be presumed to be by hand delivery or by facsimile with
hard copy to follow by U.S. Mail as to Purchaser and the Company or CHCI). All
notices to Purchaser and the Company or CHCI shall be delivered as follows:
If to Purchaser, to: ADAC LABORATORIES
540 Alder Drive
Milpitas, California 95035
Attention: Chief Financial Officer
Telephone: (408) 321-9100
Facsimile: (408) 321-9686
with copies to: COOLEY GODWARD CASTRO HUDDLESON & TATUM
One Maritime Plaza, 20th Floor
San Francisco, California 94111
Attention: Kenneth L. Guernsey
Telephone: (415) 693-2000
Facsimile: (415) 951-3699
10.
15
and to: GOLDBERG STINNETT MEYERS & DAVIS
A Professional Corporation
44 Montgomery Street
Suite 2900
San Francisco, California 94104
Attention: Merle C. Meyers
Telephone: (415) 362-5045
Facsimile: (415) 362-2392
IF TO THE COMPANY OR CHCI, TO: COMMUNITY HEALTH COMPUTING CORP.
COMMUNITY HEALTH COMPUTING, INC.
5 Greenway Plaza, Suite 1900
Houston, Texas 77046
Attention: President
Telephone: (713) 960-1907
Facsimile: (713) 960-0164
with a copy to: VERNER, LIIPFERT, BERNHARD, MCPHERSON AND
HAND, CHARTERED
2600 Texas Commerce Tower
Houston, Texas 77002
Attention: John F. Higgins, Esq.
Telephone: (713) 237-9034
Facsimile: (713) 237-1216
and to: HOLLEB & COFF
55 East Monroe Street
Chicago, IL 60603-5896
Attention: Bruce Dopke
Telephone: (312) 807-3900
Facsimile: (312) 807-4600
And such notice shall be deemed to have been given upon delivery.
8.8 EXPENSES. Each party shall pay all costs and
expenses that it incurs with respect to the negotiation, execution, delivery
and performance of the Agreement.
8.9 ATTORNEYS' FEES. In the event that any dispute
between the parties to this Agreement should result in litigation, the
prevailing party in such dispute shall be entitled to recover from the losing
party all fees, costs and expenses of enforcing any right of such prevailing
party under or with respect to this Agreement, including without limitation,
such reasonable fees and expenses of attorneys and accountants, which shall
include, without limitation, all fees, costs and expenses of appeals.
11.
16
8.10 TITLES AND SUBTITLES. The titles of the sections and
subsections of the Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
8.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
THE COMPANY: PURCHASER:
COMMUNITY HEALTH ADAC LABORATORIES
COMPUTING CORP.
By: /s/ JOHN W. DOMINGUEZ By: /s/ MARK L. LAMP
----------------------------- --------------------------------------
Title: President & C.E.O. Title: President, HealthCare Info Systems
--------------------------- -----------------------------------
Address: CHC Address: ADAC Laboratories
5 Greenway Plaza, 540 Alder Drive
Suite 1900 Milpitas, CA 95035
Houston, TX 70046
CHCI:
COMMUNITY HEALTH
COMPUTING, INC.
By: /s/ JOHN W. DOMINGUEZ
------------------------------
Title: President & C.E.O.
---------------------------
Address: CHC
5 Greenway Plaza,
Suite 1900
Houston, TX 77046
12.
17
SCHEDULE 6.1(E)
EXECUTORY CONTRACTS
Purchaser shall provide the Company with a list of contracts by February 28,
1995. The schedule shall include only those agreements with a term that
expires on or before December 31, 1995 and shall not include agreements
pursuant to which the Company's or CHCI's sole material obligation is to
provide maintenance services or parts to an existing customer of the Company or
CHCI.